I'm Suing New York City to Loosen Verizon's Iron Grip

The powers that be are withholding information that will help us get better internet access. This cannot stand.
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A couple of months ago, I interviewed a woman in public housing in the small town of Wilson, North Carolina. She told me that the best thing that ever happened to her family was getting internet access over the city's municipal fiber network. Included in her monthly rent bill is a $10 fee for 50 Mbps symmetric access (equal uploads and downloads). Why is this so wonderful? Because her sons are getting better grades, now that they don't have to go to the library to use the internet.

Sadly, New York City is far behind Wilson, NC when it comes to ensuring ubiquitous, reasonably priced fiber optic internet access for every resident. As far as anyone can tell, the digital divide in the city is stunning: A September 2015 audit by City Comptroller Scott Stringer’s office found that more than a quarter of city households lacked “broadband” internet access (defined as any wired connection other than dial-up, meaning that monthly subscriptions to totally antiquated DSL connections over copper lines qualified). Neighborhoods in the Bronx and Brooklyn were least likely to have signed up for internet access.

We know that the primary reason people don’t sign up is price. This point keeps coming home to me as I interview people from all walks of life in the scrappy cities across the country that are doing something about a ubiquitous upgrade to inexpensive fiber connections. People really want and need this connectivity.

Yet in our flagship city, prices for second-rate (non-fiber) access are artificially sky-high and out of reach for many families. And what’s so remarkable is that the city actually does have the regulatory authority to do something about inadequate competitive fiber access in Manhattan and the Bronx.

Yes, folks: New York City is the regulator of all the underground conduit in those two boroughs — meaning the pipes running under the streets through which fiber optic lines are threaded. At any moment, it could require that additional conduit be built where it doesn’t now exist. It could require that choked-up conduit that is now decades old be cleaned and repaired. And it could require that that conduit run to every building in the city, and require that all new buildings have neutral connection points in their basements allowing many competitors to hawk their services to tenants.

If the city took these steps — which, by the way, are now being contemplated by San Francisco, so perhaps peer pressure will nudge things along — it would foster a vibrantly competitive marketplace for retail fiber-based services for everyone. Dozens of competitors. Low prices for data transmission.

But the problem is that, as far as I can tell, the city that never sleeps is, in fact, asleep: It is not taking advantage of its powers.

That is why I sued the city five years ago seeking information about its regulatory efforts.

Here is some good news: A state court in New York recently agreed with me that information about what the city is up to as a regulator, particularly in underserved areas, should be made public. Time Warner Cable (now Spectrum), AT&T, and Verizon don’t want that information to come to light. But citizens of New York should.

Weirdly, this story of modern-day internet access begins 126 years ago. Following the Great Blizzard of 1891, during which the tangled lines of the city’s many private telephone companies fell and caused communications chaos, the city muscled all the communications utilities into cooperation and forced them to bury their lines.

A single entity, called Empire City Subway, was formed to build, maintain, and expand conduit under the streets of Manhattan and the Bronx. (The word "subway" here refers to underground spaces or paths, not trains.) Under an 1891 contract with the city, which has never been amended, ECS was given the exclusive franchise to do this job.

After decades of consolidation — surprise! — ECS is now a wholly-owned subsidiary of Verizon. Yes, ECS still has a contract with the city under which the city can order and direct the building and maintenance of conduit, including conduit it needs for its own purposes. The city can require that conduit be expanded. But Verizon answers the phone. Tricky.

Here’s another wrinkle. People who follow the communications morass in New York City may remember that Verizon worked a deal in 2008 with the Bloomberg administration in which the company sort of agreed to wire every building with its proprietary (and very expensive) fiber services. This hasn’t happened. There are lots of reasons for this, including landlord intransigence, loose legal language, and likely disinterest on Verizon’s part in serving neighborhoods in which people can’t pay its FiOS rates.

But having FiOS everywhere wouldn’t have been the best solution for the city as a whole anyway. What you really want is a utility service in any of three forms: “dark air” (lots of clean, ready-to-go conduit everywhere, running all the way to every building and residence, available to any retail provider at nondiscriminatory prices), or “dark fiber” (lots of passive, unlit fiber in the ground everywhere, ready to be lit by any retail provider), or a very fast, cheap fiber service designed and run in the public interest, as in Wilson. (As I’ve written many times, open fiber with frequent neutral connection points for “5G” wireless is the only technology that makes sense to deploy these days.)

Any of these paths leads to reasonably-priced retail fiber service, particularly if the city is willing to require that providers in poorer neighborhoods or to public housing units sell that service at sharply discounted prices. That last step would go a long way toward addressing the city's shameful digital divide.

But in order to follow any one of these three routes, the city would have to really take charge of its conduit. It would have to stop letting Verizon dictate the future of city-wide connectivity.

As far as I can tell, the city simply hasn’t done this. A 2010 audit backs me up: John Liu, then the NYC Comptroller, found that “DoITT [NYC’s Department of Information Technology and Telecommunications] has not ensured that ECS effectively manages, constructs, or retires conduits as required by...the agreement.” The report also noted data strongly suggesting that ECS was favoring its parent company, Verizon, when constructing or filling new conduit.

Here's the relevant language from the ECS contract:

If at any time the space in such subways, conduit ducts shall not be sufficient for all the companies or corporations so applying for the same, or for the City of New York, or any of its departments, the additional space needed shall be provided by the party of the second part [i.e., ECS] at its own cost, by the construction, maintenance, equipment and operation of additional subways, conduits and ducts, sufficient therefore, subject, however, to the same conditions and the same control by the parties of the first part or their successors, [i.e., New York City] as the original subways, conduits and ducts are by the terms of this contract and by any law.

To decode: The contract requires ECS to construct, maintain, and expand conduit when needed by competitors or the city, and then lease that conduit at nondiscriminatory rates to the entities that need it. In return, ECS gets to keep a 10 percent return on its capital expenses, and is supposed to return any excess profits to the city. The city, represented by DoITT, is supposed to oversee the contract.

We have no idea how the city is doing as a regulator and manager of the conduit under the streets of Manhattan and the Bronx. The scraps of information we have are not promising: It appears that portions of the ECS conduit network are in terrible shape, with lots of clogged or collapsed conduits out there. But because of the city's stonewalling, we have no idea how bad this problem is.

We have no public information about the state or even existence of such conduit in the poorer parts of Manhattan and the Bronx, or who is providing service where, or at what cost. We don’t know whether conduit goes all the way to buildings. We don't know whether the city or ECS is charging nondiscriminatory rates for access to conduit or taking other steps that would encourage competition. We don't know whether the city is ensuring that there are adequate neutral interconnection points with conduit for advanced wireless services. All of this information is apparently secret.

In 2012, I filed a Freedom of Information request asking that information about ECS's activities be made public. For the last five years, the Yale Law School Media Freedom & Information Access Clinic has been valiantly assisting me.

Here’s the logic I have been following: Public disclosure of this information may facilitate greater competition for fiber internet access service, and will better allow researchers, political leaders, and New York citizens generally to monitor whether the city of New York is fulfilling its mandate, taking appropriate steps to ensure the development of necessary infrastructure throughout the city, and adequately overseeing the city’s contract with ECS. The city is supposed to ensure that ECS effectively and efficiently makes conduit available to internet service providers as needed by them and in a manner that promotes affordable internet access to all New York residents. And it should be able to show us it is doing its job.

We started off in January 2012, with a petition seeking the geographic location of ECS conduit. The city refused to release maps, saying that the information was exempt from disclosure because of “life safety” and “critical infrastructure” carve-outs in New York law. The court agreed that there were some critical infrastructure concerns involved in releasing maps, but went on to say that there might be other forms of documents that could be released — and urged the city to keep looking.

In late 2014, the city received from ECS some spreadsheets with information about location, availability, and use of ECS conduit. So we filed another information request, asking for more detailed data. After a lot of wrangling, in early 2015 the city disclosed heavily redacted versions of the spreadsheets — giving us only lists of manhole and duct identification numbers. The city wouldn’t even explain to us what the numbers meant, and claimed that information that had been blanked out in the CUSTOMER column of the spreadsheets (presumably the particular entity renting particular conduit) was entirely a trade secret.

We appealed in mid-2015. By this point, we had narrowed our request to seek only information about underserved areas, to keep the focus on the searing and destructive problems of inadequate access in the city that are amplifying and entrenching existing inequality. A whole generation of law students had come and gone since we started this process. New ones arrived and kept scrambling through this matter, patiently responding to a flurry of objections from Time Warner Cable (now Spectrum), Verizon, AT&T, and ECS.

Last month, following an adept presentation of our arguments by teaching fellow and supervising attorney Hannah Bloch-Wehba of the Yale Law School Clinic, Judge Joan B. Lobis of New York Supreme Court issued a lengthy decision supporting our request for information.

Judge Lobis didn’t buy the city’s argument that none of this information could be disclosed because it would jeopardize public safety. The city, she found, has a “responsibility to consider the possibility of ‘partial disclosure and careful redaction.’” Judge Lobis also didn’t agree that information about who rents what was a trade secret; the access to information laws, she said, “do not exist to enable service providers to avoid competition.”

This was an important victory. Now that the idea of federal-level industrial policy aimed at getting fiber everywhere in the country seems impossible — for the moment — cities need to take the lead. Here, New York City has the legal authority to encourage competition. And yet it is choosing not to use it. The city, indeed, has appealed Judge Lobis’s decision.

This refusal to share information connects to a broader lack of public data that plagues telecommunications policy in America--and stops the country from getting the reasonable access we need.

The carriers self-report data every six months to the Federal Communications Commission about where they have deployed service. There is little or no check as to whether that data is accurate, and it often isn’t. Not only that: The FCC’s standards allow the carrier to say that a particular census block is “served” — meaning that block has service by a particular technology, like fiber — as long as one location in that block has access to service. This is called the “one-served, all-served assumption.”

Now, census blocks are the smallest geographic areas that the US Census bureau uses to count things and people. They are anything but uniform; they are not rectangles; they are drawn based on natural topography, railroad lines, and many other invisible factors, and there are more than 11 million of them. They are not necessarily small: In a rural area, a census block could be as large as 8,500 square miles. That one is in Alaska. Many census blocks are 6.4 square acres or less, particularly in urban areas. My particular census block in New York City spans a very densely packed city block, with many buildings on four streets, in which any unit of one of those buildings could be “served” (meaning service was available at some price, however outrageous) and thus trigger identification of the entire census block as being “served”.

We also have zero public information available about the location of poles, conduits, fiber routes, cell locations, and other key infrastructure that is absolutely necessary to assessing gaps and efficiently targeting public funds.

The bottom line: The data we have on “availability” can be generally helpful when you are are trying to understand who is generally providing service in a geographic area. But it won’t represent your experience in your living room. And the absence of conduit and other “infrastructure” information means that neither public nor private actors can figure out what gaps need filling or how to fill them.

So although we believe New Yorkers are underserved, we need more information about where fiber is and where more is needed. We need this to spur competition, to empower the public to demand that its elected officials do their jobs — and to alert the public to frequent problems involving what is politely called “demand-driven” fiber service but looks awfully similar to redlining. We need a whole different approach as a country.

I’m grateful to the clinic for their five years of assistance. Those lawyers did a marvelous job.

And I have to say that the city’s intransigence should be embarrassing to it. Instead of a plan, instead of exercising power and acting coherently, all we’ve got is shuffling and nay-saying.

Getting information regarding access is the key to transforming telecommunications policy in the US—as well as in New York City. We must do better.