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Audit Critical of NY Public Service Commission’s Performance Holding Telecom Companies Accountable

New York’s Public Service Commission (PSC) has come under fire in an audit by State Comptroller Thomas DiNapoli for “falling short” monitoring Charter Spectrum, Altice-Optimum, and Windstream, some of the state’s largest telecom companies.

“When New Yorkers flip on the lights, log in or make a call, they should be confident that someone is making sure these service providers are living up to their promises,” DiNapoli said. “My auditors found the state Public Service Commission was not doing enough to make sure utilities are holding up their end of the deal. PSC lacked critical equipment to do its job and rarely inflicted financial consequences when companies did not deliver. This has to change.”

The audit found that the regulator was often arbitrary in its orders, frequently failed to verify compliance of conditions imposed on providers, and quietly dropped compliance penalties including fines and merger revocation orders when the Commission faced pushback from companies.

Most of the audit’s criticism was directed at how the PSC managed the 2016 merger-acquisition of Time Warner Cable by Charter Communications (better known as Spectrum). The merger was approved after Charter agreed to ten deal conditions. But DiNapoli’s auditors found Charter failed to either complete four of these conditions or the PSC failed to verify they were completed. New York also lost the opportunity to collect $5 million from Charter’s failure to meet its rural broadband commitments. Instead, the PSC settled for $1 million and agreed to extend the deadline for Charter to expand its rural footprint, rewarding the company for its failure.

DiNapoli’s audit criticized the PSC’s verification procedures to determine if Charter adequately upgraded its cable systems to all-digital technology and raised broadband speeds by the end of 2018. Instead, the Comptroller found the Commission often took Charter’s word for it because it lacked the equipment and resources to independently verify Charter’s performance.

DiNapoli

The auditors also complained Charter offered scant evidence of compliance with two other terms of its merger approval agreement — wiring 50 community locations for free broadband service and investing at least $50 million to improve service quality for New York customers. The audit found no evidence Charter had wired any community locations for free broadband service, and the Commission failed to verify Charter made suitable investments in service improvements by its May 2018 deadline.

The Commission disagreed with several of the audit’s findings. The Commission claimed it held comprehensive proceedings to review the Charter acquisition of Time Warner Cable, imposed deadlines on the conditions, and eventually threatened to revoke Charter’s cable franchises for the company’s failure to comply with its orders.

“After pursuing escalating enforcement actions, the Commission in mid-2018, revoked the merger authorization,” the Commission responded. “This final enforcement action which revoked the company’s authorization to operate in in the state set an important precedent in New York — and across the nation — as this type of enforcement remedy had not been previously utilized in the regulatory community. Ultimately, the enforcement action was settled in a manner that resulted in a company commitment to expand its network entirely Upstate at an estimated cost of more than $600 million, more than twice the original estimate at the time of the merger approval, and $12 million paid by the company in lieu of penalty for additional network expansion work.”

The settlement effectively rendered the PSC’s fines against Charter for not meeting its rural broadband expansion deadlines moot. The Commission argued New Yorkers benefited more from Charter’s additional commitments to expand its cable footprint even further than originally envisioned.

“The Department utilizes penalty actions in a strategic manner to address violations,” the Commission explained. “It can be more beneficial to the state’s customers to obtain at shareholder expense expanded infrastructure, reductions in rates, or improvements in customer service rather than imposing financial penalties, and when that is the case, the [Commission] does indeed prefer the best response for customers.”

But DiNapoli’s audit noted that utilities are well aware of how to avoid paying fines by delaying their collection indefinitely through legal remedies. The audit slammed the PSC for walking away from collecting the fines owed, noting it “creates a lack of accountability and inspires little motivation to stay in compliance.” It also complained that regardless of what additional remedies the PSC extracted from Charter in a final settlement, tens of thousands of rural New Yorkers remain without the internet service they were promised, and will probably have to wait until as late as 2021 to get it.

“As it has been over three years since the merger was approved, network expansion should have already been provided to approximately 126,875 unserved or underserved premises based on the 2016 Commission Order approving the merger,” the audit found. “As of July 2019, Charter had only extended its network to 64,827 premises. Based on the original Order, 62,048 additional customers should have received access to these services. Charter now has until September 2021 to complete the network expansion of 145,000 premises previously scheduled to be completed by May 2020.”

The PSC also claimed it was distracted by legal actions it was taking surrounding the revocation of the merger’s approval, but after the case was settled, the Commission did undertake random speed testing to verify Charter had raised the broadband speeds as agreed in the merger agreement.

“Staff is confident that, in all areas field tested to date, the Charter network is capable of providing broadband service with download speed in excess of 300 Mbps, and the network itself has the potential to provide download speed beyond 1 Gbps. In fact, the company is marketing 1 Gbps service in much of the New York State service footprint,” the Commission argued.

The Commission confirmed Charter has not yet showed it is providing free broadband service to 50 community service locations, such as libraries, schools, or town halls. Charter initially refused to provide information about the service locations it selected for complimentary service “for privacy reasons.” But since the Commission placed no deadline on complying with this condition, it cannot penalize Charter for not meeting it on a timely basis.

“After multiple discussions, Charter finally provided a list of the 50 Anchor Institutions on July 17, 2019 and included bill copies and/or account screen shots demonstrating no charge for broadband service to these institutions,” the Commission responded. “Staff has been able to independently confirm that 33 of the 50 institutions are receiving broadband service from Charter at no charge. For the remaining institutions, Charter was asked to provide additional evidence that these institutions have been provided this complimentary service. If Charter cannot definitively demonstrate that the 17 institutions are receiving free service, Charter must select a replacement institution in order to fulfill this condition. Once Charter has provided this information, Staff will then begin its independent confirmation.”

The Commission also claims Charter met its obligation to invest at least $50 million in service improvements.

“In its May 2018 Annual Update, Charter provided a list of expenditures totaling over $90 million to comply with this condition. From that list, Staff identified completed projects totaling approximately $70 million that were dedicated to New York State. To verify these expenditures, Staff requested and analyzed actual invoices to determine whether the expenditures were made,” the Commission claimed.

The audit found some of these same issues also applied to two other telecom merger and acquisition deals impacting New York consumers. Altice’s acquisition of Cablevision’s Optimum cable service received approval with five deal conditions. The audit found the Commission failed to adequately verify compliance with three of those conditions, relating to internet speed and performance, free broadband service to 40 community institutions, and improvements to customer service requiring Altice to fix customer issues within two days. The Commission responded that its belated verification found no non-compliance, but the audit urged the Commission not to delay its verification procedures going forward.

FairPoint is now known under the name of its owner, Consolidated Communications.

FairPoint Communications offers telephone and internet service to 13,700 customers in a few rural communities in New York. Its new owner, Consolidated Communications, was required to implement eight deal conditions, and the audit found it failed to meet two of them. FairPoint was required to invest at least $4 million in network reliability and service quality improvements, including the expansion of internet access service to at least 300 additional locations. FairPoint submitted an expansion plan, and updated reports, including the number of locations completed which is claimed to be over 300.

But the audit found the Commission failed to verify these claims, citing inadequate staffing to visit FairPoint’s rural service areas to perform field inspections. The audit found the Commission didn’t bother to verify service improvements in any location. Another deal condition was designed to protect FairPoint’s “customer-facing” employees from layoffs. Soon after the merger, “FairPoint reclassified 9 of the 39 customer-facing positions and ultimately eliminated them, claiming they ‘duplicated work being performed in other work centers.'” The audit’s initial findings triggered an investigation by the PSC to determine if FairPoint violated the terms of its merger order. Ultimately, the Commission found it did not, but the audit warned the PSC was completely unaware of the employment changes until the audit discovered them.

The Comptroller’s Office made four recommendations the PSC should either implement or improve:

  1. Actively monitor all conditions listed in Orders to ensure all utilities are in compliance.
  2. Develop and issue Orders that include well-defined, measurable, and enforceable conditions. The Orders should also include the consequences for non-compliance, as appropriate.
  3. Verify the accuracy of data submitted by utilities that is used by the Commission or Department to evaluate or make decisions concerning the utilities. This includes data submitted for performance metrics, safety standards, and Utility Service Quality Reports.
  4. Develop policies and procedures that provide employees with standard monitoring steps to perform when overseeing compliance with merger or acquisition Orders, as well as steps addressing the auditing of data submitted in support of Utility Service Quality Reports.

Californians That Subscribed to Time Warner Cable Maxx Internet Service Getting A Refund Up to $180

Only former TWC Maxx customers in Southern California qualify for bill credits.

If you were a Time Warner Cable internet customer in California, Charter Communications may refund you up to $180 if the company did not deliver the internet speed it advertised.

Charter has settled the lawsuit filed by the district attorneys of Los Angeles, San Diego, and Riverside that alleged Time Warner Cable knowingly sold customers internet speed it could not deliver. Charter will pay $16.9 million, most of which will be returned to affected customers in the form of a bill credit.

“This historic settlement serves as a warning to all companies in California that deceptive practices are bad for consumers and bad for business,” said Los Angeles County District Attorney Jackie Lacey. “We as prosecutors demand that all service providers — large and small — live up to their claims and fairly market their products.”

There are three tiers of relief for impacted customers:

  • Customers subscribed to Time Warner Cable Maxx internet service in the past will be offered one of two free services. Cable TV and internet customers will receive three free months of Showtime (current subscribers excluded). Internet-only customers will receive one free month of Spectrum Choice, a slimmed down streaming TV package (current subscribers excluded). Both services will automatically be disconnected at the end of the free service period, protecting customers from future billing unless they subsequently subscribe.
  • Internet customers subscribed to a premium Time Warner Cable Maxx speed tier will receive a one time credit of $90.
  • If the customer was also supplied a legacy cable modem unable to support the subscribed premium internet speed tier, the subscriber will receive a one time credit of $180.

Charter Communications will automatically notify impacted subscribers and apply service credits within the next 60 days, but you will have to call Spectrum to activate the Showtime or Spectrum Choice offers.

The settlement also sets aside a payment to the plaintiffs of $1.9 million, to be split evenly between the three cities.

The lawsuit and corresponding settlement are similar to the 2017 internet speed case filed against Time Warner Cable by the New York Attorney General’s office. New York and Los Angeles were among the first cities upgraded to Time Warner Cable Maxx service, which raised internet speed for customers up to 300 Mbps. In New York, the lawsuit alleged Time Warner Cable knowingly advertised higher internet speed its network could not always support because of congestion and antiquated cable equipment and modems.

New York Governor’s Boast About Near-100% Broadband Coverage Backfires

Gov. Andrew Cuomo announcing rural broadband initiatives in New York.

When New York Gov. Andrew Cuomo boasted in 2015 that anyone who wanted broadband service in the state would have access to it, he could not have realized that claim would come back to haunt him five years later.

New York’s Broadband for All program claimed to be the “largest and most ambitious state broadband investment in the nation,” with $500 million set aside “to achieve statewide broadband access by 2018,” with “99.9% of New Yorkers” getting access to broadband service.

In 2020, that goal remains elusive, with over 80,000 New Yorkers relegated to heavily data-capped satellite internet access and potentially tens of thousands more left behind by erroneous broadband availability maps that could leave many with no access at all. Now it appears the federal government will not be coming to the rescue, potentially stranding some rural residents as a permanent, unconnected underclass.

The Republican-majority at the Federal Communications Commission has decided to take the Democratic governor at his word and exclude additional rural broadband funding for New York State. The FCC’s recently approved Rural Digital Opportunity Fund (RDOF) is the most ambitious rural broadband funding initiative to date, with a budget of $20.4 billion. As it stands, not a penny of those funds will ever be paid to support additional broadband projects in the Empire State.

“Back in 2016, the governor of New York represented to this agency that allocating the full $170 million in Connect America Fund II support to the state broadband program would allow full broadband buildout throughout the Empire State, when combined with the state’s own funding,” said FCC Commissioner Michael O’Rielly.

That $170 million was originally designated for Verizon to spend in upstate and western New York in areas without high-speed broadband. When Verizon declined to accept the funding, the rules for the program required the money to be made available for other qualified projects in other states, or left forfeit, unspent. An appeal from New York’s Senate delegation to FCC Chairman Ajit Pai to award that $170 million to New York’s Broadband for All program was successful, allowing other phone, cable, and wireless providers to construct new rural broadband projects around the state. That decision was met with criticism, especially by the Wireless Industry Service Providers Association (WISPA), which represents the interests of mostly rural, fixed wireless providers around the country.

O’Rielly

“After robust opportunity for public input, last year the FCC adopted a CAF-II framework that was truly technology-neutral and designed to harness the power of competition to deliver the most broadband to the most Americans, at the lowest overall price,” said Steve Coran, counsel for WISPA, in a statement. “Unfortunately, today’s action appears to deviate from this approach by providing disproportionate support to one state at the expense of others, which will now be competing for even less federal support.”

That criticism was partially echoed by Commissioner O’Rielly, who appreciated the dilemma of rural New Yorkers without access to high speed internet, but felt the FCC was showing favoritism to New York, which he worried was getting a disproportionate share of federal funding.

“These are federal [Universal Service Fund] dollars taken from ratepayers nationwide. They are not New York State funds, and we have the burden of deciding how best to allocate these scarce dollars, as well as the right to demand that they be spent wisely,” O’Rielly said. “At the same time, I am concerned that the funding will not be used as efficiently as possible. It should not be lost on everyone that New York is one of the states that diverts 9-1-1 fees collected to other non-related purposes, as is noted in the Commission’s recent report on the subject. We should have received assurances that New York would cease this disgraceful practice.”

O’Rielly added that offering even more generous funding in New York could lead to overpaying providers to service rural New York communities at the expense of other, cheaper rural broadband projects in other states.

Recently O’Rielly claimed that allowing New York to receive funding under the new RDOF program would almost guarantee dollars would be spent on duplicative, overlapping broadband projects, noting that Gov. Cuomo already considers New York almost entirely served by high speed providers. In fact, he claimed any additional funding sent to New York would be “beyond foolish and incredibly wasteful” and would undermine the rural broadband program’s objective to avoid funding projects in areas already served by an existing provider.

In other words, since Gov. Cuomo has claimed that virtually the entire state is now served with high speed internet access, O’Reilly believes there is no reason to award any further money to the state.

Except the claim that ‘nearly the entire state already has broadband access’ is untrue, and O’Rielly’s arguments against sending any additional money to New York seem more political than rational.

The FCC’s broadband availability map shows significant portions of New York in yellow, which designates no provider delivering the FCC’s minimum of 25/3 Mbps broadband service.

First, the FCC’s own flawed broadband availability maps, criticized for over counting the number of Americans with access to broadband, still shows large sections of upstate and western New York unserved by any suitable provider. Parts of western New York between Buffalo and Rochester, significant portions of the Finger Lakes, Southern Tier, and North Country are all still without access. An even larger portion of upstate New York has either no access or very slow access through DSL. The number of residents without service is significant. The FCC uses census blocks to measure broadband availability, but this methodology is flawed because if even one home within that block has broadband while dozens of others do not, the FCC still counts every home as served. This has angered many New Yorkers stuck without service while a local cable or phone company offers high-speed internet access to neighbors just up the road. Many of these rural residents are not even designated to receive satellite service, Broadband for All’s last catchall option for areas where no wired provider bid to provide service.

Second, long-standing rules in broadband funding programs already deny funding to areas where another suitable provider already offers service. So it would be impossible for RDOF to award “wasted” funding to projects where service already exists.

While Gov. Cuomo’s boastful claims about broadband availability opened the door for discriminatory rules against the state, the FCC itself wrote the rules, and it appears the goal was one part payback for securing earlier broadband funding over the objections of Commission O’Reilly, and one part sticking it to a state that has given the Trump Administration plenty of heartburn since the president took office.

Spectrum Telemarketer: “Are You Busy?” Answer “Yes” and You Are Signed Up for Service

Residents in upstate New York are finding Spectrum bills in their mailbox for services they didn’t order and don’t want, after telling Spectrum telemarketers they were too busy to talk.

Three residents in Tupper Lake have been in touch with the village mayor, complaining they were enrolled in a $30-per-month Spectrum streaming TV service without their knowledge or consent.

Mayor Paul Maroun says recent robocalls from the cable operator were responsible for the surprise bills.

“It was a robocall that said, ‘Are you busy at the moment?'” Maroun said. “Once you said ‘yes,’ they record the ‘yes’ and they bill it.”

Maroun said he believes one or more Spectrum telemarketers are ordering new services for consumers using recorded customer responses to a different question as consent to start service. Within a month, bills start arriving in the mailboxes of consumers. Even worse, some consumers do not immediately realize they are being billed for new services they did not authorize because they chose electronic billing and autopay, which automatically pays the bill without customer intervention each month.

The problem was serious enough to be a topic of discussion by the village board, reports the Adirondack Daily Enterprise:

One alleged victim of the call is retired village electric department superintendent Marc Staves, who returned to the village board for a meeting on Wednesday as a civilian to tell the board about his experience and to warn others.

Staves said he caught the additional charge on the first month it landed on his bill. He said he is not sure how it happened because he does not remember taking a call. Staves said Spectrum told him a robocall was placed, but he said his phone records show he never answered it.

“That’s kind of underhanded,” Staves said when he learned how the call works at the village board meeting.

He has automatic payments set up on his account, but still checks the amount.

“It’s always good to keep track of your automatic deductions,” Staves said.

He was told the company would refund his money, but said after a week it still hadn’t. When he called again he said he was told the $30 charge would be taken off his next month’s bill.

“I was okay at that point until I hung up the phone and thought about it,” Staves said. “It’s really no different than me going into your wallet, taking $30 out of your wallet and telling you I’m going to work it off next month.”

He said he is “not satisfied” with the resolution Spectrum offered him, saying it is being done in a “roundabout way.”

Maroun told Staves he has received two other calls from villagers about the same problem, both for $30-per-month charges. He said those people have gotten their money back.

Mayor Maroun

Spectrum spokesperson Lara Pritchard said this was the first time she heard of this complaint and suggested third party scammers might be “spoofing” customers.

“If an offer doesn’t sound right, customers can ask the representative on the phone to validate they are an employee by looking up their account number,” Pritchard wrote in an email. “Spectrum representatives will always have an account number. Then call Spectrum (at their customer service number on your bill) and ask if there is any such person working there.”

But since consumers are being billed for the unauthorized service(s) on their Spectrum bill, the telemarketers must have a business relationship with the cable operator. It could be a third party marketing company hired by Spectrum to sell service. A bonus or commission is likely payable for each successful sale, which could be an incentive for a dishonest employee to game the system.

Stop the Cap! recommends not answering Spectrum’s telemarketing calls or just hang up immediately. Be sure to verify your bill through the My Spectrum app or website and report any unauthorized charges immediately. Consumers can also file complaints with your state Attorney General’s office. Fabien Levy, a spokesman for New York’s Attorney General told the newspaper while the office has received a number of complaints about Spectrum, none were related to this issue. That could change if consumers report these kinds of scams.

Spectrum Salesperson Lies to Customers About the Competition: “We Bought Them”

Phillip Dampier January 21, 2020 Charter Spectrum, Competition, Consumer News, Video No Comments

This Spectrum door-to-door salesperson tells a Bath, N.Y. customer the cable company bought the competition.

A Spectrum door-to-door sales representative has a new trick up his sleeve to win back customers who switched to a competitor: lie and tell them Spectrum bought out the competition and sooner or later customers will once again be dealing with the cable company.

Spectrum Rep: “To get you guys back on board with our service, we’re going to lock your price in for two years.”

A Bath, N.Y., customer of Empire Access, a competing fiber to the home provider offering service in the Southern Tier of New York: “I’m not interested.”

Spectrum Rep: “We just bought Empire, you know, so sooner or later you’re going to be with us.”

Customer: “So you’re going to raise up your rates?”

Spectrum Rep: “No, we’re just going to get everybody switched over, so whenever you’re ready. The official switchover is in March, so sooner or later you’ll be on board with us or you’ll be on satellite for internet. Right now we’re offering you a deal to get on board early.”

The “deal” was $50 a month for 100 Mbps internet, which is hardly a deal at all considering new Spectrum customers in competitive service areas can often sign up for 400 Mbps service for $29.99 a month for two years. More importantly, the salesperson openly lied to make a sale.

Empire Access marketing director Bob VanDelinder says Empire Access did not sell to Spectrum and has no plans to sell itself to anyone.

“Our company is locally owned and operated, and deeply rooted in the communities we serve,” VanDelinder said. “We can keep our customers based on our service, our price. We’re very competitive and play fair. We think that’s extremely important to play fair and keep it a level playing field and be honest to our customers.”

The customer captured most of the conversation on his Ring video doorbell and shared it with Empire Access. At least one other Empire Access customer said he experienced a similar encounter with the deceptive salesperson.

“The content of the video is not accurate and we’re investigating these apparent comments by the sales representative,” responds a Spectrum spokesperson.

Spectrum typically contracts out its door-to-door marketing to third party companies, with employees typically earning a commission or bonus based on each successful sign-up.

Empire Access is requesting customers who have experienced similar misleading claims to contact the company at: 1-800-338-3300.

Spectrum representative lies about the competition.

WENY-TV in Elmira, N.Y. reports on a Spectrum door-to-door salesperson using dirty tricks to try and fool customers to switch back to the cable operator. (2:32)

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