New Networks Institute BEFORE THE FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of: Application of AT&T, Inc. ) (“AT&T” or the “Company”) ) and DIRECTV for ) MB Docket No. 14-90 Consent to Assign Licenses or ) Transfer Control of Licensees, ) To: The Secretary: NEW NETWORKS INSTITUTE & TELETRUTH PETITION FOR INVESTIGATION INTO WHETHER AT&T COMMITTED PERJURY IN ITS REPRESENTATIONS TO THE FCC REGARDING ITS DEPLOYMENT OF BROADBAND AND REQUEST TO DELAY ACTION ON THE AT&T-DIRECTV MERGER PENDING INVESTIGATION Compare these three AT&T statements about broadband coverage in the company’s 22 state territory: AT&T-BellSouth Merger 2007 Commitment1 “By December 31, 2007, AT&T/BellSouth will offer broadband Internet access service (i.e., Internet access service at speeds in excess of 200 kbps in at least one direction) to 100 percent of the residential living units in the AT&T/BellSouth in-region territory. 1 https://apps.fcc.gov/edocs_public/attachmatch/FCC-06-189A1.pdf At Appendix F, page 147. 1 New Networks Institute 2 AT&T’s VIP Announcement, October, 2012 “In the 25 percent of AT&T's wireline customer locations where it's currently not economically feasible to build a competitive IP wireline network, the company said it will utilize its expanding 4G LTE wireless network -- as it becomes available…” DirecTV:3 AT&T does not provide high speed service to 15 million locations, 2015 “AT&T intends to expand its plans to build and enhance high-speed broadband service to 15 million customer locations, mostly in rural areas where AT&T does not provide high-speed broadband service today.” MAP of AT&T, Verizon & CenturyLink4 Summary This is an open and shut case. AT&T, Inc. and its affiliates, including the former BellSouth, have been engaged in a pattern of deception and violated Section 1.17 of the Communications Act of 1934: “(1) In any written or oral statement of fact, intentionally provide material factual information that is incorrect or intentionally omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading; and “(2) In any written statement of fact, provide material factual information that is incorrect or omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading without a reasonable basis for believing that any such material factual statement is correct and not misleading.” The AT&T-BellSouth merger required the newly combined companies to have completed deployment to 100% of their territories in 22 states with broadband capability of at least 200 Kbps in one direction by December 31st, 2007. Albeit slow, in 2007, this speed was the 2 http://www.att.com/gen/press-room?pid=23506&cdvn=news&newsarticleid=35661 3 https://support.directv.com/app/answers/detail/a_id/4259/~/directv-and-at%26t-merger-faq 4 http://newnetworks.com/map-bell-companies/ 2 New Networks Institute FCC’s standard definition of High-speed Internet. In February 2008, AT&T filed with the FCC, signing a document (under penalty of perjury) that it had fulfilled this obligation and all other obligations that were part of the merger agreement.5 And yet, compare this AT&T-BellSouth merger commitment with AT&T’s own statements in 2012-2015, including the previous quotes that are related to the “IP Transition” and IP Transition trial tests currently underway, as well as statements made over the course of the last decade or this year by DirecTV as part of the proposed Merger, and we find that AT&T could not have had 100% coverage in 2007. As of 2014, AT&T and DirecTV specifically claim that at least 25% of the AT&T’s 22 state territories did not have broadband available or in another statement that 15 million mostly rural areas do not have broadband. AT&T-BellSouth Merger Commitment “Merger Commitments For the avoidance of doubt, unless otherwise expressly stated to the contrary, all conditions and commitments proposed in this letter are enforceable by the FCC and would apply in the AT&T/BellSouth in- region territory, as defined herein, for a period of forty-two months from the Merger Closing Date and would automatically sunset thereafter. “Promoting Accessibility of Broadband Service 1. By December 31, 2007, AT&T/BellSouth will offer broadband Internet access service (i.e., Internet access service at speeds in excess of 200 kbps in at least one direction) to 100 percent of the residential living units in the AT&T/BellSouth in-region territory. To 5 http://apps.fcc.gov/ecfs/document/view?id=6519839782 7 2 As used herein, the "AT&T/BellSouth in-region territory" means the areas in which an AT&T or BellSouth operating company is the incumbent local exchange carrier, as defined in 47 U.S.C. § 251(h)(1)(A) and (B)(i). "AT&T in-region territory" means the area in which an AT&T operating company is the incumbent local exchange carrier, as defined in 47 U.S.C. § 251(h)(1)(A) and (B)(i), and "BellSouth in-region territory" means the area in which a BellSouth operating company is the incumbent local exchange carrier, as defined in 47 U.S.C. § 251(h)(1)(A) and (B)(i). 3 New Networks Institute meet this commitment, AT&T/BellSouth will offer broadband Internet access services to at least 85 percent of such living units using wireline technologies (the "Wireline Buildout Area"). AT&T/BellSouth will make available broadband Internet access service to the remaining living units using alternative technologies and operating arrangements, including but not limited to satellite and Wi-Max fixed wireless technologies. AT&T/BellSouth further commits that at least 30 percent of the incremental deployment after the Merger Closing Date necessary to achieve the Wireline Buildout Area commitment will be to rural areas or low income living units.”7 As we will show, this commitment was all make believe and AT&T’s own statements will prove this point. And it gets worse. There has been a continuous stream of misrepresentations by AT&T (and its previous incarnations of SBC, BellSouth, et al) over the last two decades, some of which was used to create major public policy changes to the detriment of America’s communications customers. For example, in 2002, SBC (now-AT&T) and BellSouth told the FCC that if the agency blocked competitors from using the networks (via something called “unbundling”) they would deploy fiber-to-the-home and fiber-to-the-curb (fiber optic wires within 500 feet of the location) with speeds of 100 Mbps, starting in 2004. In fact, former FCC Chairman Michael Powell quoted these ‘commitments’ in his statements as one of the primary reasons to close the networks. Yet, they were all vaporware. Instead, AT&T pulled a bait-and-switch and rolled out U-Verse over the existing, legacy, utility, copper wires, and still confuses most people by claiming that this service is ‘fiber-based’, even though the actual fiber networks can be ½ mile from the home; over 2,500 feet away from the location. This petition presents substantial evidence that AT&T failed to comply with its 2007 merger obligation to deploy broadband throughout its territories, and further that it made 4 New Networks Institute material misrepresentations to the Commission that it had complied. AT&T has made subsequent statements to the Commission, including in this proceeding, that are inconsistent with the merger obligation that it says it met. Under these circumstances, immediate investigation is warranted, as well as a delay in any action in this proceeding pending completion of the investigation. ========================================== PETITION FOR INVESTIGATION New Networks Institute (NNI) and Teletruth file this Petition for Investigation against AT&T, Inc, and all of the other AT&T affiliate companies. This Petition is brought in the AT&T-DirecTV merger proceeding, MB Docket No. 14-90, as AT&T made willful and repeated material misrepresentations to the Commission over the last eight years that the company had fulfilled its obligations to have 100% of their 22 state territory with broadband, capable of 200 Kbps in one direction. The same misrepresentation is also true in every FCC proceeding that included any AT&T submissions pertaining to fiber optic or copper infrastructure or services utilizing those facilities, as well as all of the IP transition proceedings. This petition is filed pursuant to Section 1.1 of the Commission’s rules8. 8 §1.1 Proceedings before the Commission. The Commission may on its own motion or petition of any interested party hold such proceedings as it may deem necessary from time to time in connection with the investigation of any matter which it has power to investigate under the law, or for the purpose of obtaining information necessary or helpful in the determination of its policies, the carrying out of its duties or the formulation or amendment of its rules and regulations. For such purposes it may subpoena witnesses and require the production of evidence. Procedures to be followed by the Commission shall, unless specifically prescribed in this part, be such as in the opinion of the Commission will best serve the purposes of such proceedings.(Sec. 403, 48 Stat. 1094; 47 U.S.C. 403). 5 New Networks Institute This is Misrepresentation on a Massive Level, Not Some Trivial Point. AT&T has deceived the FCC, the courts and the public over and over, and it is time for the FCC not only to acknowledge this fact but also to start investigations into the failure of AT&T to disclose critical, material facts.