A dispute is emerging in New York between Sprint and T-Mobile and the Communications Workers of America (CWA) and pro-consumer group the Public Utility Law Project (PULP) over the wireless companies’ attempt to argue for their merger deal in a partly secretive filing not open to review by the public.

In a joint letter signed by Richard Brodsky, on behalf of the CWA and Richard Berkley, on behalf of PULP, the two groups argue Sprint’s initial summer filing promoting its merger did not come close to meeting the state’s burden of proof that allowing the two companies to join forces would be good for New York consumers. But even worse, the two wireless companies are now trying to introduce new arguments in favor of their merger, while redacting them from public view and comment.

“The use of the public comment process to recast the Petition, to attempt to repair the fatal defects in the Petition, and to insulate this new information from public comment is fundamentally unfair,” the two men wrote. “This maneuver deprives Parties of the opportunity to respond to the full set of arguments and assertions made by the Joint Applicants; it undermines the usefulness and value of the public comment policies so fundamental to the Commissions’ history and values and the proper conduct of a rulemaking proceeding; it is not contemplated by Commission rules; and it sets a precedent for future misuse of comments to short-circuit full public analysis.”

The companies filed what they called “comments” on Nov. 16. Detailed information about how the merger will impact on New York consumers was left redacted:

Sprint and T-Mobile’s arguments regarding the consumer benefits of its merger for New Yorkers remain a public mystery. The companies redacted this submission to keep the prying eyes of average consumers from reading it.

The CWA and PULP are asking the Commission for an order that:

1) Requires the Joint Applicants to provide unredacted submissions or to withdraw any document relying on redactions; and/or
2) Convenes an evidentiary hearing permitting examination and testimony relating to the Petition and the submission; and/or
3) Grants our previous request for a formal Public Hearing on the Petition and the submission; and/or
4) Removes from the record the Joint Applicants’ November 16 submission from the record; and/or
5) Extends the deadline for Notice and Comment in the October 19 Order to December 15, 2018; and/or such other relief as the Commission may order.

The merger of the two wireless companies requires state and federal approval. Alaska, Colorado, Delaware, Georgia, Louisiana, Maryland, Minnesota, Nevada, Texas, Utah, West Virginia and the District of Columbia have already essentially “rubber-stamped” approval of the merger deal with little comment. Pennsylvania regulators submitted a series of questions that the two companies answered earlier this week.

Sprint and T-Mobile are having a tougher time dealing with regulators in New York and New Jersey, however — the two most likely to either deny approval or impose significant deal conditions in approving the transaction. A review is pending in California, which routinely asks a lot of questions but rarely opposes telecommunications company mergers. Hawaii and Mississippi will also examine the merger in the near future, but neither are expected to oppose it.

New York regulators are likely to consider the impact of the merger on the availability of affordable cellphone plans, the Lifeline program that offers discounted phone service for the poor, and how the transaction will affect rural wireless service in upstate New York.

Nearly every wireless provider in the United States is intentionally slowing down your data service, detrimentally affecting smartphone apps and video streaming.

That is the conclusion of researchers at Northeastern University, University of Massachusetts — Amherst and Stony Brook University, studying the results of more than 100,000 Wehe app users that have run 719,417 tests in 135 countries verifying net neutrality compliance, before and after the open internet rules were repealed in the U.S. earlier this year.

The raw data collected from the app is used as part of a validated, peer-reviewed method of determining which ISPs are throttling their customers’ connections and what services are being targeted.

Nearly Every Mobile Provider Is Throttling Your Speed, Even on “Unlimited” Plans

The researchers concluded that nearly every wireless provider is throttling at least one streaming video service, some reducing speeds the most for customers on budget priced plans while higher value customers are throttled less. No ISP consistently throttled all online video, setting up an unfair playing field for companies that benefit from not being throttled against those that are. Few customers noticed much difference in the performance of streaming video  after the repeal of net neutrality in the U.S., largely because the wireless companies involved — AT&T, Verizon, T-Mobile, Sprint and others — were already quietly throttling video.

“Our data shows that all of the U.S. Cellular ISPs that throttled after June 11th were already throttling prior to this date,” the researchers wrote. “In short, it appears that U.S. Cellular ISPs were ignoring the [former FCC Chairman Thomas] Wheeler FCC rules pertaining to ‘no throttling’ while those rules were still in effect.”

Summary of Detected Throttling

For each ISP, the researchers included tests only where a user’s set of tests indicated differentiation (speed throttling of specific apps or services) for at least one app and did not detect differentiation for at least one other app. This helps to filter out many false positives. As a result, the number of tests in this table is substantially lower than the total number of tests Wehe users ran. The researchers sorted the Cellular ISPs based on the number of tests from users of each ISP. If they did not detect differentiation, researchers used the entry “Not detected.” The researchers claim that offers enough evidence that throttling is not happening. In some cases researchers do not have enough tests to confirm whether there is throttling, indicated by “No data.” 

The table has two column groups for the results: before the new FCC rules took effect on June 11th, and after. If behavior changed from after June 11th, it is highlighted in bold. 

Sprint’s Skype Throttle

The researchers found that video was not the only service impacted by speed throttles. Sprint (and its subsidiary, prepaid provider Boost), for example, is actively throttling Skype.

“This is interesting because Skype’s telephony service directly competes with the telephony service provided by Sprint,” the researchers wrote. But curiously, the throttle almost entirely impacts Android phone users, while iOS devices have less than a 4% chance of being speed throttled. But isolating the exact trigger for throttling remains elusive, the researchers claim.

“While we have strong evidence of Skype throttling from our users’ tests, we could not reproduce this throttling with a data plan that we purchased from Sprint earlier this year,” the researchers admit. “This is likely because it affects only certain subscription plans, but not the one that we purchased.”

When asked to comment, Sprint said: “Sprint does not single out Skype or any individual content provider in this way.” The test results indicate otherwise, suggest the researchers.

T-Mobile’s “Boosting” Throttle Can Mess Up Streaming Video

Some providers, like T-Mobile, attempt to sell their throttled speeds as pro-consumer. In return for reduced definition video, customers are free to watch more online content over their portable devices without it counting against a data cap. But T-Mobile’s video throttle is unique among providers as it initially allows a short burst of regular speed to buffer the first few seconds of a streamed video before quickly throttling video playback speed. Many video players do not expect to see initial robust speeds quickly and severely throttled. Consumers report video playback is often interrupted, sometimes several times, as the player gradually adapts to the low-speed, throttled connection. Consumers receive lower quality video as a consequence.

T-Mobile Plays Favorites

Through extensive testing, research found throttling begins after a certain number of bytes have been transferred, and it is not based strictly on time; below is a list of the detected byte limits for the “boosted” (i.e., unthrottled video streaming) period.

The impact of T-Mobile’s “boosting” speed throttle. Initial speeds of streaming video reach 25 Mbps before being throttled to a consistent 1.5 Mbps.

More concerning to the researchers is their finding that video apps are treated differently by T-Mobile.

“T-Mobile throttles YouTube without giving it a boosting period, while T-Mobile does not throttle Vimeo at all,” the researchers report. “Such behavior highlights the risks of content-based filtering: there is fundamentally no way to treat all video services the same (because not all video services can be identified), and any additional content-specific policies — such as boosting — can lead to unfair advantages for some providers, and poor network performance for others.”

The team of researchers had just one conclusion after reviewing the available data.

“Net neutrality violations are rampant, and have been since we launched Wehe,” the researchers report. “Further, the implementation of such throttling practices creates an unlevel playing field for video streaming providers while also imposing engineering challenges related to efficiently handling a variety of throttling rates and other behavior like boosting. Last, we find that video streaming is not the only type of application affected, as there is evidence of Skype throttling in our data. Taken together, our findings indicate that the openness and fairness properties that led to the Internet’s success are at risk in the U.S.”

The team “strongly encourages” policymakers to rely on fact-based data to make informed decisions about internet regulations, implying that provider-supplied data about net neutrality policies may not reveal the full impact of speed throttles and other traffic favoritism that is common where net neutrality protections do not exist.

Altice USA’s Optimum (formerly Cablevision) and Suddenlink are getting upgraded technology as the two cable companies face increasing demands for speed and broadband usage around the country.

“Over the last two years, the percentage of customers taking over 100 megabits of speed has risen to about 80% of our total customer base,” noted Dexter Goei, CEO of Altice USA. “Recently, we have shifted focus to growing the penetration of 200 Mbps services with about 80% of gross additions now taking these speeds or higher, reaching about half of our total customer base at the end of the third quarter, up from less than 5% two years ago.”

Goei noted that the average of all Optimum and Suddenlink broadband customers’ internet speeds has risen from 56 Mbps to 172 Mbps over the last 24 months, and this is increasing every quarter.

“Average data usage is now over 240 gigabytes per month per customer,” Goei added. “And this continues to grow over 20% per year.”

Goei

To meet growing demand, Altice USA is spending money upgrading its cable properties. The company is scrapping its coaxial cable network in the northeast and in selected parts of Suddenlink territory. In smaller communities that Suddenlink typically serves, the company will either bring fiber to the home service or upgrade the existing cable system to DOCSIS 3.1.

“The first objective is to have 1 Gbps broadband services available virtually everywhere,” Goei said. “For our legacy coax network in the Optimum footprint, we just need to do a Digital Switched Video upgrade now to move us to DOCSIS 3.1 and 1 Gbps speeds, which we can complete over the next few quarters. We just soft launched our fiber network in select areas of Long Island, and it is performing just as we expected so far, delivering a great 1 Gbps symmetrical single-play data service with the new advanced wireless gateway. The smart meshed Wi-Fi we’ve introduced is also doing extremely well.”

Goei says Optimum’s fiber network will be capable of delivering more than 10 Gbps speeds, as well as enhanced Wi-Fi, and improved system reliability.

“For the Suddenlink footprint, we already offer up to 1 Gbps services, so we will add further 1 Gbps capacity through some node splitting and CMTS upgrades,” Goei said. “We are also doing a QAM to IP migration on the cable plant to deliver future IP services. And with the move to DOCSIS 3.1, customers will have a uniform SSID across all of their devices, for an improved seamless Wi-Fi experience.”

The upgrades will mean Suddenlink customers will be more likely to receive 1 Gbps speeds even during peak usage times.

By transitioning video services away from the current QAM platform, IP video will free up additional bandwidth Suddenlink can devote to its internet customers.

Goei told investors on a quarterly results conference call that the five-year fiber upgrade project in the northeast may stretch into a sixth year due to permitting delays in some communities where Optimum provides service.

Some Wall Street analysts questioned Goei about the merits of a costly fiber upgrade, asking if it was necessary. Jonathan Chaplin of New Street Research suggested if cable systems were already capable of gigabit speed service under DOCSIS 3.1, any revenue benefits gained from offering gigabit service could already be realized without stringing fiber optic cable. Other Wall Street analysts wanted to know when Altice would deliver the next revenue-increasing rate hike on Optimum and Suddenlink customers.

The company acknowledged it lost customers after the last round of price increases last spring. Its biggest losses are coming from cord cutting. Altice saw 20,700 Optimum TV customers cancel service between July and September, with a total of 76,000 customers dropping service so far this year. But that won’t stop Altice from raising rates again. Goei anticipated the next rate hike will likely take place during the first half of 2019.

Altice USA is also working on its own cellphone service, which will be powered by its large Wi-Fi hotspot network in the northeast and rely on the services of Sprint to connect customers while away from Wi-Fi. The company did not release pricing or service information.

“You’re giving it away… you are giving it all away!” — An unknown Wall Street analyst tossing and turning in the night.

America is simply not paying enough for wireless service. Thanks to dastardly competition introduced by T-Mobile and Sprint (potentially to be snuffed out in due course if their merger gets approved), wireless pricing is no longer a license to print money. Forced to offer one-size-fits-all affordable $40-50 unlimited plans, the prospects to grow Average Revenue Per User (ARPU) have never been worse because you can’t charge people for more service on an “unlimited plan” without admitting that plan is not exactly “unlimited.”

Wall Street analysts, already upset at the thought of carriers spending more than $100 billion on 5G network upgrades, are in a real tizzy about how companies are going to quickly recoup that investment. No matter that some wireless companies have profit margins in the 50% range and customers have paid providers for a service they were assured would keep up with the times and network demand. If there is to be a 5G revolution in the United States, some insist it must not come at the cost of reliable profits — so the industry must find a way to stick consumers with the bill.

It is not common for industry analysts to go public brainstorming higher prices and more customer gouging. After all, North Americans already pay some of the highest cell phone bills in the world, only mitigated (for now) by scrappy T-Mobile and Sprint. Mark Lowenstein, a leading industry analyst, consultant, and commentator, was willing to go public in the pages of Fierce Wireless, arguing “operators should be considering charging a premium price for what will hopefully be a premium service.” That is likely music to the ears of AT&T and Verizon, both frustrated their pricing power in the market has been reduced by credible competition from a significantly improved T-Mobile.

Lowenstein fears the prospects of a “race-to-the-bottom 5G price war” which could arrive if America’s wireless companies offer a credible home internet replacement that lets consumers tell the local phone or cable company to ‘take a hike.’ Since wireless operators will bundle significant discounts for those who subscribe to both home and mobile plans, telecommunications services may actually cost less than what Wall Street was banking on.

Something must be done. Lowenstein:

In mobile, there’s been premium pricing for premium phones. And Verizon Wireless, for a few years when it had a clear network lead, was sort of able to charge a higher price for its service (but not a premium price). But today, there isn’t really premium pricing for premium services. That should change when 5G really kicks into gear.

So how do you extract more cash from consumers’ wallets? Create artificial tiers that have no relationship to the actual cost of the network, but could potentially get people to willingly pay a lot more for something they will initially get for a simple, flat price:

One simple way would be a flat premium price, similar to the “tiers” of Netflix for a higher number of devices or 4K/Ultra HD.  So, perhaps $10 per line for 5G, or $25 for a family plan. Another approach would be more akin to broadband, where there are pricing tiers for different levels of service performance. So if the base 4G LTE plan is $50 per month today, for an average 100 Mbps service, 5G packages could be sold in gradations of $10 for higher speeds (i.e. $60 for 300 Mbps, $70 for 500, $80 for 1 Gbps, and so on). An interesting angle on this is that some of the higher-end 4G LTE services such as Gigabit LTE (and beyond) could get incorporated into this, so it becomes less of a 4G vs. 5G discussion and more of a tier of service discussion.

I would also like to see some flexibility with regard to how one can purchase 5G capabilities. For example, a user might only need those premium 5G features occasionally, and might only be prepared to pay that higher price when the service is being used. Here, we can borrow from the Wi-Fi model, where operators offer a “day pack” for 5G, or for a certain city, location, or 5G-centic app or experience. 5G is going to be hot-spotty for awhile anyway, so why not use a Wi-Fi type model for pricing?

Even better, now with net neutrality in the ash heap of history, courtesy of the Republican-dominated FCC, providers can extract even more of your money by artificially messing with wireless traffic!

Lowenstein sees a brand new world of “app-centric pricing” where wireless carriers can charge even more to assure a fast lane for those entertainment, gaming, and virtual reality apps of the future, designed to take full advantage of 5G. Early tests have shown millimeter wave 5G networks can deliver extremely low latency traffic to customers from day one. That kills the market for selling premium, low-latency add-ons for demanding apps before companies can even start counting the money. So assuming providers are willing to purposely impede network performance, there just could be a market selling sub-100ms assured latency for an extra fee.

The potential of a Money Party only 5G can deliver is coming, but time is short to get the foundation laid for surprise toll lanes and “premium traffic” enhancements made possible without net neutrality. But first, the wireless industry has to get consumers hooked on 5G at a tantalizingly reasonable price. Charge too much, too soon and consumers may decide 4G LTE is good enough for them. That is why Lowenstein recommends operators not get carried away when 5G first launches.

“We don’t want to be setting ourselves up for a WiMAX-like disappointment,” Lowenstein writes. “The next 12-18 months are largely going to be ‘5G Experimentation’ mode, with limited markets, coverage, and devices. Heck, it’s likely to be two years before there’s a 5G iPhone in the United States, where iOS still commands nearly half the market.”

The disappointment will eventually be all yours, dear readers, if Lowenstein’s recommendations are adopted — when “certain milestones” trigger “rate adjustment” letters some day in the future.

Lowenstein sees four signs to start the pillaging, and we’ve paraphrased them:

• Coverage: Wait until 30-40% of a city is covered with 5G, then jack up the price. As long as customers get something akin to 5G one-third of the time, they’ll moan about why their 5G footprint is so limited, but they will keep paying more for the scraps of coverage they get.
• Markets: Price the service differently in each market depending on how stingy customers are likely to be at different price points. Then hike those prices to a new “nationwide” standard plan when 5G is available in the top 20-30 cities in the country. Since there may not be much competition, customers can take it or leave it.
• Performance: AT&T and Verizon’s gotta gouge, but it’s hard to do it with a straight face if your 5G service is barely faster than 4G LTE. Lowenstein recommends waiting until speeds are reliably north of 100 Mbps, then you can let rip with those diamond-priced plans.
• Devices: It’s hard to extract another $50-100 a month from family plan accounts if there are an inadequate number of devices that support 5G. While your kids “languish” with 4G LTE smartphones and dad enjoys his 5G experience, mom may shut it all down when the bill comes. Wait until everyone in the family can get a 5G phone before delivering some good old-fashioned bill shock, just like companies did in the golden days of uncompetitive wireless.

These ideas can only be adopted if a lack of competition assures all players nobody is going to call them out for pickpocketing customers. Ajit Pai’s FCC won’t interfere, and is even subsidizing some of the operators’ costs with taxpayer dollars and slanted deregulation to let companies construct next generation 5G networks as cheaply as possible (claiming it is important to beat China, where 5G service will cost much less). Should actual competition remain in the wireless market, all the dreams of rate-hikes-because-we-can will never come true, as long as one carrier decides they can grow their business by charging reasonable prices at their competitors’ expense.

“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.”