Californians will have their chance to speak out about the proposed merger of Charter Communications and Time Warner Cable at a public hearing in Los Angeles tonight before an administrative law judge working for the California Public Utilities Commission (CPUC).

California will be the last major state capable of killing the transaction should the CPUC reject the merger on the grounds of it not being in the public interest. New York regulators approved the merger, but only with a lengthy list of conditions designed to improve service for New York residents.

Stop the Cap! will be represented at the hearing tonight by Matt Friedman, who will help us improve our vigilance of cable and phone companies serving the west coast. Friedman has done an incredible job exposing the sham of usage caps and compulsory usage-based pricing in his written testimony, which will be published here after being filed with the CPUC. As with most CPUC public hearings, we expect speakers will only be given a few minutes at most to state their views on the merger. As we did in New York, Stop the Cap! will oppose it on the grounds it is not in the public interest.

We remain suspicious about Charter’s commitment to not impose usage caps or usage pricing for only three years. Most consumers will not see much of a change in the broadband marketplace over the next few years. Charter can afford to wait 36 short months before potentially slapping on usage caps/billing — after winning additional regulatory approval to buy out even more companies. While the CEO of Time Warner Cable will walk away with over $100 million in golden parachute benefits if he successfully sells Time Warner Cable, we anticipate most customers will win a higher bill.

Friedman will share our ongoing concerns that Charter’s offer is less impressive than Time Warner Cable’s own Maxx upgrade initiative, which will deliver 300Mbps service for the price Time Warner Cable customers currently pay for 50Mbps. Time Warner Cable’s $14.99 budget Internet service is also on Charter’s chopping block, to be replaced with an entry-level tier offering 60Mbps for about $60 a month — four times more expensive. In short, the only honest reason to allow this deal to succeed is if we want to further enrich Time Warner Cable executives and shareholders while customers take all the risks of higher bills, worse service, and usage caps starting in 2019, with few if any other options.

Also planning to attend are Common Cause, Free Press, and the National Hispanic Media Coalition, which all argue allowing this deal to succeed sets up America for a national virtual duopoly between Comcast and Charter, with just two companies controlling the majority of broadband connections in the United States.

The CPUC could reject the merger outright or approve it, usually with conditions. While we remain opposed to the merger, should the CPUC ultimately make a different decision, we are advocating:

• A ban on compulsory usage caps or usage pricing. An affordable, unlimited option broadband tier should always be available, at prices comparable to what consumers pay today for Internet service.
• Charter should be forced to commit to upgrading its entire service area in California to an equal level of service offered by Time Warner Cable Maxx.
• Charter should be required to keep Time Warner Cable’s affordable, no-contract/no-requirement $14.99 Everyday Low Price Internet plan and boost its speed.
• Most-favored state status for California, automatically giving California consumers the benefits won from conditions imposed by regulators in other states.
• …and other consumer-targeted service improvements.

If you are in Los Angeles and want to attend or possibly share your own views with the CPUC, the hearing is open to the public:

Location: Junipero Serra State Office Building – Auditorium (Carmel Room)  — 320 West 4th Street, Los Angeles
Time: The meeting starts at 6:00pm

Frontier Communications is the obvious target of an effort by members of West Virginia’s House of Delegates to embarrass the company into providing at least 10Mbps broadband service or face steep penalties if it does not stop advertising slow speed DSL as “High-Speed Internet.”

State lawmakers continue to be flooded with complaints about the poor performance of Frontier Communications’ DSL service, which customers claim delivers slow speeds, unreliable service, or no service at all.

Although Frontier frequently advertises broadband speeds of 10Mbps or faster, customers often do not receive the advertised speeds, and the service can be so slow it will not work reliably with online video services.

West Virginia’s broadband problems remain so pervasive, the state legislature this year will entertain several broadband improvement measures, including a proposal to spend $72 million to build a publicly owned middle mile fiber optic network. The bill’s sponsor, Sen. Chris Walters (R-Putnam) claims the new fiber network would boost Internet speeds, improve service, and force down broadband pricing.

With cable broadband available only in major communities, much of West Virginia is dependent on DSL service from Frontier Communications, the telephone company serving most of the state. That is a unique situation for Frontier, which typically serves smaller and medium-sized cities in-between other communities serviced by larger providers like Verizon, AT&T, and Qwest/CenturyLink. Frontier’s problems meeting customer expectations have been well heard in Charleston, the state capitol, if only because most members of the state legislature have Frontier customers in their districts.

Legislators have found they have little recourse over a business that operates largely without regulation or government oversight, as Delegate John Shott (R-Mercer) told the Charleston Gazette. Shott heads the House Judiciary Committee and gets plenty of complaints from his constituents.

“[Customers] feel they never get the speed the Internet providers represent,” said Shott. “There doesn’t seem to be any recourse or regulatory body that has any ability to cause that to change.”

In the absence of regulation or direct oversight, a class action lawsuit on behalf of Frontier DSL customers in the state is still working its way through court. In December 2015, a separate action by West Virginia Attorney General Pat Morrisey resulted in a settlement agreement with Frontier. The company agreed to guarantee at least 6Mbps speeds for around 28,000 customers, or give them a substantial monthly discount off their broadband bill.

Shott’s bill, HB 2551, targets “unfair or deceptive acts or practices” of Internet Service Providers that advertise fast speeds but never deliver them. The bill would expose a violating ISP to damages up to $3,000 per customer, a $5,000 state fine, and allow customers to walk away from any outstanding balance or contract:

It is an unfair or deceptive act or practice and a violation of this article for any seller or Internet service provider to advertise or offer to provide “high speed Internet service” that is not at least ten megabytes per second.

If a seller or Internet service provider violates […] this section, the consumer has a cause of action to recover actual damages and, in addition, a right to recover from the violator a penalty in an amount, to be determined by the court, of not less than $100 nor more than $3,000. No action brought pursuant to this subsection may be brought more than two years after the date upon which the violation occurred or the due date of the last scheduled payment of the agreement, whichever is later.

If a seller or Internet service provider violates […] this section, any sale or contract for service is void and the consumer is not obligated to pay either the amount due, the amount paid or any late payment charge. If the consumer has paid any part of a bill or invoice, or of a late payment fee, he or she has a right to recover the payments from the violator or from any [collection agency] who undertakes direct collection of payments or enforcement of rights arising from the alleged debt.

The Attorney General of this state shall investigate all complaints alleging violations […] and has a right to recover from the violator a penalty in an amount, to be determined by the court, of not less than $500 nor more than $5,000 per violation, with each advertisement or contract to sell or provide “high speed Internet” being a separate violation. The Attorney General also has the power to seek injunctive relief.

As of today, the bill counts Delegates J. Nelson, Border, Kessinger, Arvon, Moffatt, A. Evans, Wagner, Cadle, and D. Evans as sponsors.

Delegate Shott

“The list of sponsors of this bill [HB 2551] are from a broad geographic area,” Shott told the newspaper. “They’ve identified this as a problem in their areas.”

Some legislators believe West Virginia should enforce the FCC’s latest minimum definition of broadband – 25Mbps, but the Gazette reports that kind of robust speed definition could be difficult for a DSL provider to achieve without significant additional investment. Some worry companies like Frontier could have difficulty justifying further rural broadband expansion in a state traditionally challenged by its number of rural areas and difficult terrain.

Despite those difficulties, incumbent providers like Frontier, Suddenlink, and Comcast have not appreciated efforts to help expand public broadband networks in the state, including the proposal outlined in Sen. Chris Walters’ SB 315, which would authorize about $72 million to build a public middle mile fiber network that would be offered to ISPs at wholesale rates.

Frontier strongly objects to the project because it would use public dollars to compete with private businesses like Frontier. The phone company’s opposition raised eyebrows among some in Charleston, who note Frontier had no objections to accepting $42 million in state dollars in 2010 to construct and install a fiber network it now operates for hundreds of public facilities across the state and $283 million in federal dollars to expand rural broadband. The 2010 fiber project was rife with accusations of waste, fraud, and abuse. Critics allege Frontier overcharged the state, installing service for $57,800 per mile despite other providers routinely charging about $30,000 a mile in West Virginia.

The West Virginia Cable Television Association, representing cable operators in the state, called the project a money-waster, noting it would not result in a single new hookup for broadband service. Middle mile networks do not reach individual homes and businesses and the bill does not authorize the state to get into the ISP business.

Sen. Walters

Much of the support for the public network comes from smaller ISPs like Citynet, which predominately serves commercial customers, and equipment vendors like Alpha Technologies. Walters believes if West Virginia builds the network, broadband providers will come to use it. The state’s dominant cable and phone companies vehemently disagree. The cable association has launched an all-out PR war, hoping to attract opposition from conservative lawmakers with claims the project will mandate state and local governments to buy Internet connectivity exclusively from the state-owned network and would trample on corporate rights by using eminent domain to seize parts of the cable industry’s fiber networks to complete the state network.

Walters brushed away the accusations, telling the Gazette there is no mandate that state agencies use the network and there are no plans for the government to take any fiber away from a private company.

Cable operators prefer an alternative measure also introduced in the West Virginia Senate. SB 16 would grant tax credits of up to $500 per address for any phone or cable company that agrees to wire a previously unserved rural address. The bill would limit total tax credits to $1 million.

The difference between the two measures? Walters’ bill would use public money to build a public broadband network owned by the public and answerable to the state. The cable industry-backed proposal would use public money in the form of tax offsets to wire homes and businesses to broadband owned by private businesses answerable to shareholders.

Overall submarine cable capacity, which supports a substantial amount of international Internet traffic, has grown around 36% per year for 2007-2014 and is expected to grow around 29% for 2014-2016. But traffic planners are confident the traffic growth will be easily accommodated over existing submarine cable circuits.

A new U.S. International Circuit Capacity Report from the International Bureau of the Federal Communications Commission details the total amount of capacity available between the U.S. and any foreign point. That data helps traffic planners maintain suitable Internet traffic capacity before international data traffic jams emerge. The report shows plenty of capacity remains available to handle sustained Internet traffic growth between North America and other countries around the world. Only the Pacific region, encompassing Australia and New Zealand, shows the potential for a future capacity crunch if more cable capacity isn’t introduced in the coming years.

Submarine cables laid more than a decade ago are showing vast capacity improvements, not because new fiber is being laid underwater, but because of developments in submarine cable technology.

“The technology standard has evolved from 280Mbps per pair (TAT-8 cable) in the mid-1980s, to 5Gbps (TPC-5) in the mid-1990s, to 10Gbps in 1998,” says the report. “Since 1998, the 10Gbps fiber pair has been the standard for all new cables. There are plans to deploy 40Gbps or even 100Gbps fiber pairs. Moreover, the use of Wavelength Division Multiplexing (WDM) technology can multiply the capacity from one pair to multiple pairs depending on the wavelength (or color) of the cable.”

One exceptional example comes from the Pacific region, where Internet traffic has exploded. The Southern Cross cable, which connects Australia, New Zealand, Fiji, Hawaii, and the United States, began service in 2000 offering a total capacity of 20Gbps. Those behind the project envisioned that technological advancements would eventually allow the cable to achieve a total of 120Gbps of “fully protected capacity.” They vastly underestimated what ingenuity in data transmission would bring just 16 years later.

Southern Cross engineers are now deploying circuits capable of 40 and 100Gbps technology, bringing Southern Cross cable’s total available capacity to more than 12Tbps (12,000Gbps). Every upgrade was conducted at the cable station with zero new fiber pairs laid in the water. Other undersea cable operators are initiating similar upgrades, providing exponentially greater capacity at a minimal cost.

The report found the most popular destination for U.S. international undersea cables was Colombia, which hosts eight. Japan and the United Kingdom are each reached by seven U.S. cables. Five cables each reach Panama, Brazil, and Venezuela, and Mexico and Australia have four each.

The most aggressive capacity upgrades are scheduled for the Atlantic region, mostly to support increasing traffic from Europe, the Middle East, and especially Africa. The Pacific region, in contrast, has just 13.3% non-activated capacity, possibly demonstrating a need for new cable capacity.

Sprint customers will once again have to endure service interruptions and disruptions and the possibility of degraded service after the cellular company quietly announced it was terminating leases with Crown Castle and American Tower — two of the largest owners of shared communications towers in the country, and relocating Sprint cell sites to government-owned property.

Sprint is aggressively pursuing a $2 billion cost-cutting program to stay competitive with T-Mobile, AT&T, and Verizon Wireless. Re/code reports much of this savings will come from rushing cellular antennas off shared-use cell towers and erecting antennas on public land instead, expected to cost much less. The move is “raising eyebrows” on Wall Street, as analysts grow concerned about Sprint’s exposure to early termination fees from the early end of multi-year contracts with at least two tower owners. Many are also concerned Sprint will end up placing towers in less than ideal areas, opening up coverage gaps and unanticipated negative coverage changes for customers.

Jennifer Fritzsche, senior analyst for Wells Fargo, predicts the move could “be a major step backwards on the recent progress [Sprint] has made” on its ‘brand repair’ efforts.

Sprint has been criticized for seemingly never-ending “network improvements” that have promised subscribers dramatically better service. Instead, many customers have defected to competitors like T-Mobile after their patience came to an end waiting for upgrades that never arrived. Sprint’s latest effort to save money could cost Sprint even more in additional customer defections if service deteriorates.

“Penny wise, pound foolish,” is the conclusion of wireless expert Roger Entner, an analyst for Recon Analytics. “Customers don’t like surprises.”

Customers in the eastern United States and in large cities are likely to be at risk for signal degradation, if only because the government owns much less land in these areas available for Sprint’s use.

Sprint also intends to abandon much of its fiber backhaul network, now owned primarily by AT&T and Verizon. Instead, Sprint will transition to microwave backhaul service between cell towers and its network connection points, for a potential savings of $1 billion annually. The microwave approach was last taken by Clearwire, which Sprint acquired in 2012. Few, if any carriers, are expected to follow Sprint’s footsteps.

One person familiar with the initiative, dubbed the Next Generation Network, predicted another wave of network hiccups, Re/code reported. The plan is likely to result in reduced coverage in rural areas and a lot of problems for current customers as Sprint embarks on its massive tower relocation project.

“Getting there is going to be a nightmare,” said the source, who requested anonymity because he is not authorized to speak about the matter. “It’s going to be very, very disruptive.”

A behind the scenes struggle between DISH Networks and Charter Communications over DISH’s online video service Sling TV has led to an admission by a Wall Street analyst that “usage-based billing” is an important tool for stifling over-the-top online video competition.

On Dec. 21, DISH’s legal team sent a letter to the FCC complaining about Charter’s attempts to “address” the competitive threat of Sling TV, DISH’s online video alternative to cable television.

“Charter’s laser-like focus on Sling TV shows that it views Sling TV as a serious competitive threat rather than a benign interest,” wrote DISH’s attorneys. “Charter is focused on protecting its video subscriber base rather than enhancing the broadband Internet experience for its subscribers. Charter’s documents further reveal thinly veiled complaints to programmers about making their programming available to Sling TV and other [online video] products.”

In the highly redacted filing, Dish suggested Charter was making thinly veiled threats to Disney and Scripps Networks over their willingness to allow their content to be included on Sling TV. DISH has complained to the FCC the cable company was attempting to undermine the new competitor.

A sample from DISH lawyer’s highly redacted submission to the FCC shows much of this fight is occurring out of public view.

On Thursday, the FCC also received an ex parte filing alerting the public that Time Warner (Entertainment) and HBO executives privately met with FCC staff last week, at their invitation, telling them Charter was likely threatening other programmers with unspecified action if they continued to allow their programming to appear on Sling TV.

In that meeting, HBO executives suggested “New Charter” — the combination of Charter Cable, Time Warner Cable, and Bright House Networks — “would be inclined to take action directed at programmers” if services like Sling TV continued to grow. Those threats seem to have been confirmed by Charter CEO Thomas Rutledge, who warned the company would take ‘competitive action’ against programmers selling content to the competition.

In the past, several cable executives have hinted that allowing wider distribution of cable networks over competitors’ networks or direct-to-consumer would dilute the value of those networks to cable operators. That would likely lead to demands for reduced prices when cable networks sought contract renewal. Some cable companies might also drop those networks altogether, arguing customers can get them elsewhere. Either retaliatory move would cut viewer numbers, which in turn would force networks to charge less for advertising.

That the FCC would invite further discussions on the issue of online video competition has some on Wall Street concerned about the prospects of Charter winning approval to buy Time Warner Cable and Bright House.

On Friday, BTIG analyst Richard Greenfield wrote investors, wondering if “we should be less confident in deal approval than we currently are.” With both the Justice Department and the Obama Administration pushing hard for competitive online alternatives to cable television, the FCC may be worried allowing New Charter to have 25-30 percent of the broadband market. With broadband a prerequisite for signing up for services like Sling TV, Rutledge’s “competitive action” could dissuade consumers from choosing online video instead of cable television.

New Street Research analyst Jonathan Chaplin admitted one of Charter’s strongest potential weapons against online video competitors is usage-based Internet billing. That Charter has committed to avoiding usage pricing for the next three years would seem to delay any attempt by Charter to deploy usage caps and usage pricing to stop online competition.

But three years may also not be long to wait, especially if the current “cap-free” commitment helps win merger approval. Chaplin believes Charter’s current commitment to not impose usage caps weakens DISH’s argument, but it could be the subject of special conditions from regulators if the deal is ultimately approved.

The topic appears to be sensitive enough to have provoked Charter to push back hard against DISH and Time Warner (Entertainment) in a blog post published last Friday afternoon.

We are happy to report that the vast majority of stakeholders are pleased with the merger and excited about New Charter.  It’s no surprise, though, that there are some who seek to use the regulatory review process to extract concessions or conditions that further their business goals.  Following the well-worn play book, to achieve that goal, they must first try to discredit the merger, but their allegations are often not based on the facts. For example, charges by Dish and Time Warner’s HBO that New Charter will harm Online Video Distributors simply do not make sense. As we have demonstrated, there is no more OVD-friendly provider than Charter, with our slowest speed at 60Mbps, no data caps, no usage-based billing, no annual contracts and no modem fees. Additionally, we’ve committed that New Charter will offering settlement-free peering to Internet companies, which means we will continue to invest in interconnection to avoid congestion. Netflix CEO Reed Hastings, a supporter of the transaction, stated “the key thing about the Charter deal is it’s all Internet companies that benefit — us, Hulu, Amazon, HBO Now — so that we can all compete for consumers’ affection.”