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FCC to AT&T: Put Up or Shut Up; Agency Seeks Details About AT&T’s Fiber Pause Over Net Neutrality

Stephenson: No fiber for you

Stephenson: No fiber for you

AT&T’s decision to suspend fiber broadband upgrades over the Obama Administration’s strong support for Net Neutrality may backfire on the telecom giant’s multi-billion dollar bid to acquire DirecTV.

The Federal Communications Commission has dispatched a letter to Robert W. Quinn, Jr., AT&T’s senior vice President and federal regulatory & chief privacy officer, inquiring whether AT&T really meant what it said about plans to suspend fiber expansion and that might impact at least two million additional homes that are part of a broadband expansion commitment included in AT&T’s offer to acquire DirecTV.

The FCC’s Jamillia Ferris wants AT&T to clarify CEO Randall Stephenson’s comments at a recent investor event, requesting information that may reveal whether AT&T was using the suspension of its fiber buildout as a political weapon against Net Neutrality.

“We made some comments in the DirecTV announcement that we would build fiber to two million additional homes,” Stephenson said at a Wells Fargo technology conference last week. “We will obviously commit to that once the DirecTV deal is done, we will keep going. But what we have also announced on top of that is that we are going to deploy fiber to 100 cities. And look, we can’t go out and just invest that kind of money deploying fiber to 100 cities other than these two million not knowing under what rules that investment will be governed. And so we have to pause and we have to just put a stop on those kinds of investments that we are doing today.”

The FCC’s request suggests the company’s answers may impact how the FCC treats AT&T’s request for approval of its merger with DirecTV.

Requested from AT&T no later than Nov. 21:

(a) Data regarding the Company’s current plans for fiber deployment, specifically:

(1) the current number of households to which fiber is deployed and the breakdown by technology (i.e., FTTP or FTTN) and geographic area of deployment;

(2) the total number of households to which the Company planned to deploy fiber prior to the Company’s decision to limit deployment to the 2 million households and the breakdown by technology and geographic area of deployment; and

(3) the total number of households to which the Company currently plans to deploy fiber, including the 2 million households, and the breakdown by technology and geographic area of deployment;

(b) A description of

(1) whether the AT&T FTTP Investment Model demonstrates that fiber deployment is now unprofitable; and

(2) whether the fiber to the 2 million homes following acquisition of DirecTV would be unprofitable; and

(c) All documents relating to the Company’s decision to limit AT&T’s deployment of fiber to 2 million homes following the acquisition of DirecTV.

Net Neutrality Freakout: Wall Street Popping Prozac, GOP Furious, Big ISPs, Allies Shocked and Appalled

President Barack Obama’s strong commitment to robust Net Neutrality protections for the Internet has created a nightmare scenario for Net Neutrality opponents who can no longer count on an ex-telecom industry lobbyist now in charge at the Federal Communications Commission to take care of their business interests with watered down, damage-controlled, net-protection-in-name-only.

The attacks on President Obama’s convictions began almost immediately after his video was published on whitehouse.gov with Sen. Ted Cruz’s declaration that Net Neutrality was Obamacare for the Internet, a statement that may have played well with his Texas tea party base, but was quickly parodied on social media:

4

Hal Singer from the ironically named Progressive Policy Institute opined that President Obama’s decision to declare real Net Neutrality would likely lead to the new majority of Republicans to completely defund the agency in retaliation. PPI is strongly opposed to Net Neutrality and many other consumer protection measures and represents the interests of the George W. Bush wing of the Democratic Party, which consists of about six people (and Harold Ford, Jr. probably wishes he was one of them.)

net neutrality fee“We are stunned,” Michael Powell, a former FCC chairman who is now president of the National Cable & Telecommunications Association, said in an e-mail to Bloomberg reporters. After six years of supine oversight of giant telecommunications companies from former FCC chairman Julius “Data caps are innovative” Genachowski and the installation of an ex cable and wireless industry lobbyist as chief regulator of the country’s telecommunications industry, AT&T, Verizon and Comcast have faced few challenges to their regulatory wish lists.

The Washington Post “Innovations” editorial page proved once again the Post is now the leading publication neocons and pro-business conservatives keep hidden under their mattresses next to the Wall Street Journal for those private moments. WaPo devoted news space to a hack editorial from Larry Downes, who turned up in Congress earlier this summer to cheerlead the merger of AT&T and DirecTV and has vociferously opposed Net Neutrality since at least 2011.

In his generally fact-challenged piece, Downes proclaims the Obama Administration was seeking nothing less than to saddle the Internet with oppressive outdated regulations written in 1934, that the courts threw out earlier hybrid/compromise Net Neutrality regulations simply because they lacked the words “commercially unreasonable,”  and that implementing Net Neutrality would destroy investment in the world’s leading cable, mobile, and fiber networks.

Downes does not get out much, because other countries as diverse as South Korea, Lithuania, Bulgaria, Japan and Singapore have long since passed the United States, with much of Europe poised to follow their lead. Some of them even enforce Net Neutrality and the sky failed to collapse as a result. Broadband life is good in Bucharest.

Nothing about the Obama Administration’s proposal for Net Neutrality would do anything beyond preserving the Internet as we know and love it and judges told the FCC’s attorneys they had no authority to impose Net Neutrality under the freak flawed framework established by Michael Powell, former FCC chairman-turned cable industry lobbyist.

Downes also laims he is shocked, shocked I tell you to discover the FCC isn’t immune to political pressure from the White House and other Beltway forces. Except he is one of those Beltway forces.

The Post was content disclosing that Downes was simply a co-author of “Big Bang Disruption:  Strategy in the Age of Devastating Innovation” (Portfolio 2014) and the project director at the harmless-sounding Georgetown Center for Business and Public Policy.

If you suspected Downes was just a tad closer to the industry he often advocates for than the newspaper was letting on, you would be right.

net neutrality comicIn fact, Downes is a “fellow” at the Bell Mason Group, a corporate advisory firm “passionate about partnering with forward-thinking corporate venturing and innovation executives, […] helping clients build risk-reduced, impactful programs and overcome corporate antibodies and obstacles [and deliver] measurable value.”

Net Neutrality is an example of one of those “risky corporate obstacles” to total monopoly control that could deliver Big Telecom companies “measurable value.” Among Downes’ past clients is a tiny phone company named AT&T, but you wouldn’t know it from Bell Mason’s well-scrubbed website. Too bad for them archive.org took a snapshot of an earlier version of his bio, revealing his less-than-arm’s-length relationship with AT&T.

None of this is apparently pertinent to the editors of the Washington Post. Disclosing Downes’ co-authorship of a far-less germane book one critic called a “big bang disappointment” was more than enough.

Bloomberg News avoided the hopelessly unbelievable talking points about Internet takeovers and concluded President Obama threw his FCC chairman under the bus. But even that conclusion originated from the conservative, anti-Net Neutrality group the Heritage Foundation, quoted in the piece:

“He threw Tom Wheeler under the bus,” said James Gattuso, a senior research fellow at the Heritage Foundation, a Washington-based policy group. Obama’s strong stance makes it harder for Wheeler to reach a compromise among proponents of regulation, Gattuso said.

Except proponents of Net Neutrality are tired of compromises that favor ungrateful telecom companies that routinely sue even the most minor consumer protections out of existence. Wheeler was rumored to be proposing yet another compromise as late as last week, one that would protect deep-pocketed content companies but leave consumers open to further abuse from high cost fast lanes and speed throttles.

Various tea party groups ginned up with claims of an imminent Obama socialist takeover of the Internet, Maoist censorship and protectionist rate regulation took to the comment sections of various news pieces and wrote comments like this:

“I don’t want government control that would force private companies not to control what I can see on the Internet.” 

riskyFor public policy mavens that claim Net Neutrality is a solution in search of a problem, countering Wall Street’s decisive view that Net Neutrality is a disaster for plans of revenue boosting schemes are harder to counter.

Obama’s intervention effectively kills Wheeler’s mixed plan, Paul de Sa, a senior analyst at Sanford C. Bernstein & Co. in New York, said in a note. It will be hard for the FCC, with a majority of Democrats appointed by Obama, to deviate significantly from his preference, and strong rules are likely, de Sa said.

Obama’s intervention “does not lead to price regulation of broadband,” in part because the FCC has no desire to do so, he said. Debate in Washington will intensify, with Congress holding “interminable hearings” and trying to prohibit the FCC from applying the strong rules, de Sa said.

The meaning to investors was clear: Internet profiteering plans are on indefinite hold. Comcast Corp. fell 63 cents or 1.2 percent, to $52.33 at 10:39 a.m. in New York trading, and are down as much as 5.1 percent this week. Time Warner Cable Inc. dropped $3.34, or 2.5 percent. AT&T Inc. fell 16 cents to $34.97 and Verizon Communications Inc. (VZ) fell 15 cents to $50.57.

A move to fully reclassify broadband, even if it includes “forbearance” from rate regulation, as President Obama suggested, would send investors scurrying, according to Kim Wallace, a policy analyst at Renaissance Macro Research. That is because it would cast doubt on cable and telecom companies’ abilities to generate a “sufficient return” on capital investments, which they expect to be sky high based on the limited amount of competition that exists today.

Craig Moffett, perennial cable stock booster, had the temerity to blame the latest developments on Comcast.

“The great irony is Comcast helped start this ball rolling by trying to buy Time Warner Cable in the first place,” said Moffett, an analyst at MoffettNathanson. “With the specter of possible price regulation hanging in the balance, [the question is] would Comcast still want to increase its exposure to distribution assets” in broadband.

The Wall Street press provides some salve for the chafed telecom industry high-flyer — the likely prospect of litigation tying up Net Neutrality long enough for Republicans to write new telecom laws that would lead to near-total regulatory capitulation and a free hand for providers. But investors sure hate uncertainty, so the Money Party will have to be postponed for now.

We have four illuminating news stories to share today on Net Neutrality:

http://www.phillipdampier.com/video/PBS Why is Obama weighing in on net neutrality 11-10-14.mp4

More than 3 million commenters crashed the Federal Communications Commission website in July to weigh in on the issue of net neutrality. Now President Obama has added his strong support, directing the FCC to protect equal access to all web content. Judy Woodruff speaks with U.S. chief technology officer Megan Smith about the president’s move. (7:33)

http://www.phillipdampier.com/video/Bloomberg Ex-FCCs Furchtgott-Roth Copps Debate Net Neutrality 11-10-14.flv

Former Federal Communications Commission members Harold Furchtgott-Roth and Michael Copps talk about President Barack Obama’s call for the “strongest possible rules” to protect the open Internet and the value of so-called net-neutrality rules. They speak with Cory Johnson on Bloomberg Television’s “Bloomberg West.” (7:00)

http://www.phillipdampier.com/video/CNN Here is why you should care about net neutrality 11-10-14.flv

CNN explores why you should care about Net Neutrality and reminds us in a world of distorted punditry exactly what “Net Neutrality” is. (3:58)

http://www.phillipdampier.com/video/Fox Business Michael Powell Net Neutrality 11-10-14.flv

Fox Business gives former FCC chairman Michael Powell an unchallenged platform to present his views on Net Neutrality. It becomes clear which side Fox is on when they call porn peddler Larry Flynt the quintessential Net Neutrality advocate. (5:08)

Net Neutrality: President Obama Calls on FCC to Reclassify Wired/Mobile Broadband Under Title 2

tollIn a major victory for net roots groups, President Barack Obama today announced his support for the strongest possible Net Neutrality protections, asking the Federal Communications Commission to quickly reclassify broadband as a “telecommunications service” subject to oversight and consumer protection regulatory policies that would prohibit paid fast lanes, the blocking or degrading of websites for financial reasons, and more transparency in how Internet Service Providers handle traffic.

“For almost a century, our law has recognized that companies who connect you to the world have special obligations not to exploit the monopoly they enjoy over access in and out of your home or business,” said the president. “That is why a phone call from a customer of one phone company can reliably reach a customer of a different one, and why you will not be penalized solely for calling someone who is using another provider. It is common sense that the same philosophy should guide any service that is based on the transmission of information — whether a phone call, or a packet of data.”

“’Net neutrality’ has been built into the fabric of the Internet since its creation — but it is also a principle that we cannot take for granted,” President Obama added. “We cannot allow Internet Service Providers (ISPs) to restrict the best access or to pick winners and losers in the online marketplace for services and ideas. That is why today, I am asking the Federal Communications Commission (FCC) to answer the call of almost four million public comments, and implement the strongest possible rules to protect Net Neutrality.”

The president’s call will likely force FCC chairman Thomas Wheeler to abandon efforts to reclassify only certain types of Internet traffic under Title 2 regulations while leaving consumers vulnerable to paid fast lanes and other traffic monetizing schemes. Wheeler was rumored to be working on a limited Net Neutrality plan that would protect large online video content distributors like Netflix and Amazon from unfair compensation deals with ISPs. The plan would have given the FCC authority to review agreements between your Internet provider and some of the net’s biggest traffic generators.

President Obama’s statement goes beyond Wheeler’s tolerance for “individualized, differentiated arrangements” that could let cable and phone companies offer compensated “preferred partnership” deals with websites and applications, granting them special treatment or exemptions from speed throttles or usage caps not available to others.

The president’s four principles for a free and open Internet represent “common-sense steps that reflect the Internet you and I use every day, and that some ISPs already observe:”

  • netneutralityNo blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player — not just those commercially affiliated with an ISP — gets a fair shot at your business;
  • No throttling. Nor should ISPs be able to intentionally slow down some content or speed up others — through a process often called “throttling” — based on the type of service or your ISP’s preferences;
  • Increased transparency. The connection between consumers and ISPs — the so-called “last mile” — is not the only place some sites might get special treatment. So, I am also asking the FCC to make full use of the transparency authorities the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet;
  • No paid prioritization. Simply put: No service should be stuck in a “slow lane” because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet’s growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect.

The president also expressed a desire to see the same rules applied to mobile networks. That is a significant departure from the policies of the FCC under Wheeler’s predecessor Julius Genachowski, who served as chairman during the Obama Administration’s first term in office. His Net Neutrality policies exempted wireless carriers.

“The rules also have to reflect the way people use the Internet today, which increasingly means on a mobile device,” said the president. “I believe the FCC should make these rules fully applicable to mobile broadband as well, while recognizing the special challenges that come with managing wireless networks.”

http://www.phillipdampier.com/video/111014_NetNeutrality_Final.mp4

President Barack Obama recorded this message supporting strong Net Neutrality protections for the Internet. (1:56)

Republicans in Congress and large telecommunications companies both immediately pounced on the president’s Net Neutrality plans.

Cruz Control

Cruz

“Net Neutrality is Obamacare for the Internet,” tweeted Sen. Ted Cruz (R-Tex.) “The Internet should not operate at the speed of government.”

Cruz’s spokeswoman,  Amanda Carpenter, added that Net Neutrality would place the government “in charge of determining pricing, terms of service, and what products can be delivered. Sound like Obamacare much?”

The National Cable and Telecommunications Association expressed surprise over the president’s strong public support for Net Neutrality action.

“We are stunned the President would abandon the longstanding, bipartisan policy of lightly regulating the Internet and call for extreme Title II regulation,” the NCTA wrote. “The cable industry strongly supports an open Internet, is building an open internet, and strongly believes that over-regulating the fastest growing technology in our history will not advance the cause of Internet freedom. There is no dispute about the propriety of transparency rules and bans on discrimination and blocking. But this tectonic shift in national policy, should it be adopted, would create devastating results.”

“Heavily regulating the Internet will lead to slower Internet growth, higher prices for consumers, and the threat of excessive intervention by the government in the working of the Internet,” stated the NCTA release. “This will also have severe and profound implications internationally, as the United States loses the high ground in arguing against greater control of the Internet by foreign governments. There is no substantive justification for this overreach, and no acknowledgment that it is unlawful to prohibit paid prioritization under Title II. We will fight vigorously against efforts to impose this backwards policy.”

GreatLand Connections Has Few Employees, No Building; Yet Wants to Serve 2.5 Million Subscribers

greatlandGreatLand Connections, a new cable company with no headquarters building and only a handful of employees, is seeking permission to serve 2.5 million ex-Comcast/Time Warner Cable customers while saddled with $7.8 billion in debt the day its opens for business.

The entity, now administered primarily by a small executive team, will trade on the NASDAQ exchange under the symbol ‘GLCI’ and would start operations in 2015. Tidbits about the planned cable operator were included in a regulatory filing with the Securities and Exchange Commission, primarily concerning how shareholders and executives will be handled if the merger is approved.

GreatLand Connections was created to appease the U.S. Justice Department and Federal Communications Commission that earlier expressed concern about any single cable operator exceeding 30 percent of the national cable television market. Spinning off 2.5 million customers in less desirable service areas keeps Comcast’s market share just under 30%, but the SEC filing reveals Comcast isn’t exactly kicking customers out in the cold and disinheriting them. Comcast shareholders will own and control 67% of GreatLand Connections. Comcast will also select six of the nine members of the Board of Directors at GreatLand, and the SEC filing includes an admission to shareholders that a conflict of interest could exist between certain executives and board members who have investments in both cable companies.

The new company’s large debt load — about five times the company’s estimated earnings before interest, depreciation, taxes, and certain other expenses, is designed to shield Comcast from having to pay taxes on the spinoff. GreatLand’s filing states the transfer deal and spin-up of its company will qualify as a tax-free reorganization transaction.

The initial debt load is considerably higher than what most other cable companies carry, which makes it likely subscribers will be asked to help pay it off in the form of higher rates for years to come.

Even without a single piece of office furniture in place, GreatLand could begin serving as one of the nation’s largest cable companies with an estimated value of $5.7 billion in less than a year.

(Clarification: This article was updated to reflect Comcast shareholders will own 67% of GreatLand after the transaction closes.)

Republican Victory Sparks Potential Lobbying Frenzy Rewriting/Deregulating Nation’s Telecom Laws

Thune

Sen. John Thune (R-S.D.) will assume the leadership of the Senate Commerce Committee in January.

The Republican takeover of the U.S. Senate could have profound implications on U.S. telecommunications law as Congress contemplates further deregulation of broadcasting, broadband, and telecom services while curtailing oversight powers at the Federal Communications Commission.

Sen. John Thune (R-S.D.), expected to assume leadership over the Senate Commerce Committee in January, has already signaled interest in revising the 1996 Communications Act, which was built on the premise that deregulation would increase competition in the telecommunications marketplace.

“Our staff has looked at some things we might do in the area of telecommunications reform,” Thune told Capital Journal.” That hasn’t been touched in a long time. A lot has changed. The last time that the telecom sector of the economy was reformed was 1996, and I think in that bill there was one mention of the Internet. So it’s a very different world today.”

Republicans have complained the 1996 Telecom Act is dependent on dividing up services into different regulatory sectors and subjecting them to different regulatory treatment. In the current Net Neutrality debate, for example, a major component of the dispute involves which regulatory sector broadband should be classified under — “an information service” subject to few regulations or oversight or Title 2, a “telecommunications service” that has regulatory protections for consumers who have few choices in service providers.

Republicans have advocated streamlining the rules and eliminating “broad prescriptive rules” that can have “unintended consequences for innovation and investment.” Most analysts read that as a signal Republicans want further deregulation across the telecom industry to remove “uncertainty for innovators.”

Republicans have been particularly hostile towards imposing strong Net Neutrality protections, particularly if it involves reclassification of broadband as a “telecommunications service” under Title 2 of the Communications Act. Most expect Thune and his Republican colleagues will oppose any efforts to enact Net Neutrality policies that open the door for stronger FCC regulatory oversight.

The move to re-examine the Communications Act will result in an enormous stimulation of the economy, if you happen to run a D.C. lobbying firm. Just broaching the subject of revising the nation’s telecommunications laws stimulates political campaign contributions and intensified lobbying efforts. From 1997-2004, telecommunications companies advocating for more deregulation spent more than $44 million in direct soft money and PAC donations — $18 million to Democrats, $27 million to Republicans. During the same period, eight companies and trade groups in the broadcasting, cable and telephone sector collectively spent more than $400 million on lobbying activities alone, according to Common Cause.

Reopening the Telecom Act for revision is expected to generate intense lobbying activity, as Congress contemplates subjects like eliminating or curtailing FCC oversight over broadband, how wireless spectrum is distributed to wireless companies, how many radio and television stations a company can own or control, maintaining or strengthening bans on community broadband networks, oversight of cable television packages, and compensation for broadcast stations vacating frequencies to make room for more cellular networks.

Common Cause notes ordinary citizens had little say over the contents of the ’96 Act and consumer group objections were largely ignored. When the bill was eventually signed into law by President Bill Clinton, its sweeping provisions affected almost every American:

Good times at K Street lobbying firms are ahead

Good times at K Street lobbying firms are ahead

BROADCASTING

  1. The 96 Act lifted the limit on how many radio stations one company could own. The cap had been set at 40 stations. It made possible the creation of radio giants like Clear Channel, with more than 1,200 stations, and led to a substantial drop in the number of minority station owners, homogenization of playlists, and less local news. Today, few listeners can tell the difference between radio stations with similar formats, regardless of where they are located.
  2. Lifted from 12 the number of local TV stations any one corporation could own, and expanded the limit on audience reach. One company had been allowed to own stations that reached up to a quarter of U.S. TV households. The Act raised that national cap to 35 percent. These changes spurred huge media mergers and greatly increased media concentration. Together, just five companies – Viacom, the parent of CBS, Disney, owner of ABC, FOX-News Corp., Comcast-NBC, and Time Warner now control 75 percent of all prime-time viewing.
  3. The Act gave broadcasters, for free, valuable digital TV licenses that could have brought in up to $70 billion to the federal treasury if they had been auctioned off. Broadcasters, who claimed they deserved these free licenses because they serve the public, have largely ignored their public interest obligations, failing to provide substantive local news and public affairs reporting and coverage of congressional, local and state elections. Many television stations have discontinued local news programming altogether or have relied on partnerships with other stations in the same market to produce news programming for them. Most local television stations are now owned by out-of-state conglomerates that control dozens of television stations and now expect to be compensated by viewers watching them on cable or satellite television.
  4. The Act reduced broadcasters’ accountability to the public by extending the term of a broadcast license from five to eight years, and made it more difficult for citizens to challenge those license renewals.

TELECOMMUNICATIONS

  1. The 1996 Act preserved telephone monopoly control of their networks, allowing them to refuse new entrants who depend on telco infrastructure to sell their services.
  2. The Act was designed to promote increased competition but also allowed major telephone companies to refuse to compete outside of their home territories. It also allowed Bell operating companies to buy each other, resulting in just two remaining major operators — AT&T and Verizon.

CABLE

  1. The ’96 Act stripped away the ability of local franchising authorities and the FCC to maintain oversight of cable television rates. Immediately after the ’96 Act took effect, rate increases accelerated.
  2. The Act permitted the FCC to ease cable-broadcast cross-ownership rules. As cable systems increased the number of channels, the broadcast networks aggressively expanded their ownership of cable networks with the largest audiences. In the past, large cable operators like Time Warner, TCI, Cablevision and Comcast owned most cable networks. Broadcast networks acquired much of their ownership interests. Ninety percent of the top 50 cable stations are owned by the same parent companies that own the broadcast networks, challenging the notion that cable is any real source of competition.

net-neutral-cartoon“Those who advocated the Telecommunications Act of 1996 promised more competition and diversity, but the opposite happened,” said Common Cause president Chellie Pingree back in 1995. “Citizens, excluded from the process when the Act was negotiated in Congress, must have a seat at the table as Congress proposes to revisit this law.”

Above all, the legacy of the 1996 Telecom Act was massive consolidation across almost every sector.

Over ten years, the legislation was supposed to save consumers $550 billion, including $333 billion in lower long-distance rates, $32 billion in lower local phone rates, and $78 billion in lower cable bills. But most of those savings never materialized. Indeed, Sen. John McCain (R-Ariz.), who opposed the legislation, noted in 2003: “From January 1996 to the present, the consumer price index has risen 17.4 percent … Cable rates are up 47.2 percent. Local phone rates are up 23.2 percent.”

Advocates of deregulation also promised the Act would create 1.4 million jobs and increase the nation’s Gross Domestic Product by as much as $2 trillion. Both proved wrong. Consolidation meant the loss of at least 500,000 “redundant” jobs between 2001-2003 alone, and companies that became indebted in the frenzy of mergers and acquisitions ended up losing more than $2 trillion in the speculative frenzy, conflicts of interest, and police-free zone of the deregulated telecom marketplace.

The consolidation has also drastically reduced the number of independent voices speaking, writing, and broadcasting to the American people. Today, just a handful of corporations control most radio and TV stations, newspapers, cable systems, movie studios, and concert ticketing and facilities.

The law also stripped away oversight of the broadband industry which faces little competition and has no incentive to push for service-enhancing upgrades, costing America’s leadership in broadband and challenging the digital economy. What few controls the FCC still has are now in the crosshairs of large telecom companies like AT&T, Comcast, and Verizon.

All are lobbying against institutionalized Net Neutrality, oppose community broadband competition, regulated minimum speed standards, and service oversight. AT&T and Verizon are lobbying to dismantle the rural telephone network in favor of their much more lucrative wireless networks.

Consumers Union predicted the outcome of the 1996 Telecom Act back in 2000, when it suggested a duopoly would eventually exist for most Americans, one dedicated primarily to telephone services (AT&T and Verizon Wireless’ mobile networks) and the other to video and broadband (cable). The publisher of Consumers Reports also accurately predicted neither the telephone or the cable company would compete head to head with other telephone or cable companies, and High Speed Internet would be largely controlled by cable networks using a closed, proprietary network not open to competitors.

Analysts suggest a 2015 Telecom Act would largely exist to further cement the status quo by prohibiting federal and state governments from regulating provider conduct and allowing the marketplace a free hand to determine minimum standards governing speeds, network performance, and pricing.

In fact, the most radical idea Thune has tentatively proposed for consideration in a revisit of the Act is his “Local Choice” concept to unbundle broadcast TV channels from all-encompassing cable television packages. His proposal would allow consumers to opt out of subscribing to one or more local broadcast television stations now bundled into cable television packages.

FCC Chairman Tom Wheeler Ignores Millions of Americans, Plans Fake Net Neutrality Frankenplan

frankenplanThe majority of 3.7 million comments received by the FCC advocate strong and unambiguous Net Neutrality protections for the Internet, but that seems to have had little impact on FCC chairman Thomas Wheeler, who is laying the groundwork for a hybrid Net Neutrality Frankenplan that would marginally protect deep pocketed content producers while leaving few, if any, protections for consumers.

The Wall Street Journal reported late last week that Wheeler is considering a “hybrid” approach, separating broadband into two distinct services:

  • Retail Broadband, sold to consumers, would continue as a broadly deregulated service, allowing ISPs to set prices and policies with little, if any, oversight. Wheeler’s plan would allow providers to freely implement usage-based pricing, establish paid fast lanes at the request of customers, and permit ISPs to continue exempting preferred content from usage pricing while charging customers extra to access content from “non-preferred partners;”
  • Wholesale Broadband, the connection between your ISP and content producers, would be reclassified under Title II and subject to common carrier regulations, which would allow the FCC to police deals between your provider and services like Netflix.

Wheeler’s proposal would offer significant protection to wealthy content producers like Netflix, Amazon.com, broadcasters and Hollywood studios, but would leave consumers completely exposed to providers’ pricing tricks, usage caps/consumption billing, and paid fast lanes that could leave unpaid content vulnerable to network deterioration, especially during peak usage times.

Comcast_pumpkinLarge telecommunications companies argue that deregulation promotes broadband investment and expansion to create world-class service. But years of statistics and comparisons with other countries suggest deregulation has not inspired sufficient competition to keep prices in check and force regular network upgrades. In fact, competition is much more robust at the wholesale level, while the majority of retail consumers have a choice of just one or two providers that receive almost no oversight. Those providers are now exercising their market power to further monetize broadband usage to boost profits and raise prices.

Wheeler’s proposal would ignore the wishes of more than three million Americans that want comprehensive Net Neutrality protections, as well as those of President Barack Obama, who has called for a ban on paid fast lanes. A senior White House official signaled Thursday the administration has concerns about Wheeler’s proposal, noting “the president has made it abundantly clear that any outcome must protect net neutrality and ban paid prioritization—and has called for all necessary steps to safeguard an open Internet.”

“This Frankenstein proposal is no treat for Internet users, and they shouldn’t be tricked,” consumer group Free Press CEO Craig Aaron said in a statement. “No matter how you dress it up, any rules that don’t clearly restore the agency’s authority and prevent specialized fast lanes and paid prioritization aren’t real Net Neutrality.”

Broadband providers don’t like Wheeler’s plan either. Verizon last week sent comments to the FCC warning any attempt to reclassify broadband under Title II “could not withstand judicial review.” Others, including the industry-backed U.S. Telecom Association, promised swift legal action against Wheeler’s proposal.

Aaron believes the last thing broadband needs is another “hybrid” plan.

“The FCC has already tried twice before to invent new classifications on the fly instead of clear rules grounded in the law,” Aaron said. “And twice their efforts have been rejected. This flimsy fabrication will be no different. And this approach will only serve to squander the political support of millions and millions of Americans who have weighed in at the agency asking for strong rules that will stand up in court.”

Federal Trade Commission Suing AT&T Over Unfair Speed Throttles for Unlimited Data Customers

throttleThe Federal Trade Commission today filed a lawsuit against AT&T for its practice of subjecting grandfathered unlimited data customers to speed throttles that dramatically cut speeds up to 90 percent after customers use more than 3GB of data on AT&T’s 3G network or 5GB on its 4G network. Thus far, according to the FTC, AT&T has throttled at least 3.5 million unique customers a total of more than 25 million times.

The FTC’s complaint alleges that the company failed to adequately disclose to its customers on unlimited data plans that, if they reach a certain amount of data use in a given billing cycle, AT&T reduces – or “throttles” – their data speeds to the point that many common mobile phone applications – like web browsing, GPS navigation and watching streaming video –  become difficult or nearly impossible to use.

“AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise,” said FTC Chairwoman Edith Ramirez. “The issue here is simple: ‘unlimited’ means unlimited.”

FCC chairman Thomas Wheeler publicly complained about Verizon’s plans to start a similar throttling program on its wireless network, questioning the fairness of cutting speeds for certain customers while exempting others. Both Verizon and AT&T have claimed speed throttles are part of a fair usage policy that allows all customers to share its wireless resources. Broadband providers have often painted a picture of a “bandwidth hog” taking a disproportionate share of network resources away from other customers, but there is no evidence heavier users are creating conflicts for other users, especially as wireless carriers encourage customers to use more data.

throttle att

From AT&Ts website

The logic of rationing Internet use for unlimited customers while providing unlimited access to those willing to pay usage-based charges escaped the FTC, which is what brought the suit.

According to the FTC’s complaint, AT&T’s marketing materials emphasized the “unlimited” amount of data that would be available to consumers who signed up for its unlimited plans. The complaint alleges that, even as unlimited plan consumers renewed their contracts, the company still failed to inform them of the throttling program. When customers canceled their contracts after being throttled, AT&T charged those customers early termination fees, which typically amount to hundreds of dollars.

The FTC alleges that AT&T, despite its unequivocal promises of unlimited data, began throttling data speeds in 2011 for its unlimited data plan customers after they used as little as 2 gigabytes of data in a billing period. According to the complaint, the throttling program has been severe, often resulting in speed reductions of 80 to 90 percent for affected users.

According to the FTC’s complaint, consumers in AT&T focus groups strongly objected to the idea of a throttling program and felt “unlimited should mean unlimited.” AT&T documents also showed that the company received thousands of complaints about the slow data speeds under the throttling program. Some consumers quoted the definition of the word “unlimited,” while others called AT&T’s throttling program a “bait and switch.” Many consumers also complained about the effect the throttling program had on their ability to use GPS navigation, watch streaming videos, listen to streaming music and browse the web.

The complaint charges that AT&T violated the FTC Act by changing the terms of customers’ unlimited data plans while those customers were still under contract, and by failing to adequately disclose the nature of the throttling program to consumers who renewed their unlimited data plans.

FTC staff worked closely on this matter with the staff of the Federal Communications Commission.

The Commission vote authorizing the staff to file the complaint was 5-0. The complaint was filed in the U.S. District Court for the Northern District of California, San Francisco Division.

FCC Delays Wireless Spectrum Auction; Hires Investment Banker to Pitch Stations to Sell and Sign-Off

fcc2The Federal Communications Commission announced Friday it will postpone an important spectrum auction until 2016 after broadcasters filed suit against the regulator challenging its proposed format.

The FCC wants your free, over-the-air television dial to be a lot smaller with a deal that will pay broadcasters to sign-off their channels for good to benefit the wireless industry. Remaining stations will be moved to VHF channels 2-13 and UHF channels 14-30. The spectrum covering UHF channels 31-51 would likely then be sold in pieces to major wireless carriers including AT&T, Verizon Wireless, Sprint, and/or T-Mobile.

To entice broadcasters to voluntarily switch off their transmitters, the FCC has designed a spectrum auction that would provide tens of millions in proceeds to smaller stations and up to $570 million for a UHF station in Los Angeles to get off the air. Technically, stations giving up their channels don’t have to sign-off — they can move to low/lower-powered broadcasting, share channel space with another television station on a digital subchannel, or move to cable television exclusively.

To sell stations on the deal, FCC Chairman Tom Wheeler hired Greenhill, a Wall Street investment bank, to prepare a presentation sent to every eligible television station in the country, encouraging them to sell their channels for some eye-popping proceeds:

(These numbers refer to full-power stations; in some markets there are also Class A stations, low-power stations that meet certain programming requirements. The estimated value of their spectrum is lower.)

In millions of dollars
MARKET Full-Power Stations
Maximum Median
New York $490 $410
Los Angeles $570 $340
Chicago $130 $120
Philadelphia $400 $230
Dallas-Fort Worth $67 $53
San Francisco-Oakland-San Jose $140 $110
Boston $140 $93
Washington, D.C. $140 $130
Atlanta $91 $65
Houston $52 $45
West Palm Beach $100 $93
Providence, R.I. $160 $110
Flint, Mich. $100 $45
Burlington, Vt. $58 $17
Youngstown, Ohio $95 $90
Palm Springs, Calif. $180 $100
Wilkes-Barre-Scranton $150 $140

Source: The FCC

 

getoffThere is so much money to be made buying and selling the public airwaves — at least twice as much as broadcasters originally anticipated– spectrum speculators have also jumped on board, snapping up low power television station construction permits and existing stations with hopes of selling them off the air in return for millions in compensation. Wireless customers are effectively footing the bill for the auction as wireless companies bid for the additional spectrum. Television stations will receive 85% of the proceeds, the FCC will keep 15%.

take the moneyMajor network-affiliated or owned stations in major cities are unlikely to take the deal. But in medium and smaller-sized markets where conglomerates own and operate most television stations, there is a greater chance some will be closed down, moved to a lower channel, or transferred to a digital sub-channel of a co-owned-and-operated station in the same city. The most  likely targets for shutdown will be independent, CW and MyNetworkTV affiliates. In smaller cities, multiple network affiliates owned by one company could be combined, relinquishing one or more channels in return for tens of millions in cash compensation.

In Los Angeles, the stakes are especially high with auction prices estimated at up to $570 million for a high-powered UHF station like KDOC-TV.

“There is some real money to be had,” Bert Ellis, chief executive of Ellis Communications, which owns KDOC-TV, told the Wall Street Journal. “I think every broadcaster should take a very close look at this.”

Estimates show at least 80 significant U.S. cities will likely lose one or more channels, especially when the bid price well exceeds the value of an independent, ethnic or religious station. Many of these will go dark, move to cable or a less desirable lower power VHF channel, or sign an agreement with a remaining station to carry its programming on a sub-channel.

The National Association of Broadcasters filed suit against the FCC’s auction in August. The NAB wants the FCC to guarantee that stations that wish to stay on the air will not have their coverage area reduced or forced to pay to move to a new channel number assigned by the FCC as the regulator “repacks” a much smaller UHF band.

“We’ve said from day one, if stations want to volunteer to go out of business, that’s their prerogative. But for those stations that choose to remain in business, they should be held harmless,” NAB spokesman Dennis Wharton said.

The spectrum auction is designed to address the wireless industry’s claim of a spectrum crisis, warning that if more frequencies are not found, wireless users will eventually see their service degraded.

T-Mobile: AT&T Gouges Us With Data Roaming Rates 150% Higher Than Average

bill shockT-Mobile has asked the Federal Communications Commission to investigate AT&T’s “artificially high roaming rates” charged when its customers travel outside of T-Mobile’s home service area.

T-Mobile is heavily reliant on AT&T for roaming service outside of major cities and the country’s smallest national wireless carrier complains AT&T is using their market power to put it at a major disadvantage, which could force new limits on roaming access in some areas.

T-Mobile provided examples of the damage already done by AT&T’s roaming rates:

“Limitless Mobile has severely restricted its customers’ access to AT&T’s network ‘for the sole reason that AT&T’s data roaming rates are too high and by continuing roaming access, Limitless could not maintain a commercially competitive retail wireless data offering to the general public,’” T-Mobile told the FCC.

The Rural Wireless Association noted that competing carriers “cannot sustain the provision of data roaming services if [they] must provide that service at a loss.”

The problem of data roaming rates is getting larger as carrier agreements are due for renewal at many mobile providers. Independent cellular companies are finding AT&T unwilling to renew at prices and terms comparable to their existing contracts. Instead, they face renewal rates that average a minimum of 10 and as much as 33 times higher than the national carriers’ retail rates.

For example, T-Mobile’s agreement with AT&T includes a data roaming rate that is now 150 percent higher than the average domestic rate that T-Mobile pays for data roaming.

This is one thousand percent higher than the data roaming rate negotiated between Leap Wireless and MetroPCS prior to their respective acquisitions, wrote T-Mobile.

With the stark price increases, carriers have begun imposing limits, including speed throttling and data caps, on customers when roaming on AT&T’s network.

t-mobile-set-recordBecause of AT&T’s artificially high roaming rates, T-Mobile wireless customers roaming in South Africa have a better user experience than customers roaming on AT&T’s network in South Dakota, argues T-Mobile. Their speed is twice as fast, and their data usage is unlimited.

T-Mobile is asking the FCC to intervene by establishing some type of standard about what constitutes “commercially reasonable” roaming rates as part of its 2011 Data Roaming Order, designed to protect competition.

This year, carriers dependent on Verizon Wireless or AT&T to help deliver “nationwide coverage” are negotiating roaming access to the companies’ 4G LTE networks for the first time. Most roaming agreements used to only cover 3G service, delivered at a slower speed.

If carriers like Sprint and T-Mobile are unable to negotiate fair terms, both companies will be at a major competitive disadvantage, relegated to providing only regional coverage or charging higher prices for roaming service.

AT&T vice president of regulatory affairs Joan Marsh said T-Mobile’s request bordered on being illegal, in direct violation of the Telecommunications Act. Marsh argued T-Mobile and other carriers should be incentivized to build their own networks instead of relying on cheap roaming access from companies like AT&T. Marsh added any move by the FCC to set rates or benchmarks would be beyond the FCC’s mandate. Wireless carrier rates are deregulated and not subject to common carrier regulation.

The Capitol Forum’s Insightful Review of the Comcast-Time Warner Merger Deal: A Tough Sell

be mineWall Street is increasingly pessimistic about Comcast and Time Warner Cable pulling off their merger deal as regulators stop the clock to take a closer look at the transaction.

The Capitol Forum, an in-depth news and analysis service dedicated to informing policymakers, investors, and industry stakeholders on how policy affects market competition, specializes in examining marketplace mergers and their potential impact on American consumers and the general economy. The group has shared a copy of their assessment — “Comcast/Time Warner Cable: A Closer Look at FCC, DOJ Decision Processes; Merits and Politics May Drive Merger Challenge, Especially as Wheeler Unlikely to Embrace Title II Regulation for Net Neutrality” — with Stop the Cap! and we’re sharing a summary of the report with our readers.

The two most important government agencies reviewing the merger proposal are the Federal Communications Commission and the Department of Justice. The FCC is responsible for overseeing telecommunications in the United States and is also tasked with reviewing telecom industry mergers to verify if they are in the public interest. The Department of Justice becomes involved in big mergers as well, concerned with compliance with antitrust and other laws.

In many instances, the two agencies work separately and independently to review merger proposals, but not so with Comcast and Time Warner Cable.

Sources tell Capitol Forum there is a high level of coordination and information sharing between DOJ and the FCC, potentially positioning the two agencies in a stronger legal position if they jointly challenge the merger. Readers may recall AT&T’s attempt to buy T-Mobile was thwarted in 2011 when the FCC followed the DOJ’s lead in jointly challenging the merger on competition and antitrust grounds. With a united front against the deal in Washington, AT&T quickly capitulated.

comcast cartoonDespite a blizzard of Comcast talking points claiming the cable industry is fiercely competitive, Capitol Forum’s report indicates the DOJ staff level believes the cable industry suffers dearly from a lack of competition already, and allowing further marketplace concentration would exacerbate an already difficult problem.

Capitol Forum reports the DOJ’s staff is inclined to “take an aggressive posture with regards to [antitrust] enforcement.”

The DOJ would certainly not be walking the beltway plank to its political doom if it ultimately decides to oppose the merger.

Few on Capitol Hill are likely to fiercely advocate for a cable company generally despised by their constituents. The Capitol Forum report notes that Comcast faces powerful opposition and its political support is overstated. Comcast’s lobbying efforts and ties to President Obama and several high level Democrats have also been widely exposed in the media, which makes it more difficult for D.C.’s powerful to be seen carrying Comcast’s water.

In fact, the report indicates a regulatory challenge against Comcast and Time Warner Cable would face considerably less political opposition than what the FCC faces if it reclassifies broadband as a “telecommunications service,” protecting Net Neutrality and exposing the industry to stronger regulatory oversight.

The report suggests FCC Chairman Thomas Wheeler, who seems intent on opposing reclassification of broadband under Title II, may appease his critics by taking a stronger stance on the Comcast/Time Warner deal instead.

Wheeler has already expressed concern about the state of competitiveness of American broadband. He considers providers capable of delivering at least 25Mbps part of broadband’s key market, which in many communities means a monopoly for the local cable operator.

Understanding “The Public Interest” and the Implications of a Combined Comcast/Time Warner Cable on Competition

comcastbuy_400_241The FCC will review the transaction pursuant to Sections 214 and 310(d) of the Communications Act of 1934, in order to ensure that “public interest, convenience, and necessity will be served thereby.”

The merger proposal must also demonstrate it does not violate antitrust laws.

It is here that merger opponents have a wealth of arguments to use against Comcast and Time Warner Cable.

Despite Comcast’s insistence the deal would have no competitive implications, the Capitol Forum reports the merger’s potential anticompetitive effects are “widely recognized and evidence from the investigation could provide DOJ and FCC with a solid foundation to challenge the merger.”

Although the two cable companies don’t directly compete with each other (itself a warning sign of an already noncompetitive marketplace), the report finds “a wide array of anti-competitive effects and several antitrust theories” that would implicate the cable company in a Clayton Act violation.

Comcast is betting heavily on its surface argument that by the very fact customers will not see any change in the number of competitors delivering service to their area, the merger should easily clear any antitrust hurdles. That argument makes it more difficult for the DOJ to fall back on the usual market concentration precedents that would prevent such a colossal merger deal. To argue excessive horizontal integration — the enlarging of Comcast’s territory — the DOJ would first have to prove Comcast’s size in comparison with other cable companies is a reason for the courts to shoot down the deal. Or it could bypass Comcast’s favorite argument and move to the issue of vertical integration — one company’s ability to control not just the pipes that deliver content, but also the content itself.

octopusHere the examples of potential abuse are plentiful:

  • Comcast would enjoy increased power to force cable programmers to favor Comcast in cable programming pricing and policies while allowing it to demand restrictions on competitive online video competitors or restrict access to popular cable programming;
  • Comcast could impose data caps and usage-based pricing to deter online viewing while exempting its own content by delivering it over a Wi-Fi enabled gateway, game console or set top box, claiming all are unrelated to Comcast’s broadband Internet service or network;
  • Force consumers to use Comcast set top boxes that would not support competing providers’ online video;
  • Use interconnection agreements as a clever way to bypass the paid prioritization Net Neutrality debate. Netflix and other content producers would be forced to compensate Comcast for reliable access to its broadband customers;
  • Noting AT&T has declared U-verse can not effectively succeed in the cable television business without combining its customer base with DirecTV to qualify for better volume discounts, there is clear evidence that a super-sized Comcast could command discounts new entrants like Google Fiber could never hope to get, putting them at a distinct price disadvantage.

The FCC’s scrutiny of Comcast’s merger deal has already uncovered evidence previously unavailable because of non-disclosure agreements which show Comcast’s heavy hand already at work.

The report notes Michael Mooney, a senior vice president and group general counsel at Level 3, told the Capitol Forum the dispute earlier this year between Netflix and Comcast could have been resolved in about five minutes had Comcast added a port to relieve congestion at an interconnection point. The cost? Just $5,000. Had Comcast been willing to spend the money, millions of Comcast customers would have never experienced problems using Netflix.

Whether Comcast is ultimately deemed too large to permit another consolidating merger or whether it is given conditional approval to absorb Time Warner Cable remains a close call, according to the Capitol Forum, despite the fact consumers have urged regulators for something slightly more concrete – a single sentence, total denial of its application.

http://www.phillipdampier.com/video/Capitol Forum The Consumer Welfare Test.mp4

The Capitol Forum broadly explores how the “consumer welfare standard” has become a part of the antitrust review process over the last 30 years. Sometimes, a strict antitrust test is not sufficient to protect “the public interest” of consumers, and allows the dominant player(s) to harm competition. In the digital economy, corporate mergers that empower companies to restrict innovation can prove far more damaging than classic monopoly abuse. (15:52)

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