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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.

Comcast Bids $65 Billion in Cash to Acquire Fox Media Assets

(Reuters) – Comcast Corp offered $65 billion on Wednesday for 21st Century Fox’s media assets, emboldened by AT&T prevailing over the Trump administration’s attempt to block a merger with Time Warner, Inc..

The all-cash offer for Fox’s movie and TV studios and other assets including the X-Men franchise, opens a war with Walt Disney, which has bid $52 billion in stock. Comcast described the bid as 19 percent higher than Disney’s bid today. The transaction does not include the FOX television network, network owned-and-operated local television stations, or its cable news channels Fox News and Fox Business.

Comcast is expected to lead a wave of traditional media companies trying to combine distribution and production to compete with Netflix Inc and Alphabet Inc’s Google. The younger firms produce content, sell it online directly to consumers and often offer lucrative targeted advertising.

AT&T won a court victory over skeptical U.S. antitrust regulators on Tuesday when a federal judge allowed it to buy Time Warner for $85 billion, which was widely taken as a green light for Comcast to submit its expected bid.

Comcast may face more difficulty than AT&T and other would-be acquirers, though, since Comcast already has its own TV and movie studios in the NBC Universal division, a content overlap AT&T-Time Warner lacked.

Shares of Comcast, Fox and Disney were barely changed in after-hours trade.

Comcast in a statement outlined an offer that was similar to Disney’s, including a commitment to the same divestitures. It said that it would agree to litigate any action taken by the Justice Department to block the deal.

In a letter to the Fox board, Comcast chairman and CEO Brian Roberts said, “We are also highly confident that our proposed transaction will obtain all necessary regulatory approvals in a timely manner and that our transaction is as or more likely to receive regulatory approval than the Disney transaction.”

Justice Department lawyers who tried to stop AT&T’s $85 billion deal expect consumers will lose out as bigger companies raise prices, and some lawyers saw that as a concern in a Comcast-Fox deal which would put two movie studios and two major television brands under one roof.

“One cannot ignore the fact that there’s less independent content to go around,” after the AT&T deal, said Henry Su, an antitrust expert with Constantine Cannon LLP.

Still, the AT&T court fight gave Comcast valuable information about how to structure a Fox deal, said David Scharf, a litigation expert with Morrison Cohen.

“Any deal that’s coming down the pike that’s not baked yet knows the government’s playbook. They know what the government is concerned about,” he said. “They can learn how to structure a deal to make it more palatable.”

Disney itself has “surgically” structured a transaction that “might be doable,” avoiding Fox Broadcasting and big Fox sports channels, U.S. antitrust chief Makan Delrahim said last week.

Comcast may have a tough time winning over Fox’s largest shareholder, Rupert Murdoch’s family. They own a 17-percent stake and would face a multi-billion dollar capital gains tax bill if he accepted an all-cash offer from Comcast, tax experts have told Reuters.

Craig Moffett, an analyst with MoffettNathanson, said in a research note that Disney could prevail for other reasons.

“Disney has the superior balance sheet, cost of debt, equity and rationale to emerge victorious over Comcast in a bidding war,” Moffett said.

Reporting by Sheila Dang in New York and Diane Bartz in Washington; Additional reporting by Arjun Panchadar in Bengaluru; Writing by Peter Henderson; Editing by Maju Samuel and Lisa Shumaker.

CNBC reports Comcast has officially submitted its $65 billion all-cash offer to acquire assets of 21st Century Fox. Disney is also a contender and may respond by sweetening its own offer. (2:29)

AT&T/Time Warner: The Big Bundle is Back! Introducing the $522/Mo Telecom Bill

Phillip Dampier June 13, 2018 AT&T, Competition, Consumer News, Video 3 Comments

Your bundle is bigger than ever.

A-la-carte TV is still dead. Long live the super-sized bundle!

If AT&T and Time Warner wanted to deliver a message to the cable industry as a result of their now-approved blockbuster merger deal, it is one that promises hundreds, if not thousands of more TV channels, movies and shows headed your way in the coming days, bundled into super-sized pricier packages of television, telephone, and internet service.

Despite the fact consumers claim they want to pick and pay only for the entertainment options they specifically want, in reality people are paying for more bundled packages and services — usually from multiple online streaming services — than ever before, with no possibility they will ever watch everything these services have to offer.

AT&T and Time Warner are well aware customers are now subscribing to cable television -and- streaming video services like Hulu and Netflix. But many customers are also buying streaming live cable TV alternatives, despite the fact they already subscribe to a cable television package. Given the option of selling you an inexpensive package of a dozen cable channels you claim to want or selling you much larger and more expensive bundles of services many are actually buying, AT&T will follow the money every time.

What will be different as a result of this merger is where you buy that programming. Before, you may have purchased AT&T Fiber internet access, AT&T wireless mobile phone service, a HBO GO subscription through DirecTV Now, a cable TV alternative, and Netflix. Now, with the exception of Netflix, all of that money will go directly to AT&T. The company will also be able to enhance their bottom line by monetizing content viewed over mobile devices. After taking control of Time Warner’s vast entertainment offerings, which range from HBO to Turner Broadcasting networks like CNN and TNT, AT&T will generously bestow liberal (or possibly free) access to this content for its broadband and wireless customers, while those served by other providers will have to pay up to watch. AT&T will ultimately set the terms of its licensing agreements. AT&T Wireless customers with unlimited data plans already have a sample of this with a free year of DirecTV Now, which customers of other wireless companies have to pay to watch.

AT&T plans to offer the best deals to customers who bundle everything through AT&T. The “quad play” bundle of TV, internet, home phone, and wireless phone will offer customers discounts on each element of the package, but some may experience sticker shock even with the discounts.

The Wall Street Journal noted a premium AT&T customer could pay more than $500 a month for AT&T’s best package — that’s more than $6,000 a year. Most bundled AT&T customers will pay about half that — around $246 a month for a package of 100 Mbps internet, a home phone line, wireless phone and a limited TV package bundling Time Warner content, including HBO. The entry level ‘poverty’ package will still cost around $115 a month.

By controlling each element of the package, AT&T can discourage a-la-carte package pickers by substantially raising the price of standalone services, to encourage bundling. That explains why many customers take a promotional TV offer priced just $10-20 more than the $70 broadband-only package some customers start with. If broadband-only service costs $40 a month and the TV package also costs $40 a month, those leaning towards cord-cutting would find it much easier to pass on cable television.

With Comcast on the verge of picking up much of 21st Century Fox’s content library and studio, Comcast will be able to defend its own turf creating similar giant bundles of content to keep its customers happy. Wall Street is already putting pressure on Verizon to respond with an acquisition of its own to protect its base of FiOS and Verizon Wireless customers.

Companies likely left out in the cold of the next wave of media and entertainment consolidation include online content companies like Google, Facebook, Amazon, and Apple, which will be stuck licensing someone else’s content or bankrolling many more original productions. Charter Communications, which has a small deal with AMC for content, is also stranded, as are smaller cable companies like Cox, Altice, and Mediacom. Independent phone companies like CenturyLink, Windstream, Consolidated, and Frontier are also in a bad position if Wall Street determines telecom companies without content divisions are in serious trouble.

Netflix stands alone as the behemoth content company, and is not likely to be impacted by the current wave of consolidation. Hulu will most likely end up in the hands of a telephone or cable company, most likely Comcast, if it successfully acquires Fox’s ownership share of Hulu.

For customers, your future choice of provider is about to get more complicated. In addition to pondering speed tiers and wireless coverage maps, you will also have to decide what content packages are the most valuable. Your choices will range from basic company-owned networks to third-party services like Netflix and Hulu, as well as full cable TV lineups ranging from DirecTV Now to XFINITY TV. Then get ready for the bill, which will likely include charges for most, if not all, of these services.

The Wall Street Journal explains the current wave of media consolidation. (2:44)

AT&T/Time Warner Win Merger Deal With No Consumer Protection Conditions

AT&T has won its $85 billion bid to acquire Time Warner, Inc., overturning Justice Department opposition in a court case and completely rejecting allegations the merger was anti-consumer and would raise prices by suppressing competition. The favorable decision is expected to signal the business community the time is right for several more multi-billion dollar media mergers.

U.S. District Court Judge Richard Leon ruled the deal can proceed without any consumer-protecting deal conditions, and warned Department of Justice lawyers not to appeal if the purpose was to stymie the deal from closing before the companies’ agreed on deal expiration date runs out, saying it would be “manifestly unjust” and damaging to the faith of America’s shareholders and business community.

Leon read his decision to a packed courtroom, telling the government’s lawyers they had failed to prove their case the merger would harm consumers. Observers called it one of the worst antitrust court losses the Justice Department has faced in its history.

“Today is a bad day for all internet users and media consumers,” said Free Press policy director Matt Wood. “The Justice Department’s failure to bring a winnable case will now set off a wave of communications and media consolidation that was unthinkable even a few years ago. All of us, regardless of our broadband carrier and no matter what we watch, are about to see higher bills, fewer choices, worse quality for competing options and a further erosion of our privacy rights.”

During a six-week trial held this spring, the government argued AT&T’s combination of DirecTV’s 20 million subscribers with its own U-verse TV customers, and its ownership of Time Warner’s pay television networks including HBO and Cinemax and Turner Broadcasting’s news, entertainment, and sports networks, would give the phone company too much power, allowing AT&T to unfairly raise prices for competing cable, satellite, and online streaming companies. AT&T acquired DirecTV in 2015, but regulators were already concerned about AT&T’s size, only approving the transaction with deal conditions.

AT&T argued it was willing to offer arbitration to make sure its competitors received fair deals, and volunteered to not cut off TV networks from customers during arbitration proceedings to resolve contract renewal disputes.

The decision has dramatic implications far beyond the merger at hand. Waiting in the wings are other media companies, Wall Street bankers, and advisers waiting to begin a frenzy of other blockbuster merger deals. Had the court blocked the merger, it would send a strong signal that the Justice Department’s case against vertical integration mergers — when companies buy other companies they do business with — has standing. The total defeat of the Justice Department in today’s decision may make government lawyers hesitant to challenge future vertical integration deals.

Comcast’s all-cash offer for a large part of 21st Century Fox is likely to proceed now that the AT&T-Time Warner merger was approved. More telecom industry deals are expected to emerge later this year.

The Trump Administration’s choice to oversee antitrust cases — Makan Delrahim, sent signals to Wall Street that he is still inclined to be pro-business on merger transactions, telling reporters most proposed transactions were either good for consumers or neutral — a view consumer advocates generally oppose.

“I understand that some journalists and observers have recently expressed concern that the antitrust division no longer believes that vertical mergers can be efficient and beneficial to competition and consumers,” Delrahim said. “Rest assured these concerns are misplaced.”

If the merger is completed, AT&T will now be the country’s largest pay-TV distributor, controlling more than a dozen “must-have” TV networks that competitors cannot afford to be without. The deal will even affect the wireless industry’s competitive landscape. AT&T’s unlimited wireless customers are expected to be given exclusive free access to a bundle of channels filled with Time Warner-owned content.

Spectrum Ditching Usage Measurement Meter Tool in July; Usage Caps Not in the Cards

Charter Communications is abandoning any pretense of data caps on its internet service by decommissioning its internet usage measurement tool for residential subscribers effective this July.

Company officials began notifying customers in billing statements that the usage measurement tool will be dropped effective next month. Charter Communications markets Spectrum internet service as free of any data caps, and a usage measurement system only confused customers about whether their internet usage was truly unlimited.

Originally introduced by Time Warner Cable in late 2009 and gradually made available to customers nationwide, the usage measurement tool reported monthly data usage for customers as part of Time Warner Cable’s original 2008 market test of data caps in Beaumont, Tex.

Customers were offered a Lite Tier with a 5 GB monthly cap or 40 GB of usage for the company’s Turbo Tier. Overlimit fees were $1/GB.

The company attempted to expand its data cap trial in the spring of 2009 to customers in Austin and San Antonio, Tex., Rochester, N.Y., and the Triad region of North Carolina. A major backlash, organized in part by Stop the Cap!, resulted in those market trials being abandoned within two weeks of being announced.

Time Warner Cable never attempted to impose compulsory data caps again after its disastrous 2009 trial and Charter Communications quietly abandoned its own frequently unenforced usage caps in 2015, shortly before bidding to acquire Time Warner Cable and Bright House Networks.

By ditching the usage measurement tool, Spectrum will retire the last remaining elements of Time Warner Cable’s legacy of dabbling with usage caps and further monetizing internet usage.

Charter is also forbidden from imposing data caps for up to seven years as a result of deal conditions imposed by regulators in return for approval of its merger with TWC and BH.

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  • 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...
  • New Yorker: Will New York go through with the threat? As an upstater I have seen infrastructure projects drag on in cost and time (eg. 1.5 yrs to repair a tiny b...
  • Matthew H Mosher: Another classic case of businesses being much smarter than governments....
  • Matthew H Mosher: Doesn't matter. Rural NY will remain left behind....
  • Dylan: Hopefully this does not happen as I would like to see Charter continue with its current plans of upgrades in NY, like the 200mbps upgrade. Maybe Chart...
  • Phillip Dampier: If they withdraw the granted merger, Spectrum will not be able to continue business in New York. The franchises, which are still in the name of Time W...
  • John: Charter will not pack it in, the regionality of their franchises and their future value are too important. Franchises in NY are not exclusive, the onl...
  • Fred Hall: Too bad Sprint's network sucks in 99% of the places I live/travel to....
  • Fred Hall: First - as I've said before, $2M is pocket change for Charter/Spectrum. They should just chalk it up to the cost of doing business. Second - so what...
  • Paul Houle: I think the third package was designed to pop eyes. First it is closer to a "quad play" than a triple play bundle. The "triple play" bundle of home ...
  • Phillip Dampier: $40-50 sounds suspiciously low. Are you sure that isn't a promotional rate which customers may not be able to get after a year or two? AT&T's bun...

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