While net neutrality in the United States has been neutered by the Republican-controlled FCC, the concept of an online level playing field is alive and well in Germany, and T-Mobile’s parent company Deutsche Telekom (DT) just got called out for a foul ball.

The German telecom giant has lost its legal battle with Germany’s telecom regulator, the Federal Network Agency (Regulator Bundesnetzagentur) over StreamOn, its all-you-can-stream mobile video product that does not count against customer usage allowances. The company introduced the unlimited video streaming service in Germany in 2017, emulating a similar service available in the United States that offers zero rated mobile video content at a reduced video resolution. An appeals court in Münster this week ruled that the German regulator was correct to forbid DT from continuing to offer StreamOn to customers in its present form for two reasons:

• StreamOn was only available to T-Mobile customers inside Germany or those who visited the country, violating Europe’s “roam like at home” rules that require carriers to not restrict or charge more for mobile services or features when traveling between member states of the European Union.
• StreamOn violates German net neutrality rules by delivering only T-Mobile approved, speed-throttled, low resolution video content that won’t count against a customer’s usage cap.

“StreamOn must conform to the ‘roam like at home’ principle and customers must have video streaming available in an unthrottled bandwidth,” said Federal Network Agency president Jochen Homann. “The rule of equal treatment is a cornerstone of European net neutrality regulations. The principle of equal treatment has made the internet a driver of innovation, and the diversity of applications and services benefits all consumers.”

Hohmann

DT immediately contested the regulator’s decision and sued. The case has been drifting through German courts since December 2017, with the most recent ruling in favor of the regulator issued by an appeals court, which declared its ruling to be final.

DT has claimed it finds the regulator’s objections “very puzzling indeed,” claiming StreamOn has been wildly popular in the United States and Germany. Two years ago, it warned that if the courts upheld the regulator’s ruling, it would force the company to stop offering it.

“The Bonn-based regulatory authority is ordering us to also offer StreamOn in other EU countries. It bases this order on the EU Roaming Regulation,” DT said in a statement in 2017. “Fulfilling the order would mean the end of our free service, because we would not be able to offer it cost-effectively in other countries.”

Despite its threat to shutter StreamOn in Germany, the company claimed this week it would continue offering the service for the time being, without increasing prices.

“We are delighted that the court has confirmed our interpretation of the law,” a Federal Network Agency spokesman said after the decision was announced. “We will take quick action to ensure that Telekom adjusts its product accordingly.”

“We expect the [Federal Network Agency] to allow an appropriate amount of time to make the necessary adjustments,” a DT spokesman said. “We are convinced that StreamOn is a legal product and will explore all our legal options.”

Charter Spectrum serves a significant part of the state of Maine.

The Maine state government is reviewing a measure that would require all cable operators in the state to offer customers the chance to buy individual cable channels instead of being forced into a large and costly package of dozens, if not hundreds of unwanted TV channels.

“The senior citizens in my area want to watch the Boston Red Sox,” says Rep. Jeffrey Evangelos, an independent from Friendship. “The package that Spectrum is offering in Maine that includes the Red Sox costs about a hundred bucks. These people are making $800 bucks a month on Social Security. They’re bemoaning to me at the doors, you know, ‘I can’t afford television anymore Jeff.’ And they grew up in an era when television was free.”

Maine Public Radio reports Evangelos’ solution is an insertion of a single sentence into the state franchising law:

A cable system operator shall offer subscribers the option of purchasing access to cable channels, or programs on cable channels, individually.

The proposed change won support from a state legislative committee, but scorn from cable industry lobbyists that claim the proposed measure violates federal law.

Chris Hodgdon, a Comcast lobbyist, pointed to the specific statute forbidding states from telling cable operators how to conduct business: “No state shall regulate the products, rates, services of a cable provider.”

Charter Spectrum’s regional lobbyist Melinda Kinney warned any such law would likely face immediate court challenges. Kinney complained the measure was unfair because it targets cable operators while excluding satellite and streaming providers. But consumer advocates argue that the law could actually help the cable industry as cord-cutting becomes a national phenomenon. Subscribers agree.

“I’d sign back up for cable TV in a minute if I could pick my own channels and pay a reasonable price,” said Jack Winters, 71, a former Comcast customer near Brunswick. “Comcast makes you take all or nothing so I took nothing. I miss not getting Fox News Channel, Turner Classic Movies, and Hallmark, but my bank account doesn’t.”

Sen. Angus King, the independent senator from Maine, has done his part to investigate whether such a state law would violate federal deregulation measures. He took the proposal to the FCC.

Patrick Webre, chief of the FCC’s Consumer and Governmental Affairs Bureau responded that no state has passed such a law before, so he couldn’t say much:

“In your letter you asked whether a state mandate that a cable operator provide a-la-carte services would be pre-empted by federal law. This poses a question of first impression, and we could not locate any specific Commission rules that addresses your exact issue. Thus we are not in a position to express an opinion on the question you raise.”

Under the Trump Administration, however, the Republican majority controlling the FCC would likely oppose the measure because it would introduce new regulations on the industry, something that has historically been anathema to Chairman Ajit Pai and Commissioner Michael O’Rielly. Republican Commissioner Brendan Carr, formerly a lawyer for Wiley Rein, which represents the interests of several large telecom companies, would likely also oppose the measure.

The bill now moves to the full Legislature on a tri-partisan vote of 8-2 and will be debated first in the House.

A proposed new law would require cable operators in Maine to sell individual cable channels to customers. (4:08)

Pai

FCC Chairman Ajit Pai found a lot to like about the proposed merger of T-Mobile and Sprint and has recommended his fellow commissioners approve the transaction after the companies offered new commitments to ease anti-competitive and anti-trust concerns.

That typically means the FCC’s 3-2 Republican majority will quickly approve the deal in a forthcoming vote, with three Republicans in favor and two Democrats opposed, if tradition holds.

Pai’s support for the merger is hardly surprising. Since joining the FCC as a commissioner in the second half of the Obama Administration, Pai has consistently opposed every pro-consumer item on the FCC’s docket. He loves industry-consolidating mergers, hates telecom companies being forced to open their businesses to competition on things like set-top boxes, and considers almost all pro-consumer protection policies from net neutrality to merger deal conditions examples of “overregulation” that he argues are harmful to the free market and investment.

The troubled merger, which would create what we will call T-Sprint, has remained under review for months, recently stalled over revelations the two companies tailored the transaction to appeal to President Trump. T-Mobile executives spent $195,000 repeatedly renting rooms at the Trump International Hotel in Washington and spent large sums hiring Trump-connected “advisors” including Reince Priebus and Corey Lewandowski. The merger pitch was changed to emphasize its impact on rapidly growing 5G networks, a talking point favorite of President Trump, who wants to beat the Chinese over the development of next generation wireless networks.

The merger must win approval from both the FCC and the Justice Department. The latter is said to be troubled about the anti-competitive impact of reducing the number of national wireless carriers from four to three. Such a consolidation would likely permanently change the wireless competition paradigm, because there has been no interest among new entrants to construct multi-billion dollar national cellular networks to compete with established wireless companies.

On Monday, T-Mobile and Sprint delivered additional concessions which seem to have won the approval of Mr. Pai.

“Two of the FCC’s top priorities are closing the digital divide in rural America and advancing United States leadership in 5G, the next generation of wireless connectivity,” Pai said in a statement Monday. “The commitments made today by T-Mobile and Sprint would substantially advance each of these critical objectives.”

But a closer examination of “T-Sprint’s concessions” shows there is remarkably little there to protect competition and consumers:

• A proposed spin off of prepaid Boost Mobile, which relies on the weaker Sprint network, is hardly much of a concession considering it will likely be impacted by the decommissioning of Sprint’s network, requiring at least some customers to buy new equipment that works on T-Mobile’s network. T-Sprint would also continue to control Boost competitors Virgin Mobile and MetroPCS, putting Boost at a distinct disadvantage.
• The “nationwide” 5G network promised by T-Sprint is replete with fine print. The company will not be formally assessed on its expansion progress for three years, has demanded that T-Mobile’s own employees be allowed to conduct network performance tests — a conflict of interest, and that if it fails to meet its own proposed metrics, the FCC must forego the use of its regulatory forfeiture powers. Instead, the company agrees to pay “voluntary” fines if it fails coverage expansion commitments that are open to wide interpretation and litigation.
• T-Sprint agreed to expand its “5G” coverage, but will rely heavily on existing macro cell towers and low and mid-band spectrum, shared by a much larger number of users than millimeter wave/small cell technology. That will probably deliver a more modest, incremental upgrade over existing 4G LTE technology, not a game-changer that can deliver gigabit speeds to wireless customers. Nothing precludes AT&T and Verizon from deploying similar upgrades without a competition-crushing merger between the third and fourth largest competitors.
• T-Sprint’s proposed wireless home broadband replacement does not include a commitment to provide unlimited service. In fact, vague language in the commitment letter suggests T-Sprint will offer the service with a performance and usage expectation akin to other fixed wireless networks. That likely means customers will endure a data cap and speeds that are not comparable to wired technology. Once the company has signed up 9.5 million home broadband customers, any commitments offered to regulators about that service automatically expire.
• The FCC is expected to give up much of its regulatory authority in return for T-Sprint’s commitments. If T-Sprint walks away from its commitments and not invest billions on its network expansion, it can pay a much smaller fine and have its merger obligations disappear. The FCC will not be able to use its more effective compliance power: forfeiture penalties.

T-Sprint’s argument is that this transaction will accelerate the deployment of 5G technology in a war for 5G supremacy with China. But exactly what technology is deployed, on what spectrum, using small cells or macro cell towers, makes a lot of difference. China’s wireless companies are owned and controlled by the Chinese government, which is also underwriting some of the costs. America’s networks are financed with private capital (and customer bills). T-Sprint’s 5G plans are also far less ambitious than those from AT&T and Verizon, and the cost to long-term competition is too high. The FCC should know that.

Congress has noticed that this merger has been rejected before during the Obama Administration for being anti competitive. Nothing has changed with respect to that. But T-Mobile’s lobbying sure has — this time trying to appeal to the Trump Administration for approval. Pai is certainly on board, and that could cost American consumers plenty.

Most telling of all is Wall Street’s reaction to today’s news. A merger that is being sold as as an AT&T/Verizon killer appears to be anything but. Verizon stock rose by 4.2% and AT&T by 4%. Investors recognize that consolidation can mean only one thing: higher prices. It means the end of the wireless price war that had Sprint and T-Mobile taking potshots at their larger rivals, forcing them to cut prices and bring back unlimited data plans.

It would be ruinous for T-Sprint to continue slashing prices and taunting AT&T and Verizon with costly promotions and giveaways. AT&T and Verizon expect T-Sprint will join their comfortable cartel with suspiciously similar plans and pricing, while firing up to 30,000 redundant workers and decommissioning Sprint’s wireless network. That last fact is well known on Wall Street, too. Cellphone tower owners took a beating in the stock market on the news they could lose Sprint as a customer. American Tower was down 1.9%, Crown Castle fell 3.2% and SBA Communications Corp. dropped as much as 4.5%.

The deal still must pass muster with the Justice Department, and attorneys general from multiple U.S. states are also opposing the deal on the state level. But the Republican members of the FCC joining up to support the deal make it more likely that it will eventually get approved.

Verizon’s FiOS expansion is still, still, still, still, and still dead.

Despite the passage of favorable legislation deregulating the state’s largest telecom companies, Verizon has thumbed its nose at New Jersey’s efforts to convince the company to expand its fiber-to-the-home service.

“Verizon does not plan to expand its FiOS service footprint,” wrote Tanya Davis, a Verizon franchise service manager for FiOS in New Jersey and New York. “The company remains focused on continuing to meet its franchise obligations, and delivering competitive services, and enhanced consumer choices, where the services are available.”

More than a decade after passing the 2006 Cable TV Act in New Jersey, designed to convince telecom companies to compete more vigorously with each other, Verizon remains uninterested in further expanding its fiber network in New Jersey and beyond.

After successfully lobbying the state to adopt a statewide cable TV franchise policy, making life easier for Verizon by not requiring the company to negotiate a contract with each town serviced, Verizon suddenly stopped caring after announcing a pullback in further FiOS expansion in 2010. The change in heart appears to have started at the top. Then CEO Ivan Seidenberg, who approved FiOS, retired and was replaced by Lowell McAdam, who preferred Verizon invest mostly in its wireless networks.

Vergano

As a result, New Jersey has a telecom industry-friendly deregulatory policy in place with nothing to show for it.

“People want to see competition,” Wayne Mayor Christopher Vergano told the North Jersey Record, citing complaints his office has received about Altice USA’s Optimum service. “Over the years, they’ve seen their cable bills increase. We’re trying to give residents options.”

Wayne’s Township Council passed a resolution asking state lawmakers to review the 2006 Cable TV Act to find a way to coerce Verizon to do more fiber upgrades in the state. In 2006, then Gov. John Corzine got Verizon to commit to wiring 70 towns across New Jersey, and Wayne was not one of them.

Verizon agreed to expand its fiber network to all county seats, as well as areas with a population density in excess of 7,111 residents per square mile.

New Jersey’s Board of Public Utilities (BPU) is still allowed to report on Verizon’s progress, but little else, thanks to deregulation. A BPU report stated deployment of FiOS slowed to a crawl between 2010-2013, when only three new towns were reached with fiber upgrades. What little interest Verizon still had in FiOS expansion ended after 2012’s Superstorm Sandy, after which Verizon ended expansion in urban areas of New Jersey as well.

“It’s solely Verizon’s discretion to add municipalities to its system-wide franchise,” a BPU spokesman told the newspaper.

Prior to deregulation, utility boards and regulators could compel companies to offer service instead of shrugging their shoulders and telling state lawmakers ‘it’s all up to Verizon.’

The House on Wednesday approved a bill on a 232 to 190 vote along party lines to restore net neutrality protections first adopted in 2015, but repealed in 2018 by the Republican majority serving the Trump Administration’s Federal Communications Commission under the leadership of Chairman Ajit Pai.

All 231 voting Democrats voted in favor of the net neutrality measure while all but one Republican (Rep. Bill Posey of Florida) opposed it.

While the measure would never have passed a Republican-controlled House of Representatives, Democrats still face an uphill battle to get the measure through the Republican-controlled Senate and on to the White House.

Senate Republican Leader Mitch McConnell said Tuesday the bill would be “dead on arrival” in the Senate, and McConnell was unlikely to even consent to bring the bill to the floor for a debate and vote. Separately, aides to the president strongly urged him to veto the measure should it ever reach his desk for a signature.

Republicans have defended the nation’s largest internet service providers and policies which have largely deregulated their business practices and rates, claiming it has stimulated investment and expansion by ISPs willing to spend money in a favorable business climate. Critics contend spending policies at the nation’s largest providers are based on business priorities, not government policy on internet openness.

Pai

Minutes after the House vote ended, Pai attacked the results: “This legislation is a big-government solution in search of a problem. The internet is free and open, while faster broadband is being deployed across America. This bill should not and will not become law.”

Under the current rules, ISPs are allowed to block, throttle, or charge extra for content accessed over their broadband pipes, as long as a company informs its customers it is doing so. Democrats like Mike Doyle of Pennsylvania, one of the chief proponents for net neutrality restoration, compared the FCC’s repeal with firing a police force in a high crime area.

“Today, nobody is enforcing any rules. There’s no cop on the beat,” Doyle said. “You need a cop on the beat. These rules wouldn’t have been put into place if there was never this kind of behavior on the part of ISPs. We didn’t just dream all this up.”

Rep. Doyle

Three years into the Trump Administration, Doyle complains, the FCC has still done little to protect consumers from abusive ISPs.

“They’ve done nothing, nada, zip, crickets. They did nothing,” Doyle said. “It’s the wild, wild west. Let the ISPs do anything they want and consumers be damned.”

Republican FCC Commissioner Brendan Carr disagrees.

“The U.S. has turned the page on the failed broadband policies of the Obama Administration,” Carr said in a statement criticizing the net neutrality measure as threatening to turn back the clock on the telecom industry’s progress.

Many Republicans claimed they supported measures that would prohibit ISPs from interfering with content, but were opposed to Democrats tying regulatory authority to redefining ISPs as telecommunications providers. Republicans claim that could lead to a government power grab by officials seeking rate controls and service quality regulations. Some Republicans also claim the measure would expose the internet to new taxes.

Democrats are now lobbying to get Senate Leader McConnell to schedule a Senate vote for the measure.

The House just voted to restore #NetNeutrality! Now the ball is in @SenateMajLdr’s hands. @SenateGOP: stop doing the bidding of massive broadband corporations, listen to the American people, and bring the Save The Internet Act to the floor for a vote. #SaveTheNet

— Ed Markey (@SenMarkey) April 10, 2019