Comcast's Pandemic Price Hike Bonanza Continues

from the do-not-pass-go,-do-not-collect-$200 dept

You'd hardly know there was an historic economic and health crisis going on based on Comcast's behavior.

Clearly nervous about a new incoming regulatory regime that even semi-coherently focuses on consumer issues, Comcast last month expanded its bullshit usage caps into the Northeast, one of the only regions that had yet to be saddled with the charges. The monthly cap and resulting overage fees, which you can avoid by paying for an "unlimited" plan, serves no technical or financial purpose. The restrictions don't actually help manage network congestion, flat-rate broadband is already hugely profitable due to muted competition, and ISPs like Comcast can deal with a small minority of extra-heavy bandwidth users by pushing them to a business-class tier of service. It's literally just a cash grab on the backs of uncompetitive US broadband markets.

But Comcast's not stopping there. The company also recently imposed a price increase on its cable TV bundles, broadband service, and many of the bullshit fees it imposes on your bill to help it falsely advertise a lower rate. This includes the company's "Broadcast TV fee," which is literally just a portion of your existing cable TV bill, broken out and hidden below the line, leaving you uncertain of what you'll actually be paying for service until you've received a few bills. It's false advertising and predatory, but good luck finding a US regulator or lawmaker who much cares.

But Comcast's not even stopping there; the company also says it's going to start charging significantly more for house calls in the new year:

"The giant cable company, which serves 1.9 million users in Greater Boston, New Hampshire and Maine, will charge $100 to install cable service, effective Jan. 1. That’s up from a current price of $79. In addition, Comcast will charge $70 for in-house service calls, up from $40."

Again, this is just monopolistic price gouging of captive markets. Only made possible due to two things: a lack of competition in many markets, and utterly corrupt and feckless lawmakers and regulators. Folks in positions of "leadership" who have no problem with the fact the cable industry makes around $28 billion every single year simply on bullshit fees alone. That was always a problem, but it's a particularly pointed issue now that COVID has revealed how essential affordable broadband is for little things like, oh, survival.

And yet, US regulators and lawmakers who've spent the better part of the last two years hyperventilating about "big tech," have not only ignored the problem, they've happily gutted most oversight of natural monopolies like Comcast. The same Comcast whose broadband monopoly is only growing as traditional phone companies effectively give up on traditional, fixed residential broadband service.

Filed Under: broadband, competition, fees, pricing
Companies: comcast

Deep Dive Shows FCC's Covid Response Was Largely Theatrical Nonsense

from the you're-not-helping dept

Back in March, the Trump FCC put on a big show about a new "Keep America Connected Pledge" to help broadband users during COVID. In it, the FCC proudly proclaimed that it had gotten hundreds of ISPs to suspend usage caps and late fees, and agree to not disconnect users who couldn't pay for essential broadband service during a pandemic. The problem: the 60 day pledge was entirely voluntary, temporary, and because the FCC just got done obliterating its consumer protection authority over ISPs at lobbyist behest (as part of its net neutrality repeal), was impossible to actually enforce. It was regulatory theater.

The rather meaningless pledge has since expired despite the pandemic only getting worse. And because this FCC doesn't actually care about consumer protection (it literally doesn't even collect data on who is getting kicked offline for nonpayment during a plague), many ISPs simply ignored the pledge, and kicked users offline anyway; even disabled Americans who were told repeatedly by their ISPs that they wouldn't be booted offline for nonpayment during the crisis. Meanwhile, most ISPs have also restored their bullshit, arbitrary usage caps, making them a pretty additional penny during a crisis.

This week, Kelcee Griffis did an even deeper dive into the theatrical nature of the FCC's COVID consumer efforts. She obtained 3,000 complaints submitted to the FCC between June and August, and found that in 550 cases, consumers say they were kicked offline or faced late fees despite repeated promises from providers that they wouldn't do that:

"In some instances, customers begged the providers to work out a way to keep them connected, citing relatives who recently died or were hospitalized with the coronavirus, or budget constraints due to pandemic-related layoffs. Others reported they struggled to keep their small businesses afloat amid nationwide closures and stay-at-home orders, saying ISPs only added to their woes."

In many cases, consumers argued that they were actually worse off after getting ISP "help" than they had been if they hadn't done anything at all:

"Customers in New York, Arizona and Pennsylvania said ISPs promised extended or suspended data caps but did not inform them when they must start paying again for the increased capacity, resulting in bills that ranged from about $200 to $600.

A Mesa, Arizona, customer even expressed regret that they accepted help from Cox Communications.

"Now that the [$30 monthly] COVID discount is gone, I have a bill that is $30 higher than it was six months ago," the customer wrote in late July. "That is unreasonable to me. I would have been better off not having the COVID discount since it appears to me they off-set the discount by increasing the fees for the services I had."

Unless you're one of a surprisingly large contingent of folks that thinks kissing AT&T's, Comcast's, and Verizon's asses is helpful and serious adult policy, none of this should be particularly surprising. The FCC basically self-immolated at lobbyist behest, leaving it without the authority to do much during a major health and economic crisis. Even the things the FCC could be doing -- like actually tracking what struggling Americans are getting kicked offline -- it's simply not doing. Instead, it engaged in regulatory theater designed to make it look as if having crippled regulators during a crisis isn't a bad thing.

It's all part of a deep ideological delusion that exists in many corners and is propped up by a massive industry of telecom-linked monopoly apologists. Folks who would have you believe that if you mindlessly pander to natural monopolies, freeing them from "burdensome regulations" (read: absolutely anything that could help real people, markets, or competitors at the cost of monopoly revenues) it somehow results in near-Utopian outcomes. In reality, with neither competition nor adult oversight to constrain them, natural monopolies inevitably just double down on the same bad behavior.

There's literally forty years of history making this point abundantly clear, yet the U.S. seems utterly intent on learning absolutely nothing from history or experience.

Filed Under: broadband, competition, covid, covid-19, digital divide, fcc, keep america connected pledge, pledge
Companies: at&t, comcast, verizon

Comcast Increases Prices And Bogus Fees In The Middle Of A Pandemic

from the do-not-pass-go,-do-not-collect-$200 dept

Last week, we noted how Comcast had expanded its bullshit broadband usage caps during a pandemic, insisting that the confusing, technically-unnecessary restrictions were being deployed in an alleged act of fairness. Of course as we noted, there's nothing "fair" about costly, punitive surcharges that serve absolutely no technical purpose, and exist exclusively so a monopoly can extract additional revenue from monopolized markets and captive subscribers with no alternative ISPs to choose from.

But Comcast's not just using usage caps to extract its pound of flesh. The company is raising prices across most of its services just before the new year, including significant price hikes for its TV services, broadband services, and hardware rental costs. Comcast will also be increasing a bevy of misleading fees, including another $4.50 per month for the company's "Broadcast TV Fee," which is simply some of the cost of programming broken out and hidden below the line, so that the company can falsely advertise a lower rate than you'll see on your final bill:

"Other changes for 2021 include a Broadcast TV Fee increase of up to $4.50 depending on the market; $3 increase for Internet-only service; and up to a $2.50 increase for TV boxes on the primary outlet, with a decrease of up to $2.45 for TV boxes on additional outlets," the Comcast spokesperson added. The fee for a customer's primary TV box is rising from $5 to $7.50, while the fee for additional boxes is being lowered from $9.95 to $7.50."

Comcast isn't engaged in any meaningful network upgrade projects to necessitate such notable price hikes, so this is simply a monopoly raising prices on its services, including an essential utility, during an historic health and economic crisis.

And of course Comcast can get away with this for two reasons. One, roughly 83 million Americans live under a broadband monopoly (usually Comcast), so there's no place for these customers to flee to. And despite a lot of chippy, feel good talk about the "digital divide" being his top priority, Trump FCC boss Ajit Pai is a feckless bureaucrat who has never had the backbone to stand up to this industry on any issue of real substance. Pai hasn't made so much as a peep as a major US broadband provider imposes major new additional costs in the middle of a pandemic crisis in which broadband in an essential lifeline.

You'd think the obvious one-two punch of limited competition and regulatory capture would drive US policy makers to action. Instead, most US policymakers spend their days either pretending there is no telecom monopolization problem, or engaging in performative histrionics over "censorship" by "big tech monopolies." Having just effectively convinced the Trump FCC to neuter itself at lobbyist behest, the US government is in a weaker position than ever when it comes to standing up to telecom monopolies or protecting already struggling Americans from a telecom monopolization problem we often refuse to even acknowledge, much less fix.

Filed Under: broadband, competition, covid-19, fees, pandemic, prices, usage caps
Companies: comcast

Comcast Expands Its Bullshit Usage Caps...In The Middle Of A Pandemic

from the read-the-room dept

Contrary to what some try to claim, broadband usage caps have always been bullshit. They serve absolutely no technical function, do not help manage congestion, and exist exclusively to nickel-and-dime captive customers in monopolized U.S. markets. Worse, they can be used by incumbent ISPs anticompetitively to hamstring competitors in the streaming video and other markets.

Comcast, for years, has been slowly expanding these unnecessary and costly restrictions in line with the frog in the boiling pot fable (you're the frog, unless that wasn't clear). The only area the company hadn't yet deployed the restrictions was in the northeast, largely due to the added competition Comcast sees in the area from uncapped Verizon FiOS. Apparently Comcast has gotten tired of waiting, so they've announced that they've implemented a new 1.2 terabyte cap across the Northeast, which will be fully implemented by March:

"...effective March 1st, residential customers will begin facing overlimit fees for exceeding their data allowance at a rate of $10 for each 50 GB of excess usage, up to a maximum of $100 a month. Customers will not be credited for unused data, cannot rollover unused data, or be charged less than $10 in overlimit fees, regardless if one used 1 MB or 49 GB over the 1.2 TB allowance.

Customers approaching their usage limit will receive email, text messages, and Xfinity X1 on-screen notifications upon reaching 75% (email only), 90%, and 100% of 1.2 TB of data usage. Overlimit fees that subsequently start accumulating will be noted in email and X1 on-screen notifications for each additional 50 GB of usage over 1.2 TB, up to the maximum overage charge of $100."

Folks will quickly (as usual) get caught up in a discussion about how 1 terabyte a month is "fair," ignoring, again, that these restrictions serve no purpose outside of jacking up U.S. broadband bills, which, even under flat-rate pricing, are some of the most expensive in the developed world thanks to monopolization and corrupt state and federal regulators. The industry doesn't even try to pretend that such restrictions "help manage congestion" (they do not). Nor do they help manage "heavy users," which can already be shoved toward more expensive business-class tiers when needed.

It's not a great look for Comcast during a pandemic when broadband is essential and countless Americans are already struggling to pay their bills. Comcast must have done the calculus and figured the outrage will likely be muted enough to prevent any meaningful backlash. After all, unless you live in a Verizon FiOS market in the Northeast, most of these users don't have any competing ISPs to flock to. And historically, neither party has much cared that entrenched monopolies routinely rip off American consumers with costly and confusing restrictions that serve no purpose outside of jacking up already high monthly bills.

With neither competition nor adult regulatory oversight to keep Comcast in check, who is going to do anything about it?

Filed Under: broadband, competition, covid-19, data caps, pandemic, streaming, usage caps, video conferencing
Companies: comcast

Comcast Tells Customers They May Lose Access To Comcast Channels If Comcast Can't Agree With Comcast

from the do-not-pass-go,-do-not-collect-$200 dept

Comcast is informing the company's 20+ million cable TV customers that they may lose access to Comcast TV channels next month if Comcast can't come to some sort of agreement with... Comcast.

It's an absurd twist on the already annoying practice of carriage disputes, where customers pay the price for broadcasters and cable TV providers being unable to come to terms on new agreements after old ones expire. Usually, this involves both the cable company and the broadcaster trying to get customers pissed at the other guy, despite both sides pursuing relentless rate hikes (be it for programming or cable set top box rental). Usually this results in outages that customers don't get refunds for, after which a new confidential deal is struck and consumer prices go up anyway.

While there have been some flimsy discussions about protecting consumers from these kinds of stand offs, not much comes of them. Matthew Keys notes how this particular standoff effectively involves Comcast bickering with itself (Comcast NBC Universal):

"But the Comcast situation is unusual because the cable giant owns NBC Universal and the channels that are slated to be dropped. The channels are carried under an agreement negotiated between the cable service and its subsidiary broadcast and cable network group.

“Comcast has successfully renegotiated thousands of expiring contracts over the years and rarely experienced an interruption of service,” a statement included with the notice said. “However, it is possible that contracts for the channels listed below will not be renewed, in which case Comcast would no longer have the right to carry those channels on our systems."

Needless to say, it's pretty likely that Comcast will be able to agree with Comcast before Comcast customers lose access to channels they pay for. And the notice was created because cable providers are legally obligated to inform customers of looming blackouts when a new contract hasn't been signed yet. But I think Cory Doctorow does a good job getting to the heart of this absurdism by noting its origins lie in trying to pretend that monopolistic business sectors are more competitive than they actually are, and creating the illusion that monopolies are good and efficient:

He also quite correctly notes that the performative nonsense (and unnecessary stress placed on the backs of customers during an already stressful time) is generated by a need to create the illusion of competition, but also to help set the rates Comcast gets to charge other, largely unaccountable media giants:

Either way, these fights have been getting increasingly worse over the last decade, with consumers routinely losing access to TV content they pay for -- and almost never getting a refund. Regulators in the Trump era effectively giving up on consumer protection hasn't helped. And while the added competition from streaming has helped matters somewhat, you can expect entirely new issues as the battle over gatekeeper dominance simply changes shape.

Filed Under: carriage disputes, tv
Companies: comcast

U.S. Cable Broadband Monopolies Close In On 70% Broadband Market Share

from the Do-not-pass-go,-do-not-collect-$200 dept

The U.S. telecom industry's monopolization problem shows no sign of slowing down.

According to the latest data from Leichtman Research, the cable industry is nearing a 70% market share over fixed line broadband. That's thanks to many reasons, not least of which being that most U.S. phone companies have effectively given up on seriously upgrading their aging DSL lines, driving a greater portion of Americans to the only companies actually offering modern broadband speeds: Charter (Spectrum) and Comcast. Phone companies collectively lost another 150,000 subscribers last quarter, while cable providers added about 1,400,000 users in just three months.

For the cable industry, this is all a wonderful thing. Less competition from phone companies, combined with a Trump FCC that couldn't care less about the sector's competition problems, means they can get away with charging higher rates than ever for a service that comes (not coincidentally) with some of the worst customer service ratings of any industry in America (seriously stop and think about that for a moment).

With COVID-19 making it clear that broadband is an essential utility, users are flocking to cable connections if they want to remain tethered to their jobs, education, and friends. Charter (Spectrum), as a result, saw 850,000 new customers in one quarter alone, a quarterly record for any broadband provider, at any point in U.S. history:

"With the continued impact of the coronavirus pandemic, there were more quarterly net broadband additions in 2Q 2020 than in any quarter in eight years,” said Bruce Leichtman, president and principal analyst for Leichtman Research Group, Inc. “In the first half of 2020, there were over 2.4 million net broadband additions. This is the most net adds in the first half of any year since 2008."

That's great news for cable giants, but not so great for consumers, smaller competitors, or the health of the internet.

Less competition overall means not only higher flat-rate prices, but more annoying fees, usage caps, and overage surcharges. It also means less incentive than ever to behave on subjects like net neutrality or privacy, improve customer service, or expand service into lower ROI areas (despite billions in tax breaks, subsidies, and regulatory favors). What exactly exists to curtail these companies' worst impulses or motivate them to do better? They face no competition, and U.S. regulators and lawmakers are potentially the most captured they've been at any point in the last 50 years.

There's a small glimmer of hope that low-orbit satellite ventures (from the likes of Space X and Amazon) and fifth-generation wireless (5G) could help shake things up, but the former lacks the capacity to seriously disrupt denser markets, and the latter still is far from being a direct competitor to fixed-line broadband due to high prices and nickel-and-dime connection restrictions. Meanwhile one of the more disruptive aspects of U.S. telecom, community-owned or public/private partnerships, have been under steady assault by the Trump FCC.

U.S. monopolization is not a bug, it's a feature. There is no panacea here, and nothing changes without both a dramatic shake up in American leadership, and major reform to rein in AT&T, Comcast, and Verizon's political influence over both state and federal lawmakers and regulators.

Filed Under: broadband, cable, competition, market share, monopolies
Companies: charter, charter spectrum, comcast

The Harry Potter Films Are Now Exclusive To Comcast, And The Streaming Sector Remains Oblivious To Piracy's Looming Resurgence

from the history-repeats-itself dept

The rise of streaming video competitors is indisputably a good thing. Numerous new streaming alternatives have driven competition to an antiquated cable TV sector that has long been plagued by apathy, high rates, and comically-bad customer service. That's long overdue and a positive thing overall, as streaming customer satisfaction scores suggest.

But as the sector matures, there's a looming problem it seems oblivious to.

Increasingly, companies are pulling their content off central repositories like Hulu and Netflix, and making them exclusive to their own streaming platforms, forcing consumers to subscribe to more and more streaming services if they want to get all the content they're looking for.

Want to watch Star Trek: Discovery, you need CBS All Access. Can't miss Stranger Things? You'll need Netflix. The Boys? Amazon Prime. The Handmaid's Tale? Hulu. Friends? AT&T. This week it was Comcast's turn in announcing that the Harry Potter films would now be exclusive to Comcast's new streaming service, Peacock. Of course it's not as simple as all that. The titles will appear and disappear for the next few years, being free for a while... then shifting to a pay per view model for a while:

"According to Frances Manfredi, president of content acquisition and strategy for Peacock, the Potter movies will play on the service during multiple windows between October and March. The first window will last for a month, with the movies then airing on NBCU’s linear broadcast and cable networks (and, potentially, their websites). They’ll then return to Peacock early in 2021. It seems likely that Peacock and HBO Max could continue to share custody of young Mr. Potter and his friends through 2025, though as of yet, no deals have been worked out for future shared windows."

No, AT&T and Comcast probably aren't going to "share" the Harry Potter films, meaning that to watch them you need to embrace the Comcast ecosystem. And while superficially you can easily understand why companies would want to lock down massive droves of exclusive content to drive subscriptions as the streaming wars heat up, there's a certain myopia going on in terms of the impact. There doesn't seem to be much of an awareness of that while competition is certainly good, having too many cordoned off exclusivity silos and too many content licenses shifting under the feet of consumers could generate confusion and drive more people to the simplicity of piracy.

In fact, there's some early anecdotal evidence this is already happening, and a few studies predicting it will get worse as every broadcaster and their moms jump into the streaming space. A 2019 Deloitte study found that nearly half (47 percent) of US consumers already suffer from “subscription fatigue,” and 56 percent were frustrated by quickly changing licensing deals.

Yes, some of this will settle slightly as "me too" competitors are shaken loose by competition. And yes, unlike traditional cable, it's great that you can cancel and restart these services at any time (though like AOL or Wall Street Journal digital subscriptions, history suggests they'll make cancellation harder and more cumbersome as companies lock down their share of the pie). The problem also creates a wonderful opportunity for folks to design better platforms that help aggregate all available content and subscriptions in a way that's not an annoying nightmare.

So it's not like this is a problem that impossible to navigate. But the problem remains that most cable companies, broadcasters, and tech giants are all rushing toward the streaming trough without really appreciating that they risk driving users to piracy if they forget to focus on simplicity and cost. And in a few years when piracy rates soar, if history holds, most of these executives will wind up blaming everybody (people just want stuff for free!) and everything (VPNs!) but themselves and their obsession with siloed exclusives.

Filed Under: competition, exclusivities, harry potter, piracy, silos, sreaming
Companies: comcast

Charter Spectrum's Bullshit 'Broadcast TV' Fee Soars To $16.45 Per Month

from the nonsensical-surcharges-may-apply dept

Like countless other American business sectors, U.S. cable and broadband providers have been using hidden fees to covertly jack up their advertised rates for much of the last decade. These fees, which utilize a rotating crop of bullshit names, help these companies falsely advertise one rate, then sock the consumer with a significantly higher rate post sale (often when locked into a long-term contract). They also let them falsely try and claim that prices haven't increased, when they pretty clearly have.

Back in 2014, Comcast introduced a new $1.50 per month surcharge on cable bills it called its "Broadcast TV Fee." Said fee was really just a portion of the cost of doing business for Comcast (programming costs), busted out of the full bill and hidden below the line -- again to help the company falsely advertise a lower price. Fast forward to 2020 and the fee is now $15 per month, per user, and growing -- despite a number of lawsuits (correctly) alleging that the fees are misleading and predatory.

And it's not just Comcast. Charter (Spectrum) has also heavily embraced such a fee, its own "broadcast TV surcharge" getting jacked from $13.50 to $16.45 a month starting in August:

Charter has raised the fee repeatedly—it stood at $9.95 in early 2019 before a series of price increases. At $16.45 a month, the fee will cost customers an additional $197.40 per year. Charter sells TV, broadband, and phone service under its Spectrum brand name and is the second largest cable company in the US after Comcast.

One other "handy" benefit to the fee (for Charter and Comcast) anyway, is that it lets the companies tap dance out of consumer "price lock" guarantees or promotional rates, by letting them pretend that arbitrary fee increases are not actual price hikes. Charter also imposes a slightly smaller Broadcast TV fee on its streaming TV plans, with that fee getting jacked from $6 to $8.95 a month. That's, of course, in addition to all the other arbitrary fees and surcharges tacked onto your monthly bill, including broadband usage caps and overage penalties.

It's the sort of running scam that would be prohibited by functioning, objective consumer protection regulators or lawmakers, were we to actually have such a thing.

Filed Under: bogus fees, broadcast tv fee, cable tv, fcc, ftc, price increase, truth in advertising
Companies: charter, comcast

Old School TV Gatekeepers (AT&T, Comcast), Struggle With Modern Streaming Gatekeepers (Amazon, Roku)

from the meet-the-new-boss... dept

In years past, incumbent broadband and television giants like Comcast and AT&T enjoyed life from a comfortable position of dominance. If you want to subscribe to broadband, such companies are often your only option. If you wanted to subscribe to television service, you were required to rent a locked down, highly proprietary cable box courtesy of the industry's cable hardware monopoly. Want to have your cable channel in a conspicuous position in the lineup? You could also expect headaches.

As such, it's interesting to watch how these giants of yesterday are now struggling to adapt to a new era in which their interests are not the end all, be all of negotiations.

As AT&T tries to reverse the tide of TV customer defections, it has turned to the launch of yet another streaming service: HBO Max. But the company's efforts haven't gone as planned, with the service unavailable on two of the most dominant TV streaming hardware platforms (Roku and Amazon) due to contract disputes. AT&T, a government pampered giant that traditionally enjoys playing the role of the politically powerful bully (remember net neutrality?), hasn't been able to break this logjam despite HBO Max having launched a month ago:

"But streaming is an entirely new battlefield, with platforms like Roku and Fire TV becoming the main distributors. And legacy media companies like WarnerMedia and Disney are streaming newcomers with everyone seeking to challenge Netflix. None of the three companies would comment on the state of talks or say what the current impasse is over. Analysts agree that it probably harms HBO Max as it seeks to find its footing more than Roku and Amazon, which have built their businesses and subscriber bases over the past few years."

Comcast, despite all of its money, political influence, and power, is running into the same problem. The company's upcoming new streaming service, Peacock, also won't be launching on Roku (39% market share) or Amazon (30% market share) streaming hardware. It's a disadvantaged position AT&T and Comcast certainly aren't quite used to:

"Combined, Roku and Amazon have around 70 percent of the streaming TV-specific hardware market. Both companies have leveraged their market dominance to try to secure distribution deals on terms that are favorable to them. Those deals include data-sharing agreements and the right to sell subscriptions to streaming services to viewers natively through Roku and Amazon’s operating system, according to individuals familiar with the matter."

There are different negotiations hangups for both AT&T and Verizon. The AT&T and Roku standoff purportedly centers around AT&T being unwilling to let Roku customers who've already paid for HBO via Roku (who gets a cut) access AT&T's HBO Max app (read: AT&T doesn't want middlemen getting a cut). The Roku and Comcast standoff, in contrast, allegedly is focused on a dispute over advertising and access to viewer tracking data. In both instances, dominant monopolists are now being forced to compromise as they attempt to pivot to disruption... and at least so far, it's not going particularly well.

Filed Under: broadband, competition, gatekeepers, streaming, tv
Companies: amazon, at&t, comcast, roku

Court Shoots Down AT&T, Comcast Attempt To Crush Maine Privacy Law

from the have-your-cake-and-eat-it-too dept

Over at our Tech Policy Greenhouse, former FCC official and consumer advocate Gigi Sohn just got done discussing a landmark privacy case in Maine that hasn't been getting enough attention. The short version: back in 2017, the GOP killed some pretty modest FCC broadband privacy rules at the telecom lobby's behest. Despite a lot of whining from telecom giants, those rules weren't particularly onerous -- simply requiring that ISPs be transparent about what data they're collecting and who they're selling access to, while requiring that users opt in to the sharing of more sensitive financial data.

Much like net neutrality, federal lobbying by telecom giants had an unintended impact: namely once the feds showed they were too corrupt and captured to protect consumers, states began passing their own laws (some good, some bad) in order to fill the consumer protection void. On both the privacy and net neutrality fronts, giant ISPs like AT&T and Comcast cried repeatedly about how this created a "discordant and fractured framework of state protections," hoping you'd ignore this was a problem the industry itself created by relentlessly attacking even the most modest federal guidelines.

Last year, Maine passed one such privacy bill modeled after the discarded FCC rules. Again the focus was largely on requiring that ISPs be transparent about what data is collected and who is buying access to it, while requiring that users opt in to the share and sale of access to more sensitive data. It also banned ISPs from charging you more money just to opt out of snoopvertising, something AT&T has already experimented with. The law was not, as telecom giants and their dollar per holler allies have claimed, particularly onerous.

Comcast and AT&T sued anyway in a bid to have the law thrown out before a broader trial. In short, ISP lawyers tried to argue that giving consumers control over their own data violates ISPs' First Amendment right to market goods and services. They also claimed that by passing a privacy law that specifically targeted telecom providers, the law is based on their status as a "speaker" and should be subject to "strict scrutiny" under the First Amendment, which requires a law to be "narrowly tailored to serve a compelling state interest." As Sohn noted, while the case didn't get a lot of attention, the precedent of a telecom industry win here would be terrible for future efforts to pass any kind of intelligent, industry-specific tailored privacy protections whatsoever:

"Should it accept [these arguments], it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional "speaker-based" violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.

Things didn't quite work out as Comcast and AT&T had hoped. This week, a Maine court shot down AT&T and Comcast's attempt to have Maine's law trashed, ruling (pdf) in favor of Maine Attorney General Aaron Frey, who had argued that Maine's law "regulates a space Congress explicitly left open, and any conflict is a figment of Plaintiffs’ imaginative pleading." In the ruling, Judge Lance Walker noted that Maine's privacy law can't conflict with federal guidelines, because the industry and government worked hand in hard to eliminate said guidelines:

"Congress’s nullification of the ISP Privacy Order, therefore, creates no overarching federal policy, and enacts no scheme with which the Maine Privacy Statute can conflict."

In its net neutrality repeal (which gutted FCC oversight over ISPs), the FCC tried to include a provision banning states from protecting consumers. But courts so far haven't looked kindly upon that effort, noting that federal regulators can't abdicate their consumer protection authority, then tell states what to do. Walker again supported that position here. Walker also didn't seem to think much of the telecom industry's claim that the law violated their First Amendment rights:

"Plaintiffs’ Motion simply fails to clarify how an ill-defined opt-in and opt-out regime would inhibit any protected First Amendment activity; for example, how it might chill them from preparing particular marketing materials for sale to customers. And, they have not begun to bear their burden to show the statute would be unconstitutional in "all of its applications," as they must for a facial challenge."

The case will now proceed to a full trial. But it's worth noting this is just one of several fronts where the telecom industry is lobbying to kill federal consumer protections, then arguing that states are prohibited from doing anything on their own. The industry wants to have its cake and eat it too; it's pushing for a world in which nobody anywhere would be able to hold natural, widely despised monopolies accountable for pretty much anything. Their arguments surrounding free speech are not made in good faith; they're a flimsy attempt to use the First Amendment to effectively eliminate any and all oversight of a sector with a thirty-year history of anti-competitive and often fraudulent behavior.

So far, as we also saw when the net neutrality repeal tried to ban states from protecting consumers, this effort is not going particularly well. But as the courts are increasingly gutted and staffed with dutiful partisan bobbleheads, there's no guarantee that trend persists.

Filed Under: 1st amendment, broadband, fcc, free speech, maine, net neutrality, privacy, state laws, telcos
Companies: at&t, comcast