Maine has scored a court victory, and cable providers a defeat, over the state's law preventing ISPs from "using, disclosing, selling or permitting access to" a customer's personal information without express consent, and restricts the use of non-personal information if a customer opts out.

Related: ISPs Take Aim at Maine Law 

A Maine judge denied ISPs' motion that the court rule the state statute preempted by federal action and unconstitutional to boot, and instead granted the state's cross motion that the statute was not preempted. 

The ISP challenge will now have to go to trial. 

The Maine statute also holds that an ISP can't refuse to serve a customer or charge a penalty for not allowing use of their information, or offer a discount to induce them to give up information. 

ACA Connects, NCTA-The Internet & Television Association, CTIA, the wireless association; and USTelecom, together representing the vast majority of all wired and wireless ISPs, challenged the law in a Maine U.S. District Court and sought an immediate judgement based on the pleadings. 

The bill requires opt-in permission for what ISPs say is not sensitive personal information, an opt-out option for collection of data that is not personal at all, and preventing them from offering consumer-benefiting discounts or rewards. The ISPs argue that such limitations are impermissible restrictions on how they communicate with their customers that are not “remotely tailored” to protecting consumer privacy and are thus unconstitutional restrictions on speech. 

ISPs argued that the state law was preempted by the congressional resolution invalidating privacy regulations adopted by the FCC under Democratic chair Tom Wheeler (so-called conflict preemption). They also said the law conflicted with the FCC's Restoring Internet Freedom Order because the FCC said the way to enforce privacy is a combination of ISP disclosures and Federal Trade Commission enforcement of those disclosures while the state was adopting prescriptive rules. 

Maine Attorney General Aaron Frey, the defendant in the suit, countered that the state law "regulates a space Congress explicitly left open, and any conflict is a figment of Plaintiffs’ imaginative pleading."  

ISPs also argued that it was unconstitutionally vague due to lack of clarity about its geographic scope, so unclear as to whom the law would apply. For example, out of state residents using their mobile phones in the state. They also said it was void for vagueness due to the "nebulousness" of the definition of personal information. 

Judge Lance Walker said that since Congress' resolution was simply the nullification of the FCC's ISP privacy order, it created "no overarching federal policy, and enacts no scheme with which the Maine Privacy Statute can conflict." 

As to the unconstitutionally vague personal information definition. "Plaintiffs’ Motion simply fails to clarify how an ill-defined opt-in and opt-out regime would inhibit any protected First Amendment activity," said Walker, "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 ...Because Plaintiffs’ members are businesses accustomed to regulation, and the Privacy Statute does not appear to carry any criminal penalty, the vagueness review is less searching in this case," said Walker. 

As to the issue of geography, the judge said that as he saw it, the law "applies to a clearly-defined set of businesses when providing services to a clearly-defined set of customers; the law regulates ISPs operating in Maine serving customers that are physically located in Maine, and physically billed for those services in Maine." 

ISPs will still have a chance to make the rest of their case at trial. 

“While we disagree with the court's initial decision, the glaring deficiencies with the Maine privacy statute remain," said NCTA in a statement. "Consumers expect – and deserve – the same meaningful privacy protections across the internet. Broadband providers are united in support of a comprehensive national privacy framework that puts consumers first and applies to all companies, including all those operating online, in a uniform and technology-neutral manner.”

Windstream has announced the sale of Web 1.0-era consumer internet services business Earthlink to Dallas-based private equity firm Trive Capital for $330 million.

The deal comes less than two years after the Little Rock, Arkansas-based Windstream’s $1.1 billion all-stock purchase of Earthlink, the ISP founded back in 1994 as an alternative to America Online, Prodigy and CompuServe.

The legacy EarthLink consumer internet business offers internet access, online back-up, managed web design, web hosting and various email services to more than 600,000 customers throughout the U.S.

“This transaction enables us to divest a non-core segment and focus exclusively on our two largest business units. In addition, it improves our credit profile and metrics in 2019 and beyond,” said Tony Thomas, president and CEO of Windstream.

As RCR Wireless noted, when Windstream purchased Earthlink in February 1994, the telecom touted the combined network’s reach of 145,000 route-miles of fiber, Earthlink’s early launch of SD-WAN and expected annual cost synergies of $125 million.

Speaking to Bloomberg, however, Windstream spokesperson Chris King added, “People paid $5 to $10 a month for email. It was not a strategic asset for us.”

For Windstream, the divesture of Earthlink follows the $60.5 million sale of dark fiber assets in Minnesota and Nebraska to Minnesota-based telecom provider Arvig Enterprises last month.

“We are excited to partner with and support the EarthLink management team in continuing to provide great products and services available to millions of households in the United States,” said Trive Managing Partner, Conner Searcy. “We intend to provide additional resources and access to deep industry relationships to help grow the brand in the coming years.”

While the strategy doesn’t necessarily result in universally happy customers, employing broadband usage caps does appear to be an effective tool for operators interested in controlling the expansion of network usage.

According to data released by OpenVault, second-quarter broadband usage by customers on plans with usage-based pricing averaged 215.6 gigabytes per household, 12.2% less than the 241.9 GB per home used by customers without capped services.

Related: WOW!: We’ll Stay Cap Free

Homes with usage-based pricing also experienced slower growth of network usage—27.3% year over year vs. 36.6% for non-capped homes.

Notable: 3.1% of customers for non-capped services exceeded the 1 terabyte monthly threshold, on average, vs. just 2% for services with caps. A number of operators in the cable industry have adopted a 1 TB usage limit.

Overall, OpenVault said average U.S. broadband usage growth in Q2 grew by 31.3% year over year to 226.4 GB.

OpenVault collects, manages and analyzes high-speed data usage from network operators.

The top 14 residential broadband providers added 455,000 customers in the second quarter, more than double the 230,000 added in the same period of 2017, according to Leichtman Research Group

Big gainers included Comcast, which added 260,000 high-speed internet users in Q2 compared to just 175,000 last year. Overall, the top seven cable operators added 585,726 users in the second quarter up from 461,997 in the three-month period ending June 30, 2017.

Related: Pay TV Subscriber Losses Dropped to About 415,000 in Q2 as vMVPDs Continue to Grow

The top seven telco operators nearly halved their losses, with their ranks reducing by 130,453 compared to 233,260 in the comparable year-ago Q2. Frontier Communications, which lost 101,000 HSI users in the second quarter last year, lost only 32,000 in the most recent quarter.

“The broadband industry added nearly twice as many subscribers in 2Q 2018 as in last year’s second quarter,” said Bruce Leichtman, president and principal analyst for Leichtman Research Group, Inc. “This quarter marked the first year-to-year quarterly broadband increase since 2Q 2016.”

Overall, it was the first time top ISPs grew subscribers year over since the second quarter of last year.

Collectively, the top 14 ISPs control 95% of the U.S. residential HSI market. And the top seven cable companies now control 64.7% of that market.

The positive subscriber numbers will undoubtedly help the cable industry on Wall Street, with investors having become skittish regarding the prospects of HSI market saturation. 

Comcast has announced that its subsidized ISP program Internet Essentials has now been provided to six million low-income Americans.

In addition to the benchmark, the cable company also said it will expand the program to nearly one million low-income military veterans.

Comcast said it has connected two million users to Internet Essentials just in the last year—its largest annual increase to date.

Related: Comcast Connects on New Internet Essentials Campaign

“This program has had an enormous impact on millions of families and children who now have high-speed Internet at home, many for the first time in their lives,” said David L. Cohen, senior executive VP and chief diversity officer for Comcast, in a statement. “We’re excited to extend that same opportunity to more than one million, low-income veterans. Veterans have stood up for our country, now it’s time for us to stand up for them by providing access to life-changing digital tools and resources.”

Comcast also announced that U.S. Olympic Gold Medalists Jocelyne Lamoureux-Davidson and Monique Lamoureux-Morando will join Cohen on a multi-city tour to raise awareness for the Internet Essentials program.

Internet surfers across the country were socked with a massive service outage beginning around noon on Friday, after two fiber lines belonging to a third party vendor to Comcast were cut in Manhattan, leaving customers from several ISPs without access.

The service problems appear to gave started around 12:30 p.m., and seemed to be initially confined to Northeast ISPs, but according to social media complaints, quickly spread as far west as California.

Comcast’s customer care operation tweeted later that one of its large backbone network partners experienced a fiber cut. Because that line also served as a backbone to several other service providers, they too were expected to experience intermittent outages.

[embed]https://twitter.com/comcastcares/status/1012767042158510080[/embed]

“We identified two, separate and unrelated fiber cuts to our network backbone providers" Comcast said in a statement. "Our engineers worked to address the issue immediately and services are now being restored to business and residential internet, video and voice customers. We again apologize to anyone who was impacted.”

Charter spokesman Justin Venech said he was unaware of any large service disruptions for the carrier, but said it was aware of the Comcast problems.

Newsday reporter Joan Gralla tweeted that one of the fiber lines that were cut serviced New York City to Chicago, the other between Ashburn and South Carolina.

[embed]https://twitter.com/JoanGralla/status/1012761031922409473[/embed]

According to website Downdetector.com, which tracks service outages via social media, the problems started with Comcast but quickly spread to other ISPs. 

[embed]https://twitter.com/crysterious/status/1012745763271598081[/embed][embed]https://twitter.com/CrabLover7/status/1012740261405954049[/embed]

Fiber-fed buildouts underway by AT&T and Google represent competitive threats to cable’s broadband business, but additional pressure is starting to be applied by a relatively new player that is setting its sights on multiple-dwelling units and apartment buildings in several U.S. markets.

That company, called GigaMonster, is in full attack mode, with a plan to expand in Denver, this spring, following up on its initial forays into cities such as Atlanta; Charlotte, N.C.; Houston and Dallas, Texas; Los Angeles; Memphis and Nashville, Tenn.; Phoenix, Ariz.; and San Francisco.

GigaMonster has been quietly constructing fiber networks in those cities, but the Denver launch announcement “is the coming-out party for our company,” Bill Dodd, GigaMonster’s CEO, said.

The company’s game plan is to connect MDUs to its metro fiber rings (via a mix of its own dark fiber and fiber acquired from others) with dedicated capacity starting at 10 Gigabits per second that can be ramped up from there.

“All we have to do is change the optics,” Dodd said. “We build a massive freeway of bandwidth to each community that we serve.”

Depending on the arrangement, GigaMonster inks retail deals in which it’s the exclusive provider or competing with an incumbent, while others are bulk deals in which GigaMonster sells service to the community partner and the service is built into the residents’ rent.

About 99% of GigaMonster’s deployments are in the multifamily high-rise and mid-rise category, with a small number of deployments in gated and private-land areas that aren’t saddled with rights-of-way issues. In Denver, Dodd said, GigaMonster has some deals at “various stages in negotiation.” Sky House Developments, which operates in several markets, has already signed on with GigaMonster for its Denver expansion. GigaMonster hasn’t set pricing for Denver yet, but in other markets its service ranges from 30 Megabits per second to 1 Gbps for $39 to $109 per month.

GigaMonster’s emergence will be met with some resistance from incumbent providers. Comcast, the primary MSO in Denver, announced last November that Xfinity Communities, its service tailored for MDUs launched in 2014, serves more than 1 million multi-family residences in 37 states.

That program delivers broadband, X1 video service, WiFi, and home security and automation services using fiber-to-the-building and fiber-to-the-unit architectures. Charter Communications, meanwhile, is applying more resources toward the MDU segment via its recently rebranded Spectrum Community Solutions service.

Early on, GigaMonster’s offering centers on broadband; Dodd said the company will soon announce some video partnerships, but did not elaborate on who might be involved.

In the meantime, GigaMonster has been focused on delivering a solid connection to over-the-top (OTT) services with “direct routing” to the servers of some of those providers.

“We have dozens of peering relationships; we’re working on caching relationships,” Dodd said.

Per the company’s Denver launch announcement, it has peering deals with Netflix, YouTube and Amazon.

Founded in 2013, San Francisco-based GigaMonster has about 200 employees.