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Justice Department Nearing Decision to Block Comcast-Time Warner Cable Merger

Phillip Dampier April 17, 2015 Competition, Consumer News, Public Policy & Gov't No Comments

comcast twcStaff attorneys that have reviewed details of the Time Warner Cable/Comcast merger proposal are prepared to make a recommendation as early as next week that the Department of Justice should block the deal because it is anti-competitive and anti-consumer.

The staff in the Justice Department’s antitrust division have spent more than a year reviewing documents submitted by both cable companies to determine what impact the merger would have on the cable television and broadband landscape.

Bloomberg News today reported the attorneys did not like what they saw and believe the merger would harm consumers. For the first time, a cable company merger deal was reviewed not so much for its impact on cable television programming, but on broadband.

When the Federal Communications Commission redefined broadband as an Internet connection of at least 25Mbps, Comcast suddenly found itself the largest broadband provider in the country. If the merger with Time Warner Cable is approved, Comcast will have a 56.8 percent market share of U.S. broadband customers, far exceeding any other provider.

In upstate New York, Comcast would have more than a 75% market share — nearly 9o% if you just consider non-Verizon FiOS areas. In California, Comcast would control more than 80% of the market, not only picking up Time Warner Cable customers, but Charter customers in Southern California as well. 

Comcast and Time Warner Cable have argued competition is not affected because the two companies never compete with each other. But a de facto broadband monopoly could allow Comcast to raise rates at will and bring a return to usage-related billing. It would also discourage new competitors from entering the market – particularly those relying on broadband to deliver video services, and hand Comcast more leverage to force compensation from online content companies like Netflix.

justiceUnder consideration by the Justice Department:

  • Whether the combined entity would have too much control over nationwide broadband Internet delivery;
  • whether Comcast could use its financial influence to strike exclusive cable deals that could keep programming off other platforms;
  • whether Comcast could limit how programming is delivered through video streaming services (usage caps, etc.);
  • if Comcast complied with terms under a previous merger deal with NBCUniversal.

Renata Hesse, a deputy assistant attorney general for antitrust, will take the analysis and ultimately decide, along with the division’s top officials, whether to file a federal lawsuit to block the deal. Bloomberg reports lawyers at the Justice Department have contacted outside parties to collect evidence to strengthen their potential case against the merger.

Another clear sign the merger is not being received well inside the Justice Department and the Federal Communications Commission is a complete lack of negotiations with Comcast over possible concessions to make the deal less anti-competitive. That also happened with the AT&T/T-Mobile merger where negotiations to ease anticompetitive concerns never seriously got off the ground before the Justice Department sued to block the deal. The FCC quickly announced its own opposition later that same day.

A lawsuit does not necessarily kill the merger deal. Comcast could take its case to federal court to win approval over the objections of the Justice Department. The company might also counter-propose new concessions to address concerns raised by the lawsuit. 

After learning of today’s Bloomberg News story, spokespeople at both Comcast and Time Warner Cable are either confident or in denial:

“There is no basis for a lawsuit to block the transaction,” said Sena Fitzmaurice, a Comcast spokeswoman. The merger “will result in significant consumer benefits — faster broadband speeds, access to a superior video experience, and more competition in business services resulting in billions of dollars of cost savings.”

Time Warner Cable spokesman Bobby Amirshahi said “we have been working productively with both DOJ and FCC and believe that there is no basis for DOJ to block the deal.”

Incumbent Cable, Phone Companies Will Tighten Bundle Pricing to Battle Cord-Cutting

triple play

A typical promotional offer from Comcast for a bundle of broadband, TV and phone service.

Cable and phone companies will continue to raise the price of broadband-only service while also increasing the value proposition of bundled packages of broadband, television, and phone service to keep customers from cutting the cable television cord.

For at least four years, cable companies have refocused rate increases and fees on Internet access, especially for broadband-only customers. At the same time, cable-TV rate hikes are easing, especially for customers subscribed to two or more services. Today, customers face prices as high as $67 a month for standalone Internet service. But that price can drop in half if customers bundle broadband with television and phone service. Most triple play promotions in markets where AT&T U-verse and Verizon FiOS compete can be as low as $90 a month. In less competitive markets, a similar promotion often costs $99-119 a month.

Recent research by Sanford Bernstein reveals these pricing strategies are not happening by accident.

Media analyst Todd Juenger recently held his second cord-cutting focus group in Comcast-dominant San Francisco and found some of those most likely to cancel cable television decided to keep their Comcast bundle after they discovered the cable company charges $66.95 a month for Internet-only service, excluding the modem rental fee. For $10 more per month during the first year, customers can get that same 25Mbps broadband service bundled with 140 TV channels. Assuming the customer doesn’t protest the subsequent rate increase beginning a year later, that rate will eventually reset to $136.90 a month. But price-sensitive customers who complain often avoid any rate increase at all.

Juenger’s focus group surveyed 18 men and women in the age group most likely to drop cable television – 21-38 year-olds. Despite their love for Netflix, Hulu, Amazon, and other online video services, the participants broadly recognized the cable/telco bundle now delivers a better value proposition and as long as cable and phone companies continue to price up standalone Internet service, many will choose to stay with the company they hate and not try to cobble together a comparable package of broadband and television service from other providers.

cablecord“Hence, we remain cautiously optimistic that cord-cutting, in large numbers, isn’t likely to happen,” Juenger wrote his clients. “It’s one of those ideas that sounds great in the abstract but crumbles when faced with the reality.”

As cable television pricing continues to exceed many household budgets, providers are seeking new customers that can afford cable TV but choose not to subscribe. One of their primary targets: broadband-only customers and cord-nevers who might be persuaded to add cable television at a starting price of $10-20 above what they pay for broadband service. That price is less than what Sling TV or PlayStation Vue charges for far fewer channels.

The challenge competing online video providers face is finding a compelling limited channel lineup that will appeal to all-comers. Although the average cable subscriber generally watches fewer than a dozen cable channels regularly, not having access to one or more of those favored channels is a deal-breaker for many.

Juenger’s focus group was most open to a hypothetical a-la-carte package of any 10 customer-chosen channels for $20 a month. But Juenger reminded his investor clients no such package currently exists and probably never will.

“Simply put, for existing pay-tv subs, the content [available to Sling or View customers] is too limited (relative to the cost savings); and for cord-nevers, the price is too high (relative to the appeal of the content),” Juenger wrote.

But Juenger did warn that customers are enthusiastic about sticking it to their current provider, if they can get the programming they want. That could make some programmers, especially broadcast stations and networks, more vulnerable to revenue loss. If a company can reliably offer a variety of theme-based slimmed down cable packages coupled with an effective and seamless over-the-air antenna, no retransmission fees would be paid to over-the-air stations and networks.

If the bundled package pricing argument doesn’t work with cord-cutters, the broadband usage cap probably will. Customers will quickly learn they can eat through their monthly Internet usage allowance watching live television online, or avoid that prospect by subscribing to cable TV, which offers unlimited viewing.

Sorry, That Competing Online Video/Cord-Cutter Competitor is Dead in the Water When Usage Caps Arrive

Phillip "It isn't so dumb to own the pipes" Dampier

Phillip “It isn’t so dumb to own the pipes” Dampier

In 2006, AT&T CEO Ed Whitacre thought his company was at a disadvantage being stuck with “dumb pipes” while Google, Yahoo! (remember them?) and Vonage couldn’t count their earnings fast enough. While AT&T sold consumers plain DSL service, content was king on Wall Street and Whitacre groused it was unfair for bandwidth hogs to use “the pipes for free.” That one statement was the equivalent of throwing a lit match on a hillside in Malibu Canyon and a predictable firestorm over Net Neutrality ensued.

Nine years later, Net Neutrality is now official FCC policy, although the sour grape-eating Republicans will continue to throw Congressional hissyfits along the way. While they rely on tissue-thin evidence to back their assertion the FCC secretly colluded with the Obama Administration to stick it to AT&T and demand its repeal, the future of Net Neutrality will more likely be decided in a courtroom a year or two from now.

Back in 2006 AT&T primarily sold DSL service and was looking for cash to finance its then emerging U-verse platform. AT&T planned to follow cable’s lead, devoting most of the available bandwidth on its fiber to the neighborhood network to cable television programming. Broadband speeds were limited to just under 25Mbps — even less if a large household had multiple television sets in use.

But as the Great Recession arrived and wages stagnated, the cost of what used to be a “must-have” service for most Americans increasingly began to exceed the household budget and the day finally arrived when cable companies started losing more television customers than they were adding. Even worse, cable programming costs continue to spiral upwards and no major cable company can increase cable television rates fast enough to support the usual profit margin the industry counted on.

What Whitacre failed to realize nine years earlier is that broadband providers did not simply own “dumb pipes.” AT&T, Comcast, Verizon, Time Warner Cable, Charter and other providers actually occupy two gilded catbird seats, with AT&T and Verizon dominating the wireless Internet business and Comcast, Time Warner, and Charter dominating at-home viewing and wired broadband. Lawmakers who deregulated both industries predicted pitting AT&T against Comcast or Verizon against Time Warner Cable would create competition not seen since Coke vs. Pepsi. Consumers would benefit and world-class service would result.

Instead, Time Warner Cable now sells Verizon Wireless phone service. Verizon gave up on expanding its FiOS network and is selling off its DSL and FiOS business in pieces to focus on its best moneymaker, Verizon Wireless. Comcast in turn threw in the towel on any notion of offering competing cellular service and, in fact, sold its acquired wireless spectrum to Verizon.

PlayStation Vue's lineup

PlayStation Vue’s lineup

The best way to make money is to avoid price wars with your competitors and the evidence shows there is growing peace in America’s Telecom Valley. Comcast can now raise your broadband bill because, for most, Verizon FiOS isn’t an option. AT&T U-verse does not have to hurry speed upgrades to customers if Time Warner Cable delivers no better than 50/5Mbps service in large parts of its service area. Google Fiber remains a minor threat, only available in a handful of cities. AT&T distributed more copies of its press release touting U-verse Gigapower — its gigabit Internet offering — than there are customers qualified to sign up.

Notice that we’ve drifted away from talking about cable television programming. So has the industry, now increasingly dependent on broadband rate increases to make up the difference in revenue they used to take home from their television packages.

But now that the biggest players have a predictable source of revenue, allowing disruptors to further challenge earnings isn’t something your local cable and phone company will allow for long. At the moment, those most likely to cause problems are the growing number of “over the top” streaming video services that do not require a cable television subscription to watch. But they do need broadband — Whitacre’s “dumb pipes” — to reach subscribers. To manage that, services like Apple, PlayStation Vue and Sling TV and their customers must deal with the gatekeepers — AT&T, Comcast, Time Warner Cable, Verizon and others.

What Whitacre thought was a disadvantage is now becoming the best thing in the world — manning a toll booth on the only two roads most Americans can use to access online content.

Today, Sony officially launched its Internet-TV service, “PlayStation Vue” in three cities (New York, Chicago and Philadelphia) with a base price of $49.99/month. In includes more than 50 cable networks and in the three launch cities — local network affiliates. In Chicago and Philadelphia, where Comcast provides cable service, potential customers will need to pay $50 a month for Vue and another $64.95 a month for 50Mbps broadband — the least expensive broadband-only tier that is suitable for high quality viewing. Your combined bill for both services is $114.94 a month. Comcast charges $99.99 a month for its double play – 220 TV channels and 50Mbps broadband — almost $15 a month less for its package, and it includes around 150 more channels than Vue.

Comcast explans its new usage caps.

Comcast explains its new usage caps.

But Comcast also has another weapon it is testing is several of its markets — the resumption of usage caps and overlimit fees on its broadband service. Comcast customers in most test markets are given 300GB a month, after which they face overlimit fees of $10 for each additional increment of 50GB. While web browsing and e-mail fit more than comfortably within those caps, watching HD video may not. That leaves a potential Vue customer with a major dilemma. Should they pay $15 a month more for service than they can pay Comcast for a better package -and- chew away their usage allowance using it?

Comcast has yet to figure out how to install a coin collector on top of your television set, so you can watch as much Comcast cable television as you’d like. But watching streaming video could get very expensive if it exceeds a future Comcast usage allowance.

Smaller video packages from providers like Sling TV or the forthcoming Apple streaming service might make more sense, but will still be subject to Comcast’s usage caps if/when they are reintroduced around the country, while Comcast’s own television service will not.

This is why cable and phone companies hold enormous power over their potential competitors, even if Net Neutrality is fiercely enforced. Usage caps and usage-based billing represent an end run around Net Neutrality and both are permitted. The FCC has consistently refused to engage on the issue of broadband usage caps, leaving providers with a useful weapon to deter customers from dropping their television package in favor of an online alternative.

With most Americans having a choice of only one or two “dumb pipes” over which they can reach these services, being an owner of those pipes and getting to set the rates and conditions to use them is a very comfortable (and profitable) place to be.

Comcast: Bill First, Ask Questions Later (or Never); Attorney Pelted With Collection Letters/Calls for Non-Service

comcast collectionsA Pennsylvania attorney that didn’t pay his $215 Comcast bill was hounded by Comcast’s collections crew despite never getting cable service at his new address.

Wayne resident Edmond Tiryak would seem like a poor target for cable company harassment. He’s a lawyer after all. But even he withered after a month of unrelenting phone calls and letters demanding he pay his bill for non-service.

Tiryak had a peaceful 25-year relationship with Comcast until he moved last October. After three weeks of no-show appointments, waits on hold of up to 40 minutes and lots of excuses, Comcast never bothered to hook up service at his new address. But that didn’t stop the cable company from billing Tiryak $215 for his first month, in advance.

Calling Comcast to the debate the veracity of the bill turned out to be an exercise in futility. Comcast’s offshore call center insists they know best — Tiryak has cable service because the computer says he does. The fact Tiryak lives at the address and claims he doesn’t is beside the point. The only important matter is how Tiryak would like to pay – Visa, Mastercard, Discover? The fact he still doesn’t have service is, well, incidental.

A reasonable person would refuse to pay and insist on an investigation by a supervisor to verify Comcast is MIA at the Tiryak residence. But Comcast has a collections department that could wear down Vladimir Putin and they know how to use it.

Two months later, the attorney pleaded with Inquirer business columnist Jeff Gelles to help get Comcast off his back.

“By the time he contacted me in January, Tiryak had given up in frustration and was just fighting to get the $215 bill erased,” Gelles wrote. “Even four letters to Comcast’s president hadn’t done the trick.”

Some quick media attention is an excellent way to get Comcast’s attention, at least for a little while, and Tiryak was initially pleased to report the charges had been zeroed out.

Phillip "Comcast channels Genghis Khan" Dampier

Phillip “Comcast channels Genghis Khan” Dampier

But then Comcast’s collections department changed their mind after dreaming about that $215 in lost revenue, and started calling Tiryak again.

Gelles forwarded on the complaint about the resumed harassment collection calls to Comcast and received yet another promise all would be made right.

“It’s astonishing to me that they would take a really good customer, who’s been with them 25 years, and basically just treat me as if I’m nothing – as if I’m useless to them,” Tiryak told Gelles.

A long-standing pattern of Comcast customer complaints suggests Tiryak should not be surprised.

Gelles gently reminded readers in Comcast’s hometown that the free market works best when customers have an alternative when stuck in an abusive relationship with the cable company. But deregulated capitalism hands out gold stars for monopoly building consolidation. Tiryak, like so many others, landed on Comcast’s Park Place and now they have to pay.

The solution to the chronic dyspepsia resulting from repeated exposure to Comcast isn’t Verizon, which has capitulated on further expansion of its competing FiOS fiber to the home service to focus on counting Verizon Wireless coin. Instead of phantom competition that never arrives, the FCC’s recent decision to provide checks and balances for cocky, deregulated behemoth cable companies like Comcast might be the best answer for now.

Despite industry claims that an apocalypse would result from applying any “utility-style” regulation like that used to keep AT&T in check during its monopoly years, consumer advocates suggest Comcast’s passive-aggressive behavior could be managed with one phone call to a state regulator.

Geldes asked the former director of consumer services for the Pennsylvania Public Utility Commission about how the agency would handle Tiryak’s complaint, if it were empowered to do so:

Under PUC rules, he says, after a utility investigates a dispute, it has to ask whether the consumer is satisfied. “If the customer says no, the company is required to give the PUC’s number for making an informal complaint,” he says. That is usually enough to solve most issues, he says. The agency also monitors nagging problems like long hold times for calls and occasionally intervenes.

Telephone companies used to dread the prospect of dealing with a customer complaint escalated to the New York Public Service Commission. Repair crews were often dispatched within an hour and generous service credits and apologies were routine. But the impact lived on for years after that. Customer service agents looking up account information on a customer who previously complained to the PSC about anything would find their computer terminal lit up like a Christmas tree, alerting them they were dealing with a customer that doesn’t play.

Recalling that era makes one wonder if regulating the biggest bad boys on the block — cable companies running wild — might not be such a bad idea after all.

Nothing else has worked.

Enjoy Better: Maine Lawmakers Slumming in the Off-Season at Maine Resort, Sponsored by Time Warner Cable

inn by the sea

Welcome to Inn by the Sea, where relaxed coastal luxury comes naturally.

Come for the unpretentious elegance, but don’t stay for the broadband.

Time Warner Cable’s war on competitive broadband in the state of Maine tastes delicious, if you are a lawmaker who enjoys a $26 herb marinated skirt steak with roasted mushrooms, chimichurri, piquillo aioli, and herbed hand cut steak fries in the dining room of the Cape Elizabeth seaside resort Inn by the Sea. Time Warner Cable (and you) picked up the tab, and for those lawmakers too full to drive, the cable company was ready with complimentary rooms at the Inn that retail off-season for $205-355 a night.

twcWelcome to the 2015 Time Warner Cable Winter Policy Conference, held Jan 22-23 at the remodeled resort and spa where a stay during the summer can cost $500 a day.

Thursday night’s dinner was followed by an all-day information lobbying event Friday — a workday when Maine lawmakers would normally be expected to serve the public interest, but served Time Warner Cable’s instead.

The overall theme of the conference: Defending Time Warner Cable’s performance in Maine and why letting community-owned providers compete with them is a really bad idea.

While lawmakers enjoyed complimentary access to the Inn by Sea’s high-speed Wi-Fi connection, Internet service around the rest of Cape Elizabeth is considerably less sublime, with Angie’s List reporting only 23 percent of the locals consider their broadband provider reliable. Maine itself is ranked 49th out of 50 states for quality of service and availability and no steak dinner will convince honest lawmakers the state is prepared with robust broadband required for the 21st century digital economy. Several members have introduced various measures to aid communities trying to move beyond DSL provided by FairPoint Communications and up to 50Mbps broadband from Time Warner Cable.

SWFIMG_080723_15590228_5EG1FThe thought of competition is enough to give any cable lobbyist indigestion, especially if the new entrant provides fiber to the home service, something almost unknown among commercial providers in Maine.

Lawmakers caught attending the shindig claimed they attended the “educational forum” to become informed.

But a review of the presenter list suggests this was hardly a 60 Minutes/Edward R. Murrow moment. Lawmakers may not have been aware the presentations were about as balanced as a program length commercial:

  • Moderator (Session 1): Jadz Janucik, National Cable & Telecommunication Association – The NCTA is the nation’s largest cable industry lobbying group;
  • Dave Thomas, Sheppard Mullin Richter & Hampton LLP: A corporate attorney representing cable companies, particularly when they face competitive threats;
  • Lisa Schoenthaler, National Cable & Telecommunication Association;
  • Moderator (Session 2): Charlie Williams, Time Warner Cable;
  • Charles Davidson and Michael Santorelli from the Advanced Communications Law and Policy Institute at New York Law School. Both have received direct compensation from Time Warner Cable for their  “research” reports and are very active and frequent defenders of Time Warner Cable’s public policy agenda;
  • Joe Gillan, Gillan Associates – an economist working under paid contract with the cable industry;
  • Moderator (Session 3): Tom Federle, Federle Law: Chief lobbyist for Time Warner Cable in Maine for over seven years;
  • Robin Casey, Enockever LLP: Casey is one of the nation’s pre-eminent cable industry lawyers, called by the Texas Cable Association “the authority on the telecom industry;”
  • Mary Ellen Fitzgerald, Critical Insights: A Maine pollster hired by Time Warner Cable to carry out the company’s carefully worded survey on broadband issues;
  • Moderator (Session 5): Melinda Poore, senior vice president of governmental relations, Time Warner Cable Maine.

spa lobby“If we want good public policy, there’s reason for all of us to be worried,” utilities expert Gordon Weil, the state’s first Public Advocate, who represented the interests of ratepayers before regulators, told the Maine Center for Public Integrity. Such treatment of legislators is “obviously intended to persuade them by more than the validity of the arguments; it’s intended to persuade by the reception they’re given.”

That sentiment was echoed in a glowing review from a Time Warner colleague given to Tom Federle, the company’s top lobbyist.

“Tom has been the primary lobbyist for Time Warner Cable’s Maine operations for the past seven years,” said Melinda Poole, an executive vice president for governmental relations at Time Warner Cable. “He has a real knack for distilling complex issues for policy makers, has always been able to advance our positions effectively, and consistently has outperformed for us. Tom is well respected by legislators on both sides of the aisle.”

Lawmakers contacted by the Maine Center for Public Integrity seemed to sidestep or downplay the ethical issues of attending the company-sponsored event.

“I think this idea of meals and conversations is how Augusta functions on some level,” said Rep. Mark Dion (D-Portland), who attended the event in Cape Elizabeth, did not stay overnight but was provided dinner and breakfast by Time Warner.

Sen. Andre Cushing (R-Hampden), for whom Time Warner paid the cost of meals and the room, said he thought “about a dozen” legislators attended the Thursday night dinner. Dion said “30 or 35″ attended the second day’s sessions.

Partying-ExecsScott Pryzwansky, Time Warner Cable’s director of public relations for the eastern U.S., declined to answer any specific questions but replied by email: “As one of Maine’s leading employers and telecommunications companies, we designed this second biannual educational forum to help policymakers and others better understand some of the complex telecommunications issues confronting Maine and the nation.”

Critics contend such “educational” meetings held at posh locations where company lobbyists hand out free meals and room keys do more to obfuscate than clarify issues for lawmakers, who are likely to remember the accommodations and who provided them more than the seminar.

“I would have said, ‘Fine, if you want to meet with me, come meet on state facilities, no steak dinner,’ said Weil. “If steak dinners didn’t work, they wouldn’t give them steak dinners.”

Time Warner Cable’s two-day event included a packet of handouts, obtained by Stop the Cap!, that illustrate exactly how one-sided the affair was:

  • sock puppetA highly slanted (refuted here) presentation opposing “Government Operated Networks” (or GONs – a favorite acronym used by industry-funded think tanks to oppose municipal broadband) produced by the Advanced Communications Law and Policy Institute;
  • an NCTA-produced sheet opposing taxes on Internet access;
  • a Time Warner Cable-written summary of recent Maine Public Utility Commission conclusions about the availability of affordable telephone service;
  • a guest letter to the editor from Fred Campbell, who has a long history running industry-funded groups that are supposed to advocate for competition, except when an industry friend’s merger deal is on the line;
  • and a blog post from the Koch Brothers-funded corporate-friendly Reason.com.

The slanted push-poll part of the presentation was also unsurprisingly predictable.

“Do you approve or disapprove of the current practice of Maine’s government using tax dollars and fees on consumers to subsidize public entities to compete with private businesses?” asked one question.

Another asked if residents would favor “using taxpayer supported debt to build government-owned broadband networks,” ignoring the fact many projects are covered by bonds that carry little or no risk to taxpayers. Some profitable projects could even return money to local communities.

At least one lawmaker was quickly skeptical of the veracity of the company-sponsored poll.

State Rep. Sarah Gideon (D- Freeport) said some of the questions were “leading.”

“Nobody’s going to say ‘Yes, I want my state to incur debt,’” said Gideon. “We see lots of surveys as policymakers and we have to be smart enough to look at what questions are asked.”

Since 2008, Time Warner has donated more than $240,000 to Maine politicians: $127,360 to Democrats and Democratic PACs, and $113,250 to Republicans and Republican PACs. Most of the minor improvements in the state’s broadband rankings since 2013 come from community providers providing a quantum speed leap over traditional DSL and cable broadband services most Maine residents receive.

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