Home » Public Policy & Gov’t » Recent Articles:

Spectrum Continues to Yank Semi-Local TV Stations from Lineups Across the Country

Gone from Spectrum lineups across northern New England.

Many Spectrum cable television customers across the country have seen their broadcast TV lineups shrink as the company removes “duplicate” and “semi-local” stations, even as it hikes the cost of its Broadcast TV surcharge.

Southern Maine customers are the latest to be affected with the sudden removal of Boston’s ABC affiliate, WCVB-TV on June 5 — the last Boston area station on the television lineup.

“York (Maine) is part of the Portland TV market and we carry the designated in-market ABC affiliate — WMTW,” responded Andrew Russell, Spectrum’s director of communications for the northeast division. “We no longer carry the out-of-market ABC affiliate.”

Viewers trying to watch WCVB in southern Maine saw a screen stating “programming on this network is no longer available,” instead of local news and traffic information important for a number of southern Maine residents that commute down I-95 into the Boston area for work.

“I am fit to be tied,” York Beach resident Ken Morrison told the Bangor Daily News. “And I’m not alone. A lot of people are very upset about it.”

Subscribers in distant suburbs, exurban or rural areas between two major cities often had access (often for decades) to several stations in adjacent television markets. Each subscriber could choose the station serving the city that was most relevant in their lives. Prior to Spectrum and Time Warner Cable, cable systems in these areas were often locally owned and operated by smaller companies. These operators were responsive to the needs of their customers and distant over-the-air stations were often a part of the cable lineup from the 1970s forward. But as consolidation in cable industry continues, local lineups are now usually determined in a corporate office hundreds of miles away.

This Binghamton, N.Y. PBS station was thrown off the Spectrum lineup across several counties in the Southern Tier.

That could explain why Spectrum subscribers living in Tompkins and Cortland counties in New York suddenly lost WSKG-TV, the PBS affiliate from nearby Binghamton in favor of Syracuse-based WCNY-TV. Local residents do not consider themselves a part of Syracuse. Most consider themselves residents of the Southern Tier, which stretches along the New York-Pennsylvania border and includes Binghamton, Corning, Elmira, Hornell, Olean, Salamanca, Dunkirk, Jamestown, and Vestal. Residents will tell you they have more in common with their neighbors in northern Pennsylvania than Syracuse, but Spectrum apparently knew better and announced viewers in the two counties would now have to be satisfied watching a PBS station broadcasting to an audience at least 50 miles away.

Spectrum’s decision in this case does not appear to be a financial one.

“A public media organization like us gets no money from Charter to air our programming,” said WSKG’s management. “Our programming is provided to them for free, by law.”

WSKG believes what is actually behind Spectrum’s decision to change the lineup is the regionalization of their cable system head-ends, from which television programming is managed. Programming seen on Spectrum subscribers’ TV screens across much of the Southern Tier and part of the Finger Lakes region is now managed from Charter offices in Syracuse.

“In this case, because our tower is more than 70 miles from Syracuse’s head-end, where the signal originates, there’s a line of demarcation where they don’t have to carry our signal anymore,” said WSKG station president and chief executive, Greg Catlin. “In this case, that cut-off is Cortland and Tompkins County. They have every right to be doing what they’re doing. That doesn’t mean they have to do it.”

Subscribers were exceptionally unhappy to lose their Binghamton PBS station, and the station received a significant number of listener and viewer contributions from an area that is now cut off. The Southern Tier, like Pennsylvania to the south, is notorious for poor signals due to mountainous terrain, which limits television and FM radio reception. Verizon offers no competing television service in this part of New York, leaving residents with satellite television as the only possible alternative.

WPTZ in Plattsburgh is off Spectrum lineups in several parts of northern New York.

The first week of June was a significant date on the calendar for many residents in Spectrum’s northeastern service areas. In northern New York, Spectrum customers were notified they were losing WPTZ, the NBC affiliate in Plattsburgh, in favor of Syracuse’s NBC station WSTM-TV. That Syracuse station now produces news and current affairs programming for three Syracuse stations – WSTM itself, WTVH (CBS) and WSTQ (CW) under the “CNY Central” brand. But subscribers who lost WPTZ do not consider themselves a part of central New York and would more likely choose to visit Vermont than Syracuse.

In other parts of New England, Spectrum customers also lost WMUR-TV — the New Hampshire station with one of the best regarded news operations in northern New England, in favor of WVNY in Burlington, Vt. Newscasts on WVNY are produced by its sister station WFFF-TV. WMUR has a larger American audience than WVNY. In fact, this Vermont ABC affiliate has far more viewers in southern Québec and Montréal than it does in its own home market.

Back in Maine, the local congressional delegation is turning up the heat on Spectrum, so far to no avail. State Reps. Lydia Blume and Patricia Hymanson of York have written a letter to Spectrum demanding the company reinstate WCVB or reduce the cable television bills of affected customers to compensate. So far, Spectrum has done neither.

<

div>

Morrison told the Bangor newspaper Channel 5 “is the channel of the household. We watch it every day, multiple times a day,” he said. “Many people in the York area commute to Boston. The traffic reports on Channel 5 are essential.” WCVB was also the last Boston channel that could be accessed through Spectrum. Boston channels 4 and 7 have already been discontinued.

WMUR in Manchester, N.H. is gone for many New England Spectrum subscribers.

After contacting town officials, who hold the franchise agreement with Spectrum until it expires in 2022, Morrison learned a powerful lesson about deregulation. When a cable company lacks competition or regulation, it can do pretty much what it wants.

York town manager Steve Burns says his hands are tied, noting that Spectrum’s franchise agreement is written to automatically renew (for their convenience) unless the town wants to attempt to renegotiate.

“But negotiate how?” Burns asked. “Comcast is not going to come in and compete with Spectrum. They divvy up the territory. And there’s no one else.”

Spectrum has also made sure that Burns’ phone is among those that rings first when a customer has a complaint, noting Spectrum prints his name and number on each subscriber’s bill, listing him as the “franchise administrator” for the town.

“But it doesn’t mean anything,” Burns told the newspaper. “We have no authority. They decide the programming and the fees. I don’t think we’re important to them.”

So far, all Spectrum has been willing to do is mail out a channel request form to residents who complain, but there is scant evidence the cable company will restore the Boston station, because it has refused other similar requests from subscribers across the country.

For customers in the Berkshires in western Massachusetts, they know only too well how responsive Spectrum is to channel requests. When Spectrum took over Time Warner Cable, local subscribers lost access to several stations (most recently WCVB as well), forcing some to watch local news from stations either in Albany, N.Y., or Springfield, Mass. At the same time, customers were notified Spectrum was increasing its Broadcast TV surcharge, for fewer channels.

Spectrum did not offer any significant response to U.S. Sens. Ed Markey and Elizabeth Warren, or Congressman Richard Neal when they contacted Charter Communications to complain. In Maine, it is the same story for Sens. Angus King and Susan Collins, as well as Rep. Chellie Pingree.

21st Century Fox Accepts Disney’s Sweetened $71.3 Billion Offer, Outbidding Comcast

21st Century Fox has accepted an improved $71.3 billion bid from Walt Disney Co. to acquire its entertainment division, outbidding Comcast’s all-cash $65 billion bid for Fox’s content companies.

Rupert Murdoch and shareholders will walk away from the majority of Fox’s media empire well compensated from a short-term bidding war between Disney and Comcast, which has raised the acquisition price substantially above Disney’s original offer in December.

Disney CEO Bob Iger’s current offer is being seen as “very aggressive” by Wall Street and designed to deter Comcast from responding with a better bid of its own. Comcast was already planning to load up on debt to finance the deal, and was unwilling to include shares of its stock as part of the transaction. Disney itself is putting a huge amount of money on the line to acquire Fox. After including Fox’s current debt load, Disney’s latest offer means the total transaction is expected to exceed $85 billion.

Disney’s decision to postpone an important meeting to discuss Comcast’s bid could be a signal Comcast is preparing a counteroffer.

Whatever company ultimately wins control of Fox will own and control the majority, but not all of Fox’s media assets.

21st Century Fox Assets to be Acquired by Disney (or Comcast if it returns with an even higher bid):

Fox Entertainment Group:

20th Century Fox
Fox Searchlight Pictures
Blue Sky Studios
Fox Star Studios
Fox Networks Group
Fox Sports Networks

FX Cable Networks
National Geographic Partners (Nat Geo suite of cable networks and National Geographic Films) (73%)
Star TV (Asian satellite TV service)
Hulu (United States) (Fox’s 30% stake, giving either buyer 60% ownership and control of the service)
Sky (39.14%) (United Kingdom satellite TV service and content producer)
Endemol Shine Group (50%) (Producer of reality TV shows including Big BrotherMasterChefThe Biggest Loser and Hunted.)

21st Century Fox Assets to Be Spun Off to “New Fox” — an independent company owned by current 21st Century Fox shareholders

Fox Broadcasting Company – The Fox Television Network
Fox Television Stations Group (28 local TV stations)
Fox Television Station Productions
Movies! (a digital subchannel network run as a joint venture with Weigel Broadcasting and seen on around 75 local stations around the country)
MyNetworkTV
Fox News Channel and Fox Business Network
Fox Sports:

Big Ten Network (51% owned in joint venture with Big Ten Conference)
Fox Deportes
Fox Sports 1
Fox Sports 2
Fox Soccer Plus
Fox College Sports
Fox Sports International

The 20th Century Fox studio lot (to be leased by Disney)

A battle is still raging for control of Sky, the United Kingdom’s biggest satellite TV provider. Fox originally sought to acquire the portion of Sky it did not already own, but was derailed by a sweeping 2011 phone hacking scandal after news emerged Murdoch-employed reporters illegally hacked into the private voicemail boxes of celebrities to help fuel new story ideas and substantiate personal scandals. When it was revealed reporters listened to the messages of a murdered schoolgirl, allowing her parents to mistakenly believe she was still alive, the scandal went viral and prompted both criminal and regulatory probes of Murdoch’s operations in the United Kingdom. It also led to the closure of the country’s largest tabloid newspaper, the Murdoch-owned News of the World. The scandal has been widely blamed for Murdoch’s inability to convince regulators to approve his bid for full ownership of Sky Television. Murdoch is now cutting his losses and selling the entire operation to either Disney or Comcast.

Verizon, AT&T, Sprint, and T-Mobile Have Been Selling Your Location to Just About Anyone

Go ahead, enjoy a free trial and locate (within 100 yards) your ex-boyfriend or girlfriend, husband, wife, or friends. This online demo had few security checks to keep unauthorized users out, despite claims consent was required. (Image courtesy of: Krebs on Security)

A company best known for providing phone service to prisoners and monitoring inmate locations has sold access to the whereabouts of almost every powered-on cellphone in the country without verifying a court order, thanks to a lucrative partnership with America’s top four cell phone companies.

The service, provided by Securus, has proved a handy tool for law enforcement agencies nationwide, allowing one former sheriff of Mississippi County, Mo., to track the whereabouts of a judge and members of the State Highway Patrol, all without their consent.

The New York Times reported in May that despite repeated assurances from cell phone companies that location data sold to third parties would not include personally identifiable information, it now appears in fact, it often does, and not just information about a particular company’s own customers.

Securus’ location service has been available since at least 2013, although some claim the service has been active for much longer than that, and after recent attention from Congress, Verizon, AT&T, and Sprint have announced they will suspend the sale of location data to most third parties as soon as contract termination notices can be sent.

The industry’s commitments to customer privacy appear to be tissue thin, based on the confidential contracts companies like Verizon and AT&T sign with third-party data aggregators, who in turn resell each provider’s location service to an even broader range of companies. Sen. Ron Wyden (D-Ore.) called the contracts “the legal equivalent of a pinky promise” in a letter sent to the Federal Communications Commission.

Verizon, T-Mobile, AT&T, and Sprint all have contracts with two of the country’s largest resellers of location data – LocationSmart and Zumigo. The contracts allow the two firms to pull cellphone users’ locations in real time and sell that information to other companies, including Securus. The contracts claim to need users’ consent before their location information can be revealed, which is either done in an app directly requesting location data or in a thicket of fine print terms and conditions most consumers never read. There is scant evidence cell phone companies independently audit consent records, which means a company or app author could claim blanket consent.

Securus never had a contact with many of the people it tracked — often those suspected of a crime or law enforcement officers. Securus operates its service under provisions permitting law enforcement to access location data without the consent of those being tracked, as long as the law enforcement agency attests to the legality of its request. Laws requiring court orders to track cellphone users vary considerably in different states. Some require a judge’s signature on a court order, others demand a notarized statement from a law enforcement official, while others require no independent review at all.

Cell phone companies may have a loophole to escape legal culpability for revealing private personal location information to unauthorized third parties. Privacy laws have never offered strong privacy protections to consumers for telecommunications services. In March 2017, the Republican majority in Congress stripped what privacy protections did exist during the Obama Administration in a mostly party-line vote condemned by Democrats. After the rules were repealed, mobile providers can track and share people’s browsing and app activity without permission. Several Democrats warned the move would lead to an eventual scandal when providers were caught collecting and selling sensitive personal information without customer consent.

As long as they are following their own voluntary privacy policies, carriers “are largely free to do what they want with the information they obtain, including location information, as long as it’s unrelated to a phone call,” Albert Gidari, the consulting director of privacy at the Stanford Center for Internet and Society and a former technology and telecommunications lawyer told the New York Times. If a cellphone is powered on, constantly updated location information accurate within a few hundred feet is available for sale.

Because cell phone companies work with third-party aggregators, they can claim any privacy violations could be the result of unauthorized or inappropriate use of their location tools. But finding which company ultimately violated a consumers’ privacy requires investigative work because services like LocationSmart also sell services to other aggregators, who in turn sell services to a myriad of companies. That is what appears to have happened with Securus, who accessed location services through a mobile marketing company called 3Cinteractive, which in turn has a contract with LocationSmart. That means a provider can claim at least three layers of possible third-party liability, because requests moved through several hands:

Example: Law enforcement agency request -> Securus -> 3Cinteractive -> LocationSmart -> Verizon

Although law enforcement agencies are supposed to upload legal documents proving informed consent laws do not apply to a particular request, it appears the validity of those documents was not independently verified.

“Securus is neither a judge nor a district attorney, and the responsibility of ensuring the legal adequacy of supporting documentation lies with our law enforcement customers and their counsel,” a Securus spokesman said in a statement. Securus offers services only to law enforcement and corrections facilities, and not all officials at a given location have access to the system, the spokesman added.

But those that did could abuse the system with few consequences. In fact, a security hole left open for a year by LocationSmart appears to have let almost anyone use the service to find friends, family, or anyone else, thanks to a helpful free demo for prospective clients revealed by Robert Xiao, a security researcher at Carnegie Mellon University:

LocationSmart’s demo is a free service (Editor’s Note: the demo has since been locked down) that allows anyone to see the approximate location of their own mobile phone, just by entering their name, email address and phone number into a form on the site. LocationSmart then texts the phone number supplied by the user and requests permission to ping that device’s nearest cellular network tower.

Once that consent is obtained, LocationSmart texts the subscriber their approximate longitude and latitude, plotting the coordinates on a Google Street View map. [It also potentially collects and stores a great deal of technical data about your mobile device. For example, according to their privacy policy that information “may include, but is not limited to, device latitude/longitude, accuracy, heading, speed, and altitude, cell tower, Wi-Fi access point, or IP address information”].

But according to Xiao, a PhD candidate at CMU’s Human-Computer Interaction Institute, this same service failed to perform basic checks to prevent anonymous and unauthorized queries. Translation: Anyone with a modicum of knowledge about how Web sites work could abuse the LocationSmart demo site to figure out how to conduct mobile number location lookups at will, all without ever having to supply a password or other credentials.

“I stumbled upon this almost by accident, and it wasn’t terribly hard to do,” Xiao said. “This is something anyone could discover with minimal effort. And the gist of it is I can track most peoples’ cell phone without their consent.”

Obtaining customer consent to share location details appears to not always be a priority of the location data resellers. For them, a lucrative business depends on easy access to location information that can be sold for targeted marketing campaigns (such as texting a coupon offer when entering a store or sending a special offer if you appear to be visiting a competitor’s store), tracking packages, service calls, or deliveries (such as tracking the cable repair technician, the location of your pizza, or where the parcel service driver is with a package you ordered), or allowing your bank to flag a suspicious credit card transaction when they discover your cellphone is nowhere near the store where the purchase just occurred.

Wyden

The personal risks of unauthorized access are too numerous to count, starting with former boyfriends or girlfriends cyberstalking one’s live location, criminals tracking a target, and law enforcement officials violating your rights.

The revelations in the New York Times, published on May 10, have attracted the sudden attention from America’s largest cell phone companies this week because of Sen. Wyden’s letter informing them they are under scrutiny. No cell phone company wants to endure the media spotlight Facebook has been under since revelations it exposed the personal data of as many as 87 million users without their consent. The carriers, except for T-Mobile, have announced a lock-down.

Verizon: Verizon Communications pledged to stop selling individual customer locations to data brokers, and will wind down contracts with LocationSmart and Zumigo, a competing data aggregator. “We will not enter into new location aggregation arrangements unless and until we are comfortable that we can adequately protect our customers’ location data,” Verizon privacy chief Karen Zacharia wrote in a June 15 letter to Wyden. Verizon did not explain why it took at least two years for the lock-down to begin.

AT&T: Said it “will be ending our work with aggregators for these services as soon as practical in a way that preserves important, potential lifesaving services like emergency roadside assistance.”

Sprint: “Suspended all services with LocationSmart” last month and “is beginning the process of terminating its current contracts with data aggregators to whom we provide location data.” A spokeswoman said that effort “will take some time in order to unwind services to consumers, such as roadside assistance and fraud prevention services.”

T-Mobile: Stopped short of terminating agreements, T-Mobile executives told Wyden it “started one of our periodic reviews several months ago and selected a third-party to assess this program.”

Securus: Securus spokesman Mark Southland said in a statement that the company adheres to its contract, adding that cutting off law enforcement access to location tools “will hurt public safety and put Americans at risk.”

Read the full letters from America’s top-four mobile companies:

Telcos Pile Up Debt From Mergers & Acquisitions While Stalling Fiber Upgrades

Spending priorities: mergers & acquisitions, not upgrades.

Since 2012, two of the country’s largest phone companies spent enough money — $281.4 billion — to wire at least three-quarters of the  nation with fiber-to-the-home service and deliver vastly improved rural internet access to the rest of the country. Instead of doing that, AT&T and Verizon used the money to buy their competitors and content creators including AOL and Yahoo.

A 2017 Deloitte Consulting analysis estimates the United States will need between $130 and $150 billion in investment over the next 5–7 years to upgrade at least 75% of homes and businesses to fiber to the home service, with the remaining 25% serviced by technologies including 5G that are capable of delivering broadband speeds greater than the federal minimum standard of 25/3 Mbps.

AT&T could almost deliver the country a major broadband upgrade all by itself, having spent $138 billion on mergers and acquisitions in the past six years. Verizon could have easily handled the entire cost, but instead spent its $143.4 billion on business deals, including $130 billion to buy out former Verizon Wireless partner Vodafone. Among independent phone companies, things look equally bad. Frontier Communications is saddled with so much debt after acquiring former AT&T customers in Connecticut and Verizon customers in more than a dozen states, it has been forced to suspend its shareholder dividend and has been only able to make token investments in network upgrades for its mostly copper wire infrastructure in its original “legacy” service areas and a mixture of copper and fiber in acquired service areas. Both CenturyLink and Windstream have refocused many of their business activities on the commercial services marketplace, including the sale of hosting, business IT services, and cloud server networks.

More recently, both AT&T and Verizon have raced into content company acquisitions, buying up AOL, Yahoo, and Time Warner to offer their respective customers additional content. The phone companies are diversifying their business interests away from simply offering phone lines and internet access. At the same time, many of these acquisitions are depleting resources that could be spent on critical network upgrades.

The article in Light Reading claims the telecom industry’s traditional financial model of borrowing money to build networks and upgrade others is broken, because telecom companies now prefer to spend money acquiring other companies instead. Although AT&T has, in recent years, been more aggressive than Verizon in deploying fiber to home service, both companies have resisted committing large amounts of capital to a territory-wide fiber buildout, preferring to spend smaller sums to incrementally upgrade their networks in selected areas over the next decade. But the merger and acquisition teams at both companies are far less cautious, given the go ahead to pay handsomely for companies that often have little to do with providing telephone or internet service.

Light Reading reports AT&T’s debt climbed from $59 billion in 2010 to $126 billion at the end of 2017. Verizon’s debt increased from $45 billion to $114 billion. But those acquisitions have done little to attract new customers. Both companies’ operating cash flows have barely budged — $39 billion annually at AT&T (up from $35 billion) and Verizon’s actually declined from $33 billion in 2010 to $25 billion in 2017.

Mergers and Acquisitions (2011-2018)

AT&T

  • 2012: AT&T buys $1.93 billion worth of spectrum from Qualcomm.
  • 2013: AT&T buys Leap Wireless (Cricket) for $1.2 billion.
  • 2014: AT&T pays $49 billion for the DirectTV, issuing $17.5 billion in debt in April.
  • 2015: AT&T buys out assets from bankrupt Mexican wireless business of NII Holdings for around $1.875 billion.
  • 2018: AT&T pays $207 million to acquire FiberTower.
  • 2018: AT&T is cleared to merge with Time Warner in a deal valued at more than $84 billion.

Verizon

  • 2011: Verizon acquires Terremark for $1.4 billion.
  • 2014: Verizon buys out Vodafone’s 45 percent stake in Verizon Wireless, valued at $130 billion, with a mixture of stock and debt.
  • 2015: Verizon buys AOL for a deal valued around $4.4 billion.
  • 2017: Verizon acquires Yahoo Internet assets for $4.5 billion.
  • 2017: Verizon buys spectrum holder Straight Path Communications for $3.1 billion roughly double rival AT&T’s offer, to build up 5G spectrum and footprint.

The more debt (and debt payments) that pile up at the two companies, the less money will be available to spend on fiber upgrades. In fact, there is evidence these companies are hoping to further cut costs in their core landline network operations. Some regulators have noticed. Verizon was forced to make a deal with New York regulators requiring the company to spend millions replacing failing copper-based facilities and upgrade them to fiber and remove or replace tens of thousands of deteriorated utility poles. Verizon faced similar action in Pennsylvania.

AT&T has spent millions lobbying the federal government to permanently decommission rural America’s landline network and replace it with a wireless alternative, while also working to replace the current regulated telephone network with deregulated alternatives like internet and Voice over IP phone service.

Wall Street analysts have occasionally questioned or at least expressed surprise over some of the phone companies’ odd acquisitions:

  • Verizon acquired Terremark to beef up its cloud-based and server-hosting businesses. But shortly after acquiring the company, Verizon began replacing top management, sometimes repeatedly, and ultimately divested itself of its data center portfolio, including Terremark, just five years later.
  • AT&T bought DirecTV to help it reduce wholesale TV programming expenses for its U-verse TV subscribers. But DirecTV has lost more than one million satellite TV customers since AT&T acquired it in 2014, despite new marketing efforts to convince would-be U-verse TV customers to choose DirecTV instead.
  • Verizon saw value in web brands that were major players more than 18 years ago but are mostly afterthoughts today. The company spent almost $9 billion to acquire Yahoo and AOL, and their low quality content portfolios, which rely heavily on clickbait headlines, advertiser-sponsored content, and articles designed to maximize mouse clicks to boost the number of ads you see.

“The telcos are trying to diversify into content when they should instead be focused on their core business — building networks and charging for value-added technology,” said Scott Raynovich, founder and principal analyst at Futuriom. “It’s clear they see content as part of the value-add but customers so far don’t seem to be reacting that way. It’s clear they are allergic to paying higher prices for bundled content.”

AT&T and Verizon’s customers are not clamoring for more content deals. When surveyed, most want better internet service at more affordable prices.

N.Y. Gives Charter 2 Weeks to Come to Terms or Face Revocation of Charter-TWC Merger

The New York Public Service Commission has notified Charter Communications it won’t be the victim of an offer that promises one thing and delivers something less, giving the company 14 days to fully accept the terms of its Time Warner Cable/Charter merger approval or face the possibility of having the merger canceled, potentially throwing Charter’s business plans into chaos.

In a move any aggrieved cable customer would appreciate, Charter’s lawyers gave the PSC a deal that looked good on the surface, only to be eroded away in the fine print. In a May 2018 response to the Commission’s “show cause” order, threatening to severely fine the cable company for breaking its commitments to New York State, the cable company effectively responded it wasn’t their fault if the Commission missed the fact the company did not actually agree to everything the state thought it did, and was in full compliance of what it unilaterally agreed to do.

The hubris of the state’s largest cable operator did not go down well in Albany, to say the least. But first some background:

Charter is coming under fire in New York State for failing to meet its obligations to extend service in a timely way to 145,000 New York homes and businesses not part of Spectrum’s service area and also lack access to broadband service. Today the Commission, in a separate action, fined Charter $2 million, to be drawn from a line of credit previously set aside by the cable company, for failing to meet its original broadband buildout targets and failing to remedy its past poor performance.

Charter’s lawyers last month protested their innocence, claiming the company was not out of compliance with its agreement — in fact it was ahead of schedule.

Both things cannot be true, so who is being honest and who is trading in “alternative facts?”

To find out, one has to turn back the clock to 2016. On January 19, Charter’s attorneys sent an acceptance letter to the Commission in response to the regulator’s offer to approve the acquisition of Time Warner Cable if Charter agreed to a series of pro-consumer benefits designed to allow New York customers to share in the lucrative deal.

Charter agreed to dramatically increase Standard internet speeds for its New York customers, first to 100 Mbps by the end of 2018 and again to 300 Mbps by the end of 2019. Charter met its first commitment ahead of schedule and is on track to again increase speeds for New York residents before the end of next year.

The company also agreed to temporarily retain Time Warner Cable’s $14.99 Everyday Low Price Internet program. Although that option has since expired for new customers, existing customers can keep the package until at least next year. But regulators note Charter has frequently made it difficult for New York customers to sign up for the program. Stop the Cap! has documented multiple instances of customers being told the plan was unavailable, or representatives have confused it with Spectrum Internet Assist, a similar budget-priced internet package for those that meet certain income and benefits qualifications.

But Charter’s agreement to expand its service to unserved areas of New York is where most of the current conflict arises. Stop the Cap! strongly recommended in our testimony to the PSC that rural broadband expansion be a part of a series of deal commitments that should be imposed on Charter if the Commission saw fit to approve the merger. The Commission agreed with our recommendation. That allows us to speak authoritatively that the Commission, in concert with the New York State government, framed that expansion commitment as an adjunct to the state’s Broadband 4 All program, Gov. Andrew Cuomo’s rural broadband expansion effort.

Charter would serve an integral role in the effort by extending service to homes and businesses just outside of its current service area. That would save the state millions in costs trying to subsidize other providers to expand into these typically unprofitable areas of the state. The design and intention of the expansion program was clear from the outset, and the Commission specifically requested Charter provide detailed lists of planned expansion areas, so the state could avoid duplicating its efforts and re-target funding to other areas of the state. The goal was to achieve near-universal broadband availability in every corner of New York.

The Commission’s 2016 letter to Charter seemed clear enough:

The conditions adopted in this Order and listed in Appendix A shall be binding and enforceable by the Commission upon unconditional acceptance by New Charter within seven (7) business days of the issuance of this Order. If the Petitioners’ unconditional acceptance is not received within seven (7) business days of the issuance of this Order, the Petitioners will have failed to satisfy their burden under the Public Service Law as described herein, and this Order shall constitute a denial of the Joint Petition.

But in Charter’s response on January 19, 2016, their lawyers got too cute by half (emphasis ours):

In accordance with the Commission’s Order Granting Joint Petition by Time Warner Cable Inc. (“Time Warner Cable”) and Charter Communications, Inc. (“Charter”) dated January 8, 2016, Charter hereby accepts the Order Conditions for Approval contained in Appendix A, subject to applicable law and without waiver of any legal rights.

On May 9, 2018 the state discovered what that language discrepancy meant. Charter’s lawyers responded to the state’s charges that the company was not complying with the terms of the merger approval agreement with a classic “gotcha” letter, claiming Charter’s agreement provided only a “qualified” acceptance of language contained exclusively in Appendix A, and its obligations started and stopped there.

That is a distinction worth millions of dollars. Appendix A basically summarizes Charter’s commitment to expand to 145,000 new passings in New York, but does not explain the expansion program or its purpose. If only Appendix A did apply, it would allow Charter to count any new cable hookup, whether in a rural hamlet or more likely in a condo in Manhattan as a “new passing,” bringing it one customer closer to meeting its expansion commitment. Charter could count new wealthy gated communities, apartment buildings, offices, and converted lofts, despite the fact it would almost certainly wire those customers for service with or without its agreement with the state government. More importantly, Charter would successfully avoid spending tens of thousands of dollars to extend the cable line down a road just to reach one or two rural customers.

Charter’s lawyers seem to think that their clever loophole will win the company significant savings and avoid fines — too bad, so sad if the state’s lawyers failed to appreciate what Charter was actually willing to agree to in 2016 and what the state accepted by default by not catching the discrepancy sooner.

“Contrary to [Charter’s] assertions, however, the Approval Order accorded Charter only two explicit choices: (1) to accept unconditionally the commitments set forth in the body of the Approval Order and Appendix A; or (2) have the Joint Petition rejected, subject to Charter’s right to judicial review,” the Commission rebutted.

In short, the state is calling Charter’s possible bluff. If it truly intends not to agree to the original terms of the agreement, the state has the right to toss out the merger agreement, in part or in full, canceling the merger. Of course, Charter can always take the matter to court and hope it can find a judge that will accept Charter’s ‘partial agreement’ argument.

To say the PSC was displeased with Charter’s novel legal maneuver would be an understatement. In today’s ruling, the PSC severely admonished Charter for its bad behavior:

Charter was not free to pick and choose the conditions it would accept or the portions of the Approval Order with which it would comply, nor was Charter free to accept only some of the conditions in the Approval Order and Appendix A yet still obtain Commission approval of the merger transaction. Charter is likewise not free to rewrite the Commission’s conditions.

In effect, Charter is ripping off the people of New York, and the state’s regulators are having none of it.

“The Commission is troubled by Charter’s position that the Commission’s Approval Order means something other than what it actually states,” the PSC wrote. “Given that many of the obligations in that Order are continuing and will need to be fulfilled in the future, the Commission believes it is critical that Charter acknowledge the obligations it agreed to undertake in exchange for the benefits it received by the Commission’s conditional approval. Anything short of an unconditional full acceptance of the Approval Order and Appendix A would deprive New York state of its fair share of the incremental benefits.”

It is likely we will know where this is headed by mid-July, because the PSC has given Charter 14 days to recommit itself to the PSC’s original merger terms, not just those in infamous Appendix A. It signaled it will no longer debate the matter, either, telling Charter “the Commission will not countenance that conduct” and wants action:

Charter is directed to cure its defective acceptance and file with the Secretary to the Commission a new letter indicating its full unconditional acceptance of the Approval Order and Appendix A thereof within 14 days.

Should Charter, however, fail to provide a new letter indicating full unconditional acceptance, the Commission may pursue other remedies at its disposal, including but not necessarily limited to the following.

First, beginning proceedings pursuant to PSL §216 to rescind, modify or amend the Approval Order, specifically, the Commission’s approval of the transfer of the Time Warner’s cable franchises and associated facilities, networks, works and systems to Charter, in whole or in part.

Second, initiate an enforcement action pursuant to PSL §26 for failing to comply with the Approval Order’s Ordering Clause 1 including an action in Supreme Court to adjudicate the dispute and/or declare the Commission’s conditional approval null and void for lack of an unconditional acceptance.

And, third, initiate a penalty action for being out of compliance with the Approval Order’s unconditional acceptance requirement under PSL §25.

It’s a teachable moment for regulators, one that cable customers have come to learn over decades of bad experiences. It’s never a good idea to trust a cable company.

Search This Site:

Contributions:

Recent Comments:

  • Denise Rupert: Class action??...
  • Paul Houle: WatchTV legitimizes the idea of unbundling local channels from cable channels and it is about time. For many consumers, retransmission is a waste, ...
  • Paul Houle: I can believe in AT&T's plan, but not Comcast. For better or worse, AT&T is going "all in" on video and is unlike other major providers in ...
  • Phillip Dampier: Yes, that battle with Northwest Broadcasting, which also involved stations in Idaho-Wyoming and California, was the nastiest in recent history, with s...
  • Doug Stoffa: Digital takes up way less space than old analog feeds - agreed. In a given 6 MHz block, the cable company can send down 1 NTSC analog station, 2-4 HD...
  • Phillip Dampier: Digital video TV channels occupy next to nothing as far as bandwidth goes. Just look at the huge number of premium international channels loading up o...
  • Doug Stoffa: It's a bit more complicated than that. Television stations (and the networks that provide them programming) have increased their retransmission fees ...
  • Alex sandro: Most of the companies offer their services with contracts but Spectrum cable company offer contract free offers for initial year which is a very good ...
  • John: I live in of the effected counties, believe it or not our village is twenty three miles from WSKG Tower, approxiamately eighty miles from Syracuse, WS...
  • Wilhelm: I'm in the Finger Lakes where Spectrum removed WROC-8 last Fall, but we still get other Rochester channels, WHAM-13, WHEC-10 and WXXI-21. I have to wo...
  • dhkjsalhf: "Another classic case of businesses being much smarter than governments." I don't know whether this was sarcastic or not, but I feel it's a sentiment...
  • New Yorker: It makes no sense. I wonder sometimes if raising the limits on how much money rich people giving to candidates could make it more expensive to buy of...

Your Account: