An attorney for Charter Communications revealed that company officials and New York telecom regulators were engaged in a “productive dialogue” over how to resolve the state’s dispute with the cable operator.

In written requests to extend the deadlines for a rehearing of the decision to revoke Charter’s merger with Time Warner Cable and file an “exit plan” to leave New York State, Helmer revealed the two sides were engaged in substantial talks to resolve their differences.

“Good cause exists to further extend the deadlines [….],” wrote Maureen O. Helmer, counsel for Charter Communications. “Charter and the Department [of Public Service] have been involved over the past few weeks in productive dialogue regarding the July Orders as well as the related special proceeding initiated by the Commission in the Supreme Court.”

Helmer added that Charter has been “assembling additional information” about its criticized rural broadband expansion program for review by the Public Service Commission, which decided in late July to evict Charter/Spectrum from New York for consistently failing to meet its merger obligations with the state.

Charter’s lawyer suggests it is in the Commission’s best interest to accept additional delays in the deadlines to file a rehearing appeal of the July eviction order (requesting an extension until Oct. 10, 2018) and to file an orderly exit plan (requesting an extension until Nov. 8, 2018).

“A further extension would allow additional time for discussions between Charter and the Department before the initiation by Charter of additional Commission or court proceedings. Additional proceedings before the Commission and/or the courts would have the potential to divert the resources of both Charter and the Department from discussions regarding both orders, and could have the effect of making it more difficult to resolve the issues raised by the orders without litigation,” Helmer wrote.

There is an increasing likelihood the Public Service Commission’s July order effectively throwing Charter Communications out of New York State was actually a hardball, last-ditch negotiating tactic, potentially to extract additional conditions and more rigid compliance with the orders of the Public Service Commission.

Charter officials originally claimed the July eviction order was an example of election year politics by the governor and a striking union. New York Gov. Andrew Cuomo, who has repeatedly slammed Charter/Spectrum for its performance in New York, is running for re-election. The International Brotherhood of Electrical Workers (IBEW) also continues to strike Charter in the New York City area, attracting support from local politicians.

A Commission that is amenable to Charter’s request for a second delay in meeting its deadlines to file paperwork would send a clear signal the PSC is no longer intent on throwing the cable operator out of the state.

The PSC’s July order rescinding the approval of Charter’s acquisition of Time Warner Cable was based ironically, in part, on Charter’s frequent failure to meet the state’s deadlines.

Morrow

Australia is learning a costly lesson finding ways to extend broadband service to rural areas in the country, choosing fixed wireless and satellite networks that will ultimately cost more than extending fiber optic broadband to rural customers.

Australia’s National Broadband Network (NBN) is tasked with supplying virtually all of Australia with internet access, using fiber/wired broadband in urban and suburban areas and fixed wireless and satellite internet access in the country’s most remote locations.

But just a few years after debuting satellite broadband and fixed LTE 4G wireless service in many parts of the country, demand has quickly begun to overwhelm capacity, forcing costly upgrades and punitive measures against so-called “heavy superusers.” The NBN has also scrapped plans to introduce higher-speed fixed wireless services, fearing it will only create additional demands on a network that was not envisioned to manage heavy broadband usage from video streaming.

NBN CEO Bill Morrow has elected to place most of the blame on his customers, specifically “superusers” that he characterized as “online gamers” who spend hours during the day and peak usage periods consuming large parts of the fixed wireless network’s available capacity.

“In the fixed wireless, there’s a large portion [of end users] that are using terabytes of data,” Morrow said. “We’re evaluating a form of fair use policy to say, ‘We would groom these extreme users.’ Now the grooming could be that, during the busy period of the day when these heavy users are impacting the majority, that they actually get throttled back to where they’re taking down what everybody else is taking down.”

Under the current NBN fair use policy, monthly downloads per household are capped at 400 GB, with maximum usage during peak usage periods limited to 150 GB a month, which is already significantly less than what most average American households consume each month. With expensive and unexpected early upgrades to more than 3,100 cell towers to manage rapidly growing usage, the cost of service is starting to rise substantially, even as usage limits and speed reductions make these networks less useful for consumers.

In areas where the NBN extends a fiber optic network, the fixed wholesale price for a 50/20 Mbps connection is $32.00 (U.S.) per month. (A 100/40 Mbps connection costs $46.25). For fixed wireless, prices are rising. A 50/20 Mbps fixed wireless connection (with usage cap) will now cost $46.25 a month.

Morrow took heat from members of Parliament over his claim that online gamers were chiefly responsible for slowing down the NBN’s fixed wireless network.

“With great respect to everything you said over the last 15 minutes, you have been saying to us the problem here is gamers,” said MP Stephen Jones (Whitlam).

Morrow clarified that online gamers were not the principal cause of congestion. The main issue is concurrency, which drags down network speeds when multiple family members unexpectedly use an internet connection at the same time. The worst congestion results when several family members launch internet video streams at the same time. Online video not only leads average users’ traffic, it can also quickly outstrip available cell tower capacity. High quality video streaming can quickly impact 4G LTE service during peak usage periods, driving speeds down for all users. The NBN now considers these newly revealed capacity constraints a limit on the feasibility of using wireless technology like LTE to supply internet access.

The current mitigation strategy includes limiting video bandwidth, discouraging video streaming with usage caps or speed throttles, capacity upgrades at cell towers, and public education requesting responsible usage during peak usage times. With capacity issues becoming more serious, Morrow canceled plans to upgrade fixed wireless to 100 Mbps speeds because of costs. The proposed upgrades would have cost “exponentially” more than wired internet access.

Hype vs. Reality: Most Australians reject fixed wireless and satellite internet as woefully inadequate. (Source: BIRRR)

Actual Fixed Wireless speeds

Actual Satellite Internet speeds

The concept of supplying fixed wireless or satellite internet access to rural areas may have made sense a decade ago, but there are growing questions about the suitability of this technology based on growth in consumer usage patterns, which increasingly includes streaming video. The cost to provide a sufficiently robust wireless network could easily rival or even outpace the costs of extending traditional fiber optic wired service to many rural properties currently considered cost prohibitive to serve. In Australia, fixed wireless and satellite has delivered sub-standard access for rural consumers, and requires the imposition of “fair usage” caps and speed throttles that inconvenience customers. For now, Morrow believes that is still the best solution, given that Australia’s national broadband plan relies heavily on wireless access in rural communities.

“[The benefit of a fair usage policy is] big enough to where if we did groom them during the busy time of the day, it would be a substantial [speed] lift for people,” he said. “I don’t think there’s a silver bullet in any of this – this is going to require us to think through a number of different areas.”

Better Internet for Rural, Regional and Rural Australia (a volunteer consumer group) shares horror stories about relying on satellite to solve rural broadband problems. (7:50)

The U.S. Department of Agriculture is trumpeting the availability of hundreds of millions of taxpayer dollars to fund rural broadband programs around the country, but only in the most rural communities where an existing monopoly provider won’t be harmed.

“USDA has been investing in rural telecommunications infrastructure for decades, and our current programs offer more than $700 million per year for modern broadband e-Connectivity in rural communities,” the USDA writes on its new Broadband website. “In the coming months, USDA will almost double these longstanding programs with at least $600 million of additional funds for expanding rural broadband infrastructure in unserved rural areas and tribal lands.”

The funds will target unserved areas through a “pilot program” that goes to great lengths to keep funds away from underserved areas where an existing phone company offering slow speed DSL might suddenly face unwanted competition.

The Trump Administration’s budget language requires that funds be only spent in rural areas with a population of less than 20,000 residents, and only where there is insufficient access to broadband service with speeds of at least 10/1 Mbps — a drop from the FCC’s 25/3 Mbps standard. That lower speed threshold is widely seen as protecting incumbent phone companies and will keep broadband funds out of communities where DSL service predominates. The USDA will also notify all service providers in the general area about any application for funds, providing ample opportunity to object if a provider(s) report it already offers service to at least some of its customers at speeds of 10/1 Mbps or more.

If a dispute arises about service availability, the USDA will consult broadband availability maps that Sen. Jon Tester (D-Mont.) said “stink” or send USDA employees to the community to conduct an investigation.

For the moment, the USDA is asking rural Americans to share their stories about their broadband experiences:

To best bridge the e-Connectivity gap in rural America, USDA wants to hear the thoughts and needs of those individuals living and doing business in rural communities. Only through your participation can this program succeed in making rural America great again, so please share your user and service provider feedback, insights and ideas, on the many factors we’re considering, including:

• How affordable and reliable should rural broadband service be?

• What time-of-day (morning, afternoon or evening) do rural residents and businesses most need to use high-speed internet?

• How fast of internet connectivity is needed for business management, e-commerce, farming, ranching, education, and medical/healthcare purposes in rural areas, especially for large data transfers and real-time communications?

Share your feedback with the USDA.

“Devastating.”

“Too big to fix.”

“A bad, recurring dream.”

“An oligopoly.”

“A meritless merger.”

These were some of the comments from objectors to T-Mobile and Sprint’s desire to merge the two wireless carriers into one.

Consumer and industry groups filed comments largely opposed to the merger on the grounds it would be anti-competitive and lead to dramatic price increases for U.S. consumers facing a consolidated market of just three national wireless carriers.

Free Press submitted more than 6,000 signatures from a consumer petition opposed to the merger.

“This is like a bad recurring dream,” one of the comments said, reflecting on AT&T’s attempt to acquire T-Mobile in 2011.

The comments reflected consumer views that mergers in the telecom industry reduce choice and raise prices.

The American Antitrust Institute rang alarm bells over the merger proposal it said was definitively against the public interest and probably illegal under antitrust laws. It declared two competitive harms: it creates a “tight oligopoly of the Big 3 and [raises] the risk of anticompetitive coordination” and it “eliminates head-to-head competition between Sprint and T-Mobile.”

The group found the alleged merger benefits offered by the two companies unconvincing.

“The claim that two wireless companies need a merger to expand or upgrade their networks to the next generation of technology is well worn and meritless. The argument did not hold any water when AT&T-T-Mobile advanced it in 2011 and the same is true here,” the group wrote. “The FCC should reject it, particularly in light of the merger’s presumptive illegality and almost certain anticompetitive and anti-consumer effects. Both AT&T and T-Mobile expanded their networks in the wake of their abandoned merger. And T-Mobile became a vigorous challenger to its larger rivals. Sprint-T-Mobile’s investor presentation notes, for example ‘T-Mobile deployed nationwide LTE twice as fast as Verizon and three times as fast as AT&T.’”

“The Sprint-T-Mobile merger is one of those mergers that is ‘too big to fix,’” the group added. “Like the abandoned AT&T-T-Mobile proposal, it is a 4-3 merger. It combines the third and fourth significant competitors in the market, creating a national market share for Sprint-T-Mobile of about 32%. Next in the lineup is AT&T, with a share of about 32%. Verizon follows with a share of about 35%. These three carriers would make up the vast majority (almost 99%) of the national U.S. wireless market with smaller MVNOs accounting for the remaining one percent. These carriers include TracPhone, Republic Wireless, and Jolt Mobile, Boost Mobile, and Cricket Wireless, which purchase access to wireless infrastructure such as cell towers and spectrum at wholesale from the large players and resell at retail to wireless subscribers.”

A filing from the groups Common Cause, Consumers Union, New America’s Open Technology Institute, Public Knowledge and Writers Guild of America West essentially agreed with the American Antitrust Institute’s findings, noting removing two market disruptive competitors by combining them into one would hurt novel wireless plans that are unlikely to be introduced by companies going forward.

Rivals, especially AT&T and Verizon, have remained silent about the merger. That is not surprising, considering T-Mobile and Sprint have forced the two larger providers to match innovative service plans, bring back unlimited data, and reduce prices. A combined T-Mobile and Sprint would likely reduce competitive pressure and allow T-Mobile to comfortably charge nearly identical prices that AT&T and Verizon charge their customers.

Smaller competitors are concerned. Rural areas have been largely ignored by T-Mobile, and Sprint’s modestly better rural coverage has resulted in affordable roaming arrangements with independent wireless companies. Sprint has favored reciprocal roaming agreements, allowing customers of independent carriers to roam on Sprint’s network and Sprint customers to roam on rural wireless networks. T-Mobile only permits rural customers to roam on its networks, while T-Mobile customers are locked out, to keep roaming costs low. Groups like NTCA and the Rural Wireless Association shared concerns that the merger could leave rural customers at a major disadvantage.

Many Wall Street analysts that witnessed the AT&T/T-Mobile merger flop are skeptical that regulators will allow the Sprint and T-Mobile merger to proceed. The risk of further consolidating the wireless industry, particularly after seeing T-Mobile’s newly aggressive competitive stance after the AT&T merger was declared dead, seems to prove opponents’ contentions that only competition will keep prices reasonable. Removing one of the two fiercest competitors in the wireless market could be a tragic mistake that would impact prices for a decade or more.

The American Antitrust Institute reminded regulators:

In 2002, there were seven national wireless carriers in the U.S.: AT&T, Verizon, Sprint, T-Mobile, Nextel, AllTel, and Cingular. In a consolidation spree that began in 2004, Cingular acquired AT&T. This was followed by Sprint’s acquisition of Nextel in 2005—a merger that has been called one of the “worst acquisitions ever.” At the time of the merger, Sprint and Nextel operated parallel networks using different technologies and maintained separate branding after the deal was consummated. The company lost millions of subscribers and revenue in subsequent years in the wake of this costly and confused strategy.

In 2009, Verizon bought All-Tel. This was followed by AT&T’s unsuccessful attempt to buy T-Mobile in 2011 and T-Mobile’s successful acquisition of mobile virtual network operator (MVNO) Metro PCS. The DOJ and the FCC forced the abandonment of the AT&T-T-Mobile deal. Like Sprint-T-Mobile, it was also a 4-3 merger that would have eliminated T-Mobile, a smaller, efficient, and innovative player that set the industry bar high for the remaining rivals.

AT&T’s rationale that the merger with T-Mobile was essential for expanding to the then-impending 4G LTE network technology also did not pass muster. In August of 2014, two years after the abandoned attempt, Forbes magazine concluded that there would have been “no wireless wars without the blocked AT&T-T-Mobile merger.”

Telecom companies in four states will receive almost 50% of the $1.488 billion the FCC has set aside in support to expand rural broadband service in unserved areas of 45 states.

Missouri ($254,773,117.90), California ($149,026,913.20), Oklahoma ($113,599,113.70), and Virginia ($108,923,612.60) were the only states to win more than $100 million each to expand internet access to a total of 257.436 residents, and many of the award winners are planning to offer fixed wireless service.

The FCC claims 713,176 homes and businesses will get internet service over the next six years from 103 different providers as a result of the auction, with half getting the option of 100 Mbps. An additional 19% will have gigabit service available. All but 0.25% will have at least 25 Mbps service available, meeting the FCC’s current broadband definition. Many of the providers will charge substantially for faster speed service, however. Some wireless ISPs offering fixed wireless service currently charge up to $999.95 a month for 100/100 Mbps service.

“The successful conclusion of this first-of-its kind auction is great news for the residents of these rural communities, who will finally be able to share in the 21st-century digital opportunities that broadband provides,” said FCC Chairman Ajit Pai. “By tapping the mechanisms of the marketplace, the Phase II auction served as the most appropriate and cost effective way to allocate funding for broadband in these unserved communities, bringing the highest-quality broadband services to the most consumers at the lowest cost to the ratepayer.”

The winners are a mix of phone, cable, satellite, and fixed wireless companies and several rural utility co-ops. The biggest recipient is Wisper ISP, a Mascoutah, Ill. company awarded over $220 million to expand its fixed wireless service in Arkansas, Illinois, Indiana, Kansas, Missouri and Oklahoma. Other significant auction winners include California’s Cal.net, a fixed wireless provider serving rural areas east of Sacramento as far as South Lake Tahoe and Commnet Wireless, LLC which provides cell service and fixed wireless in rural Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming.

Providers must build out to 40 percent of the assigned homes and businesses in a state within three years and increase by 20 percent in each subsequent year, until complete buildout is reached at the end of the sixth year.

The Connect America Fund Phase II auction is part of a broader effort by the FCC to close the digital divide in rural America. In addition to the funding that will provided by this auction, the Commission is working toward the launch of a $4.53 billion Mobility Fund Phase II auction to expand 4G LTE wireless coverage throughout rural America. And the Connect America Fund is in the midst of providing over $9 billion over a six-year period for rural broadband in areas served by large carriers.

For more information:

Files

• FCC Public Notice
• FCC News Release
• Attachment A: Winning Bidder Summary
• Attachment B: State Results Summary