Early indications that FCC not enforcing Title II Internet universal service, anti-redlining provisions

--FCC accepts AT&T assertion of Title II compliance on its face

--Consumer complaint against Comcast closed despite demand for $535,000 to establish Internet service

 

Earlier this year, the U.S. Federal Communications Commission deemed Internet service a common carrier utility under Title II of the Communications Act and thus subject to the law’s universal service and non-discrimination obligations. New FCC rules implementing the policy became final on June 12, 2015 and withstood judicial petitions by large telephone and cable companies and their trade associations to block them from taking effect.

Going forward, it remains to be seen whether the FCC will enforce Title II universal service and anti-redlining requirements against the large, dominant telephone and cable companies that provide much of the nation’s premise landline Internet service in tightly proscribed “footprints” within their service areas. Early indications are that the FCC is opting to not enforce these requirements even though it specifically declined to forbear their enforcement in its March 12, 2015 Open Internet Order and Rulemaking, finding that doing so would not be in the public interest. Harold Feld of Public Knowledge termed universal service “the quintessential common-carrier obligation.”

Nevertheless, it appears the FCC rather than enforcing key Title II obligations is choosing to merely pass complaints of violations on to providers and then summarily closing them out once the provider communicates with the complainant. I offer my own experience as evidence.

On June 15, 2015, I attempted to place an online order for Internet service for my home office premise in Northern California and received this screen:

I also obtained the following communication from an AT&T agent in a June 15, 2015 online chat session:

Agent: Unfortunately, neither AT&T Business U-verse nor DSL services are available in your area. There may be several reasons why AT&T Business Internet Service is not available in your area. The most common reason is that there are a set number of ports to deliver service in each area, and we've reached capacity. It's also possible that your business is outside of the range to receive service.

A subsequent attempt to order a small business bundle of phone and Internet service resulted in this email from AT&T:

Dear Fred Pilot,
I'm sorry but internet services are not available to this address at this time. Do you want to continue with the phone line and long distance order?
Thank you for choosing AT&T.

Sincerely,

Shelley Zeigler
AT&T Small Business Online

 

* * *

I filed a complaint with the FCC on June 15, 2015 contending AT&T by failing to fulfill my order for Internet service was in violation of the FCC's recent Open Internet Order and specifically Title II SEC. 201(a) of the Communications Act that requires common carriers to "furnish service upon reasonable request therefor."

On July 30, 2015, I received this update from the FCC:

Hi Frederick,

Your Ticket No. 342043 was served on your carrier for its review and response.

Your carrier has provided the FCC with a response to your complaint. You should receive a copy of the response from the carrier within 7-10 days via postal mail. As such, no further action is required. Your complaint is closed.

Thank you for your complaint and help in furthering the FCC’s mission on behalf of consumers.

*  *  *

On July 18, 2015 I received an email from the manager of the AT&T Office of the President stating that AT&T reviewed my complaint and “determined that neither DSL or U-verse are available at this time,” adding that “AT&T also finds that it is not in violation of the Open Internet Order referenced in the FCC complaint.” 

Bottom line: The FCC closed the case based on AT&T’s assertion that it is not out of compliance with Title II SEC. 201(a). The FCC’s position appears to be we’ll accept AT&T’s word it’s in compliance with the law and move on. That’s hardly what could be termed enforcement by an entity established as a regulatory agency.

Since Comcast also nominally serves my ZIP Code, I also attempted to order Comcast’s 25Mbs Internet service from its consumer website. The site responded “The address you entered could not be recognized” and offered four other addresses in my ZIP Code with numbers matching my own. A few days later, Comcast left a voice mail stating my address was "not serviceable."

I filed a complaint with the FCC alleging Comcast was in violation of Title II Section 201(a) and a ticket was opened. Subsequently, Comcast sent me an email indicating Comcast could service my address if I paid $535,000 to expand its network:

To: Frederick Pilot
Sent: Monday, June 29, 2015 8:58 AM
Subject: RE: Comcast/ESL01973870/Pilot/AE  

Good Morning Mr. Pilot,   I hope your weekend was well. I have just received word from our serviceability team. The serviceability team has confirmed that your address is over a mile from Comcast’s nearest network. The estimated cost to have the Comcast network expanded to your home is $535,000.00. 

Kind regards

Alyssa Executive Customer Relations Comcast | West Division Office: 1-888-966-7794 Ext. 3007906 M-F: 8:00a – 4:30p PDT        

Another email from Comcast clarifying that I (and not Comcast) would have to bear the cost:

WST - Comcast Executive Customer Relations 5

Jun 29 at 10:06 AM

To:  Frederick Pilot

Mr. Pilot,   If you would like to discuss paying the estimated fee of $535,000.00 to have the lines ran to your home I can get you in touch with our construction team. Please let me know how you’d like to proceed.

Alyssa Executive Customer Relations Comcast | West Division Office: 1-888-966-7794 Ext. 3007906 M-F: 8:00a – 4:30p PDT

*  *  *

I added these emails to my FCC complaint file, pointing out the demand for such a large sum in order to provide Internet service potentially violates two additional Title II provisions:

• Section 254(b)(3) requiring Internet Service Providers to provide access to advanced telecommunications in all regions of the nation at rates that are reasonably comparable to rates charged for similar services in urban areas.
• Section 202(a) of the Communications Act insofar as it is an unjust, unreasonable and discriminatory charge in order to effect a common carrier communications connection per Section 202(b). 

Apparently this additional information didn’t pique the interest of the FCC, which closed out the complaint on July 17, 2015:

FCC Consumer Complaints July 17, 2015 08:29

Hi Frederick,

Your Ticket No. 351820 was served on your carrier for its review and response.

Your carrier has provided the FCC with a response to your complaint. You should receive a copy of the response from the carrier within 7-10 days via postal mail. (None was received as of 7/31) As such, no further action is required. Your complaint is closed.

Thank you for your complaint and help in furthering the FCC’s mission on behalf of consumers. 

A follow up query to the FCC asking why the complaint was closed produced no response.

Doug Dawson explains why telco wireless can't substitute for FTTP

What is 5G? | POTs and PANs: What all of this means is that a 5G network is going to require a lot more cell sites packed closer together than today’s network. That has a lot of implications. First, it means a lot more investment in towers or in mini-cell sites of some type. But it also means a lot more fiber to feed the new cell sites. And those two factors together mean that any 5G solution is likely to be an urban solution only, or a suburban solution only for those places where a lot of users are packed tightly together. No wireless company is going to invest in a lot more 5G towers and fiber to cover suburban housing sprawl and certainly nobody will invest in the technology in rural areas.

We already have a cellular wireless divide today with urban areas getting pretty decent 4G and rural areas with 3G and even some 2G. Expect that gulf to become greater as high-bandwidth technologies come into play. This is the big catch-22 of wireless. Rural jurisdictions have always been told to wait a while and not clamor for fiber because there will eventually be a great wireless solution for them. But nobody is going to invest in rural 5G any more than they have invested in rural fiber. So even if 5G is made to work, it’s not going to bring a wireless solution to anywhere outside of cities.

Doug Dawson provides a good explanation of why the economics and technology of telco wireless service -- including the next generation 5G service -- can't provide an economical solution compared to fiber to premise. Aside from spectrum providing inadequate bandwidth for growing household demand that only fiber can satisfy, telcos would have to invest in a lot more cell sites to feed the network, which as Dawson explains can't pencil out except in very densely populated areas.

A damning indictment of U.S. telecom infrastructure policy failure

Wired to fail - Tony Romm - POLITICO: A POLITICO investigation has found that roughly half of the nearly 300 projects RUS approved as part of the 2009 Recovery Act have not yet drawn down the full amounts they were awarded. All RUS-funded infrastructure projects were supposed to have completed construction by the end of June, but the agency has declined to say whether these rural networks have been completed. More than 40 of the projects RUS initially approved never got started at all, raising questions about how RUS screened its applicants and made its decisions in the first place.

But a bigger, more critical deadline looms for those broadband projects still underway: If these networks do not draw all their cash by the end of September, they will have to forfeit what remains. In other words, they may altogether squander as much as $277 million in still-untapped federal funds, which can’t be spent elsewhere in other neglected rural communities.

And either way, scores of rural residents who should have benefited from better Internet access — a utility that many consider as essential as electricity — might continue to lack access to the sort of reliable, high-speed service that is common in America’s cities. Even RUS admits it’s not going to provide better service to the 7 million residents it once touted; instead, the number is in the hundreds of thousands.

A damning indictment of the United States' policy failure to properly fund, plan and build Internet telecommunications infrastructure to serve all Americans. The American Recovery and Reinvestment Act's (ARRA) funding for Internet telecommunications infrastructure construction could have helped create a new generation of consumer cooperatives to build modern fiber optic telecom infrastructure just as the Rural Utilities Service did starting in the 1930s to support the deployment of electrical service.

But the ARRA allocated no technical assistance funding to help new cooperatives and local governments plan for the necessary fiber infrastructure to replace outdated copper cable, leaving the RUS and the National Telecommunications Infrastructure Agency unable to offer much in the way of real assistance. These agencies themselves erected roadblocks by adopting rules allowing legacy telephone and cable companies to block progress and veto proposed ARRA projects that could have constructed modern fiber to the premise infrastructure. Consequently, 55 million Americans (17 percent of the population) live in areas of the nation without Internet service as the U.S. Federal Communications Commission reported in early 2015.

Obama administration's ConnectHome initiative offers only partial solution to homework gap

Rather than a bold, disruptive initiative to speed the construction of fiber to the premise (FTTP) Internet infrastructure to serve all Americans and replace aging metallic infrastructure designed for legacy analog telephone and cable TV service that leaves many U.S. homes without Internet service, the Obama administration today announced a weak, narrowly focused initiative that targets low income households. From a policy perspective, that runs counter to the U.S. Federal Communications Commission's adoption this year of new regulations classifying Internet as a common carrier telecommunications service that must be universally available to all homes as voice telephone service has been for decades.

The administration's ConnectHome initiative also adopts classic incumbent telephone and cable industry talking points aimed at:

• Shifting the focus away from the nation's infrastructure deficits by playing up dollars invested in infrastructure and particularly mobile wireless infrastructure that can't provide sufficient bandwidth to serve most homes.
  
• Emphasizing Internet adoption and developing "digital literacy" as if it were still the 1990s when the Internet was just emerging and households were using it only for web and email access versus today when the Internet delivers voice and video services as well.

The United States faces a serious telecommunications infrastructure deficit that is reaching crisis proportions as those living in areas without service grow increasingly economically disadvantaged and their properties become less marketable. Data released by the U.S Federal Communications Commission in early 2015 indicate approximately 55 million Americans (17 percent) live in areas unserved for basic Internet service as defined by the FCC, with the gap narrowing by only three percentage points in the last year.

The White House fact sheet on ConnectHome issued today contains a narrowly proscribed analysis of the "homework gap" that occurs when school pupils can't access learning materials at home because their homes lack Internet service:

While many middle-class U.S. students go home to Internet access, allowing them to do research, write papers, and communicate digitally with their teachers and other students, too many lower-income children go unplugged every afternoon when school ends. This “homework gap” runs the risk of widening the achievement gap, denying hardworking students the benefit of a technology-enriched education. 

The homework gap isn't confined solely to low income households. It affects any home located in an area of the nation lacking premise Internet service regardless of socio-economic status. The administration need only ask educators like Jeremy Meyers, superintendent of the El Dorado County (California) Office of Education. Meyers wrote in his community newspaper about the emerging educational method known as "blended learning" in which pupils do much of their learning and class projects outside of the classroom via the Internet. Back in the classroom, teachers review their projects, answer questions and lead discussions.

As Meyers notes, blended learning requires good Internet connectivity both at schools and at students' homes. However, too many homes in Meyers' district lack even basic Internet service. "El Dorado County faces a special challenge that is assuming greater urgency each year: How to bring all our households into broadband Internet access in a cost-effective manner," Meyers wrote. "Having large Internet 'dead zones' is not acceptable in today’s world of connectivity. It limits us academically and hurts us economically."

AT&T teases a $5 Internet service to help seal the DirecTV deal - The Washington Post

AT&T teases a $5 Internet service to help seal the DirecTV deal - The Washington Post: AT&T will offer cheap Internet to food-stamp recipients if the Federal Communications Commission approves the telecom company's big acquisition of DirecTV.

In a regulatory filing, AT&T says it's prepared to make two plans available to low-income consumers. The first would provide speeds of up to 5 megabits per second (or roughly half as fast as the current national average) for $10 a month. After the first 12 months, that price would rise to $20 a month.

The other plan would be offered in places where AT&T lacks the infrastructure to provide faster speeds. In those areas, poorer Americans would be able to buy a 1.5 Mbps plan starting at $5 a month for the first 12 months. At that point, the price would increase to $10 a month.

It's hard to see how this will influence the FCC's review or what relevance it has given the FCC earlier this year set a minimum standard for Internet connectivity at 25/3Mbps. The proposal also is based on the inappropriate concept of Internet service as a consumptive utility like electric power, natural gas or water and that low income households thus should be offered a low cost consumption option to ensure they have service.

WSJ gets it wrong on Title II Internet universal service obligation

How Fast Internet Affects Home Prices - WSJ: Telecom companies by law are required to make telephone service available to every residence in their service areas, but the same isn’t true for all high speed Internet providers.

The Federal Communications Commission's newly issued Open Internet rules that took effect June 12 reclassified Internet service from an optional information service to a mandatory common carrier telecommunications service under Title II of the Communications Act, thereby bringing Internet service under the same universal service obligation as telephone service.

This is a glaring example of how the mainstream and much of the info tech media have buried and lost this quintessential Title II requirement as it was termed by Harold Feld of Public Knowledge under the rubric of "net neutrality."

Pew continues to survey as if it's 1999 on "Internet adoption"

Pew: Internet Penetration Reaches Saturation Levels – For Some - Telecompetitor: Internet penetration in the U.S. has reached saturation levels, at least for some groups, according to an analysis of 15 years of data collected by a Pew Research Center unit that has been tracking and studying Internet adoption and use in the U.S. since 2000.

The Internet saturation point has been reached for Americans – young Americans especially – with high levels of education and those who live in more affluent households, Pew highlights in “Americans’ Internet Access: 2000-2015.”

More than 8 in 10 of all American adults – 84 percent – now use the Internet, up from about half in 2000. Seventy percent of young U.S. adults used the Internet in 2000. That has increased steadily since 2000: Today 96 percent of young U.S. adults use the Internet. In contrast, it wasn’t until 2012 that more than half of U.S. adults 65 and older said they do.

These surveys of "Internet adoption" are growing increasingly irrelevant as the Internet delivers various types of services including data, video, voice, telemedicine, distance learning and control of home systems. The Internet is not a distinct service but rather a means of delivering multiple services -- and is now classified as a common carrier telecommunications service by the U.S. Federal Communications Commission.

That Pew continues to do these retrospective, backward looking surveys is puzzling in 2015. It does fit nicely however with the strategy of the legacy incumbent telephone and cable companies and their outmoded metallic Internet infrastructures to keep the concept of "the Internet" as it was in 1999 when it was used solely for data such as email and the then relatively new World Wide Web.

Fundamental flaw: Linear thinking prevails in an exponentially changing world of Internet-based telecom

The Law of Accelerating Returns | POTs and PANs: The FCC recently set the new definition of broadband at 25 Mbps. When I look around at the demand in the world today at how households use broadband services, this feels about right. But at the same time, the FCC has agreed to pour billions of dollars through the Connect America Fund to assist the largest telcos in upgrading their rural DSL to 15 Mbps. Not only is that speed not even as fast as today’s definition of broadband, but the telcos have up to seven years to deploy the upgraded technology, during which time the broadband needs of the customers this is intended for will have increased to four times higher than today’s needs. And likely, once the subsidy stops the telcos will say that they are finished upgrading and this will probably be the last broadband upgrade in those areas for another twenty years, at which point the average household’s broadband needs will be 32 times higher than today.

I laud Google and a few others for pushing the idea of gigabit networks. This concept says that we should leap over the exponential curve and build a network today that is already future-proofed. I see networks all over the country that have the capacity to provide much faster speeds than are being sold to customers. I still see cable company networks with tons of customers still sitting at 3 Mbps to 6 Mbps as the basic download speed and fiber networks with customers being sold 10 Mbps to 20 Mbps products. And I have to ask: why?

Some excerpts from an excellent blog post from Doug Dawson of CCG Consulting that explains to a great extent why the United States suffers from inadequate telecom infrastructure: employing an ill suited linear planning and business model for today's Internet-based telecommunications space that is expanding exponentially. I too have asked why -- why providers and regulators view Internet-based telecom like a consumptive utility such as electric power, water or natural gas and base their business models on packaging and selling bandwidth rather than telecommunications services? For example, see this provider's "dedicated optical fiber" service that slices and dices bandwidth into seven (yes, seven) bandwidth tiers at exorbitant prices on a fiber circuit that can easily deliver 1 Gigabit of bandwidth.

The consequence of the linear, incremental thinking that dominates in telecom manifests in what I have termed Levin's Law of Internet Infrastructure Inertia.*

*Blair Levin, a former U.S Federal Communications Commission official and lead author of the FCC’s 2010 National Broadband Plan observed in 2012 that the major landline ISPs had no plans to improve and build out their infrastructures. “For most Americans, five years from now, the best network available to them will be the same network they have today," Levin stated.

Homeowners near Palmer Divide stuck with slow Internet or no Int - KOAA.com | Continuous News | Colorado Springs and Pueblo

Homeowners near Palmer Divide stuck with slow Internet or no Int - KOAA.com | Continuous News | Colorado Springs and Pueblo: Imagine moving into your dream home, only to find out no company will provide you with Internet access.

We're not talking about living 60 miles away in the country, but near the Palmer Divide in northern El Paso County.

Five homeowners associations have joined together to create the Palmer Divide Broadband Coalition, a team hoping to grab the attention of state leaders and local officials to help bring broadband into their neighborhoods.

“Homeowners have been trying for about 8 or 9 years to get broadband service,” Palmer Divide Broadband Coalition Chris Davis said. "We've had home sales that were lost and properties that were under contract where they buyers backed out when they found out that broadband service was not going to be available to that home."

Keep an eye on this growing pain point with America's inadequate telecommunications infrastructure. The problem is creating direct adverse economic impact on communities redlined by legacy telephone and cable companies and otherwise left off the Internet grid.

Seattle's search for a viable FTTP business model

Gigabit Internet access for $45 a month: How Seattle could make it happen - GeekWire: Seattle’s top technology and budget officials say the city can’t bear the cost on its own, if funding for the project comes purely from subscriber fees. But they acknowledge that the city would have a better chance of bankrolling the build-out by adding a property tax to the mix.

A property tax would have several advantages. First, under the financial models used by consultant Columbia Telecommunications Corp., the monthly fee for subscribing to Seattle’s municipal Internet service would drop to $45/month if a property tax were used to subsidize the cost, rather than the $75/month envisioned otherwise.

This, in turn, would make it tougher for Comcast, CenturyLink or any other commercial provider to engage in a price war with the city.

This article is an excellent, comprehensive overview of the financial challenges Seattle faces in pursuing its decade-long goal of building fiber to the premise (FTTP) telecommunications infrastructure for Emerald City residents. Adding public funding in the form of property assessment reduces the so-called "take rate" risk of a purely subscriber paid business model for fiber to the premise (FTTP) such as employed by investor-owned incumbent telephone and cable companies.

As I've blogged previously, from a policy perspective a property assessment makes economic sense because studies have shown a fiber connection to a property boosts its market value just as does a paved road running nearby. It also has the knock on effect for local governments of bolstering economic activity and the tax revenue that such activity generates. Bringing public funding into the mix is also part of the business models of regional FTTP projects including the Utah Telecommunication Open Infrastructure Agency's (UTOPIA) public-private partnership (property fees) and WiredWest in western Massachusetts (municipal bonds supplemented by state grant funding).

But as long as incumbent telephone and cable companies are in the picture to the extent they are in large urban areas like Seattle, even mitigating the take rate risk with public funding doesn't solve all the financial challenges as noted in the article:

In an interview last week about the consultant’s report, Matmiller also cautioned that there would be no guarantee of success with the scenario of a $45/month rate subsidized by property taxes. “We still want a model that puts less risk to the system,” he said.“Even though it’s a cheaper monthly amount, if Comcast or a competitor comes in and uses their pricing power to match it and takes away the consumer argument to switch over, then we are stuck in same boat where now you’re paying a property tax and we have to shut down the system.”

Seattle like other municipalities reserves the nuclear option of inverse condemnation if it wants to push the incumbents out of the way in the name of progress to get FTTP to all city residents in a timely manner given the incumbents have no incentive to move quickly given their monopoly status. But that too comes with major downsides. The city would have to pay fair market value to the incumbents to acquire legacy metallic cable plant, adding more costs and likely years of delay as the condemnation process wound through the legal system.

Regional FTTP initiatives may have better odds of success than municipal projects

Broadband for all: 8 next steps for Seattle | Crosscut: According to the city’s study, Seattle would have to invest $460 million to $660 million in building this network. Seattle would need to get 43 percent of potential customers choosing the service at $75 a month in order to break even. Such a “take rate” is virtually impossible due to the serious competition already in place from Comcast, Wave, CenturyLink, Verizon, AT&T and other services. 

Seattle's situation shows that local government efforts to build universal fiber to the premise (FTTP) telecommunications infrastructure face high financial hurdles in urban areas where there are multiple incumbent providers.

Unlike municipal projects like these, regional FTTP initiatives in less urbanized parts of the United States where incumbent telephone and cable companies have less infrastructure and there are sizable areas lacking any landline Internet connectivity options may face better odds of financial viability. One such example is WiredWest, a cooperative of 44 Western Massachusetts towns that is in the formative stages and picking up speed quickly.