Should this merger be approved, Comcast will control 40-50 percent of all broadband access nationwide.[1] That offers Comcast market power that can be used to discriminate against others.

Comcast’s recent past contains several disturbing incidents that came as a result of its market power and its vast resources to influence telecommunications public policy debates:

• In 2008, Comcast admitted to paying homeless people in Boston to pack an FCC meeting on Net Neutrality, keeping company critics out of the room.[2]
• The company that now promises to abide voluntarily to Net Neutrality regulations is also one of the few found culpable for violating the principle. In mid-2008, the FCC ruled that Comcast’s policy of interfering with peer-to-peer file traffic was a violation of Net Neutrality rules. When customers found out, the company voluntarily ended the speed throttling, imposing usage caps instead.[3]
• This month, Comcast reportedly stepped in and ordered the removal of news content critical of its Net Neutrality policies from a publication in which it has an ownership interest.[4]
• In May 2011, a Comcast manager threatened to pull funding from a Seattle-based media advocacy group that criticized the company for hiring a former Republican FCC official, Meredith Attwell Baker, just after she supported the NBC Universal deal.[5]
• Comcast has aggressively pursued agreements with over-the-top (online video) competitors that effectively force them to sign special connection agreements that mitigate the deteriorating quality of streamed video Comcast customers receive from services like Netflix.[6] Comcast’s size gives it de facto control over its customers’ online experiences.

While we note Comcast has agreed to temporarily abide by Net Neutrality principles, the Commission should know Comcast has a long record lobbying against Net Neutrality on philosophical grounds.[7]

Comcast agreed to abide by Net Neutrality principles as a condition to win approval of its acquisition of NBCUniversal, approved by the FCC in 2011. But as Brian Fung from the Washington Post noted, its agreement with the government will expire just four years from now[8]:

But what Comcast doesn’t say is that its commitment to “full” net neutrality expires in 2018. After that, it will no longer be legally bound to follow the 2010 rules, and it’ll be free to abandon that commitment literally overnight.

Just one year earlier, Comcast was before the United States Court of Appeals – D.C. Circuit suing the FCC over its authority to enforce Net Neutrality policies. Comcast won its suit.[9]

If Comcast now feels favorable towards Net Neutrality, it should voluntarily agree to abide by its guiding principles in perpetuity.

—

[1]http://www.broadcastingcable.com/news/washington/judiciary-raises-programming-broadband-control-issues-comcasttwc/130396

[2]http://www.adweek.com/digital/homeless-comcast-will-pay-to-attend-fcc-hearings/?red=ny

[3]https://www.dailydot.com/layer8/net-neutrality-violations-history/

[4]http://www.republicreport.org/2014/comcast-affiliated-newsite-censored-my-article-about-net-neutrality-lobbying/

[5]https://www.washingtonpost.com/blogs/post-tech/post/comcast-yanks-funds-for-nonprofit-after-tweet-about-fcc-bakers-jump/2011/05/19/AF7aGG7G_blog.html

[6]http://dr.marketwatch.com/dr/

[7]http://dr.marketwatch.com/dr/

[8]https://www.techdirt.com/articles/20140724/13525627992/comcast-ramps-up-ad-campaign-claiming-to-support-net-neutrality-even-as-it-really-supports-killing-it.shtml

[9]https://www.cadc.uscourts.gov/internet/opinions.nsf/EA10373FA9C20DEA85257807005BD63F/$file/08-1291-1238302.pdf

When the community of Batavia, Ill., a distant suburb of Chicago, decided they wanted something better than the poor broadband offered by Comcast and what is today AT&T, it decided to hold a public referendum on whether the town should construct and run its own fiber to the home network for the benefit of area residents and businesses. A local community group, Fiber for Our Future, put up $4,325 to promote the initiative back in 2004, if only because the town obviously couldn’t spend tax dollars to advertise or promote the idea itself.

Within weeks of the announced proposal, both Comcast and SBC Communications (which later acquired AT&T) launched an all-out war on the idea of fiber to the home service, mass mailing flyers attacking the proposal to area residents and paying for push polling operations that asked area residents questions like, “should tax money be allowed to provide pornographic movies for residents?” The predictable opposition measured in response to questions like that later appeared in mysterious opinion pieces published in area newspapers submitted by the incumbent companies and their allies.

Comcast spent $89,740 trying to defeat the measure in a community of just 26,000 people. SBC spent $192,324 — almost $3.50 per resident by Comcast and just shy of $7.50 per resident by SBC. Much the same happened in the neighboring communities of St. Charles and Geneva. 

According to Motherboard, the scare tactics worked, cutting support for the fiber network from over 72 percent to its eventual defeat in two separate referendums, leaving most of Batavia with 3Mbps DSL from SBC or an average of 6Mbps from Comcast.

Much of the blizzard of mailers and brochures Comcast and SBC mailed out were part of a coordinated disinformation campaign. Both companies also knew their claims would go largely unchallenged because Fiber for Our Future and other fiber proponents lacked the funding to respond with fact check pieces of their own mailed to residents to expose the distortions.

When it was all over, it was back to business as usual with Comcast and SBC. The latter defended its reputation after complaints soared about its inadequate broadband speeds.

Kirk Brannock, then midwest networking president for SBC, told city council members in the area that “fiber is an unproven technology.”

“What are you going to do with 20Mbps? It’s like having an Indy race car and you don’t have the racetrack to drive it on. We are going to be offering 3Mbps. Most users won’t use that,” he said.

“All the subscribers got these extraordinary fliers. Ghosts, goblins, witches. I mean, this is about a broadband utility. Very scary stuff. This is real. This is comical, but this is very real,” Catharine Rice of the Coalition for Local Internet Choice said of the fliers at an event discussing municipal fiber earlier this year. “They have this amazing picture, and then they lie about what happened. They’re piling in facts that aren’t true.”

In communities that won approval for construction of publicly-owned fiber networks, the battle wasn’t over. Tennessee’s large state cable lobbying group unsuccessfully sued EPB to keep it out of the fiber business. In North Carolina, Time Warner Cable effectively wrote legislation introduced and passed by the Republican-dominated General Assembly that forbade community broadband expansion and made constructing new networks nearly impossible. In Ohio, another cable industry-sponsored piece of legislation destroyed the business plan of Lebanon’s fiber network, forcing the community to eventually sell the network at a loss to Cincinnati Bell.

The larger Comcast grows, the more financial resources it can bring to bare against any would-be competitors. Even in 2004, the company was large enough to force would-be community competitors to steer clear and stay out of its territory.

 

Albanians no longer have to watch usage meters while browsing the Internet and downloading movies and music. The country’s largest ISP – ABCom – has eliminated data caps on all but its cheapest broadband plans (4Mbps service with a 2GB cap: $4.81 for 15 days or 4Mbps service with a 5GB cap: $9.69 for 30 days). Now residents of Tirana, Durrës, Shkodër, Elbasan, Vlorë, and Gjirokastër can browse the Internet at self-selected speeds between 1-100Mbps with no usage-based billing or fixed caps.

It is remarkable progress for Europe’s poorest country. For much of the 20th century, Albania was infamous for its oppressive Communist dictatorship under the leadership of Enver Hoxha, a man who felt Stalin was the Soviet Union’s last true Communist leader and who courted and later cut ties with both the U.S.S.R. and the People’s Republic of China over what he called their “revisionist Marxist-Leninist” policies that betrayed true socialism. Hoxha’s idea of a worker’s paradise was to force huge numbers of both blue and white color workers into the fields every summer to help harvest the country’s strawberry crop.

During Hoxha’s 40 years in power, telecommunications for most Albanians consisted of a portable radio (and occasionally an imported television). Only 1.4 out of 100 had basic telephone service. If more wanted it, they could not get it. A long waiting list guaranteed an installation date years in the future. Albania began its transformation into a democracy with just 42,000 telephone lines, despite a population of nearly three million.

After the Communist government fell in 1991, life changed little in rural Albania. Peasants found initiatives to improve rural telephone service so irrelevant they knocked out service to about 1,000 villages after commandeering telephone wire to build fences to keep their sheep herds from straying. Even in the capital city Tirana, telecommunications infrastructure was decrepit at best. Even the wealthiest Albanians had to contend with rotary dial telephones produced in a forgotten factory in Bulgaria or Romania. Many preferred refurbished telephones rebuilt with scrap parts obtained from Italy.

Today, like many other countries lacking wired infrastructure, Albanians depend mostly on their cell phones to communicate. In 2012, there were 312,000 landlines in use, but 3.5 million cell phones were active. More than a half million wireless users rely entirely on their phones for Internet access.

In 1998, ABCom launched its Internet Service Provider business, initially selling DSL and wireless broadband. With Albania’s economy always in difficulty, the country chose the cheaper path followed by North America — adopting Hybrid Fiber-Coax (HFC) network technology instead of fiber to the home, common elsewhere in southern Europe. HFC Internet access is better known by most of us as broadband from our local cable company. Expansion of wired broadband has been very slow in Albania. The concept of delivering television, broadband, and phone service over ABCom’s cable system in a triple play package only began in 2009.

The biggest attractions to wired broadband include no data caps and more reliable fixed broadband speeds the country’s wireless providers cannot deliver. Because of wide income disparity, ABCom offers a large range of speed plans for different budgets: 1, 2, 4, 8, 12, 30, and 100Mbps.

In response, competition from wireless providers has stepped up recently. Vodafone Albania is offering five mobile Internet options for users of its 3G network. Customers can opt to pay for daily, weekly or monthly bundles. The 40MB daily bundle costs $0.58; the 250MB weekly bundle costs $2.91; the 500MB monthly bundle costs $4.85, and the 1GB monthly bundle costs $7.76. The speeds are much slower than the plans offered by ABCom, however.

[flv]http://www.phillipdampier.com/video/ABCom Mesazh Promocional nga ABCom March 2013.mp4[/flv]

ABCom produced this television ad introducing its new triple play TV, broadband, and telephone package for Albanian customers. (Albanian) (0:31)

For the benefit of new visitors, text items in bold are clickable links. A complete video from this event will be posted as soon as possible.

Good evening. My name is Phillip Dampier from Stop the Cap!, a Rochester-based all-volunteer consumer group fighting for better broadband service and against Internet usage caps.

This is a critical moment for New York. The Internet has become a necessity for most of us and the future is largely in the hands of one company capable of delivering 21st century broadband to the majority of upstate New York. That company isn’t Verizon, which has ended FiOS fiber expansion while abandoning most of its upstate customers with slow speed DSL. Indeed, as their market share will attest, our broadband future is held in the hands of Time Warner Cable.

Comcast could have become a big player in New York had it chosen to compete head to head with Time Warner. But large cable operators avoid that kind of competition, preferring comfortable fiefdoms that only change hands at the whim of the companies involved. As local officials from across New York have already discovered, no major cable operator will compete for an expiring franchise currently held by another major cable operator.

Ironically, Comcast is using that fact in its favor, noting that since neither company competes directly with the other, making Comcast larger has no impact on competition. But that should hardly be the only test.

At issue is whether this merger is in the public interest. This year, for the first time in a long time, the rules have changed in New York. In the past, the Commission had to prove the merger was not in the best interests of New Yorkers. Now the onus is on Comcast to prove it is. It has fallen far short of meeting that burden.

Let’s start with Comcast’s dysfunctional relationship with its customers. With more than 75 citizen comments filed with the Commission so far. Comcast’s reputation clearly precedes it. The consensus view is perhaps best represented by one exasperated Clinton-area resident who wrote, I quote, “No. No no no. HELL no.”

That kind of reaction is unsurprising considering Consumer Reports ranked Comcast 15th out of 17 large cable companies and called their Internet service and customer relations mediocre. Every year since 2007, Comcast’s CEO acknowledges the problems with customer service and promises to do better. Seven years later, the American Customer Satisfaction Index reports absolutely no measurable improvement. In fact, ACSI has concluded Comcast had the worst customer satisfaction rating of any company or government agency in the country, including the IRS.

In order to sell this $45 billion boondoggle to a skeptical public, Comcast has hired 76 lobbyists from 24 different firms and will reportedly spend millions trying to convince regulators and our elected leaders this deal is good for New York. If the deal gets done, Comcast’s biggest spending spree won’t be on behalf of its customers. Instead, Comcast has announced a $17 billion share buyback to benefit their shareholders. Imagine if this money was instead spent on improving customer service and selling a better product at a lower price.

The only suitable response to this merger deal is its outright rejection. Some may recommend imposing a handful of temporary conditions in return for approval – like the kind Sen. Al Franken accused Comcast of reneging on after its earlier merger with NBCUniversal. But this is one of those cases where you just can’t fit a round peg into a square deal for consumers, no matter how hard you try.

With respect to television, volume discounts have a huge impact on cable programming costs and competition. The biggest players get the best discounts, smaller ones are stunned by programming rate hikes and new competitors think twice about getting into the business.

AT&T said last week its 5.7 million customer U-verse television service was too small to get the kind of discounts its cable and satellite competitors receive. AT&T’s solution is to buy DirecTV, which might be good for AT&T but is bad for competition.

Frontier Communications has also felt the volume discount sting after adopting several Verizon FiOS franchises. When it lost Verizon’s volume discounts, Frontier began a relentless marketing effort to convince its customers to abandon FiOS TV and switch to technically inferior satellite TV.

Combining Comcast and Time Warner Cable will indeed help Comcast secure better deals from major programmers (including Comcast itself). But Comcast is already on record warning those savings won’t be shared with customers.

Comcast’s executive vice president David Cohen summed it up best: “We are certainly not promising that customer bills will go down or increase less rapidly.”

Is that in the public interest?

Comcast suggests this merger will make its cable television market share no larger than it had in 2002 when it bought the assets of AT&T Cable. But this is 2014 and cable television is increasingly no longer the industry’s biggest breadwinner. Broadband is, and post-merger Comcast will control 40-50 percent of the Internet access market nationwide.

So what do Time Warner Cable customers get if Comcast takes over? A higher bill and worse service.

Several months before Comcast sought this merger, Time Warner announced a series of major upgrades under an initiative called TWC Maxx. Over the next two years, Time Warner Cable plans to more than triple the Internet speeds customers get now at no additional charge. Those upgrades are already available in parts of New York City, Los Angeles, and Austin.

A Time Warner Cable customer in Queens used to pay $57.99 for 15 megabit broadband. As of last month, for the same price, they get 50 megabits.

In contrast, Comcast’s Internet Plus plan delivers just 25 megabits and costs $69.95 a month – nearly $12 more for half the speed. Who has the better broadband at a better price? Time Warner Cable.

New York State’s digital economy depends on Internet innovation, which means some customers need faster speeds than others. Time Warner Cable’s Maxx initiative already delivers far superior speeds than what Comcast offers, despite claims from Comcast this merger would deliver New York a broadband upgrade.

Time Warner’s new top of the line Internet service, Ultimate 300 (formerly Ultimate 50), delivers 300 megabit service for $74.99 a month. Comcast’s top cable broadband offer listed on their website is Extreme 105, offering 105 megabit speeds at prices ranging from $99.95 to $114.95.

Is the public interest better served with 300 megabits for $74.99 from Time Warner Cable or paying almost $40 more for one-third of that speed from Comcast? Again, Time Warner Cable has the better deal for customers.

But the charges keep coming.

At least 90 percent of cable customers lease their cable modem from the cable company, and Comcast charges one of the highest lease rates in the industry – $8 a month. Time Warner Cable charges just under $6.

So I ask again, is this merger really in the public interest when broadband customers will be expected to pay more for less service?

Then there is the issue of usage caps, a creative way to put a toll on innovation. Usage caps make high bandwidth applications of the future untenable while also protecting cable television revenue.

If the PSC approves this transaction, the vast majority of New York will live under Comcast’s returning usage cap regime. There is simply no justification for usage limits on residential broadband service, particularly from a company as profitable as Comcast. Verizon FiOS does not have caps. Neither does Cablevision. But the majority of upstate New Yorkers won’t have the option of choosing either.

In 2009, Time Warner Cable lived through a two week public relations nightmare when they attempted an experiment with compulsory usage caps on customers in Rochester. After Stop the Cap! pushed back, then CEO Glenn Britt shelved the idea. Britt would later emphasize he now believed Time Warner should always have an unlimited use tier available for customers who want it.

Whether intended or not, Time Warner actually proved that was the right idea. In early 2012, the company introduced optional usage caps in return for discounts. They quickly discovered customers have no interest in having their Internet usage measured and limited, even for a discount. Out of 11 million Time Warner Cable broadband customers, only a few thousand have been convinced to enroll.

Comcast doesn’t give customers a choice. In 2008, a strict 250GB usage cap was imposed on all residential customers with disconnect threats for violators. Since announcing it would re-evaluate that cap in May 2012, it now appears Comcast has settled on a new residential 300GB usage allowance gradually being reintroduced in Comcast service areas starting in southern U.S. markets.

Comcast executive vice president David Cohen cutely calls them “usage thresholds.” At Stop the Cap! we call it Internet Overcharging.

Cohen predicts Comcast will have broadband usage thresholds imposed on every city they serve within five years. Whether you call it a cap or a threshold, it is in fact a limit on how much Internet service you can consume without risking overlimit fees of $10 for each 50GB increment over your allowance.

Unlike Time Warner Cable, Comcast isn’t offering a discount with its usage cap, so those who use less will still pay the same they always have, proving again that usage caps don’t save customers money. (See below for clarification)

At the end of May I watched CNBC interview Comcast CEO Brian Roberts who implied during a discussion about Comcast’s usage caps that usage growth was impinging on the viability of its broadband business. Moments later, Time Warner Cable ran an ad emphasizing its broadband service has no usage caps. Both companies are making plenty of money from broadband.

This merger is bad news for customers faced with Comcast’s legendary bad service, its forthcoming usage caps, or the higher prices it charges. Even promised innovations like their much touted X1 set top platform comes with a gotcha Comcast routinely forgets to mention. Customers have to pay a $99 installation fee.

Stop the Cap! will submit a more comprehensive filing with the PSC outlining all of our objections to this merger, and there are several more. We invite anyone in the audience to visit stopthecap.com for this and other matters related to cable television and broadband. We appreciate being invited to share our views with the Commission and hope to bring a consumer perspective to this important development in our shared telecommunications future. I’d be happy to answer any questions you might have.

[flv]http://www.phillipdampier.com/video/TWC News Hearing on Comcast 6-16-14.mp4[/flv]

Time Warner Cable News covered the Public Service Commission hearing in Buffalo, which included testimony from Stop the Cap!’s Phillip Dampier. Also appearing was a representative from the National Black Chamber of Commerce advocating that telecom companies merge as fast as possible. The Chamber has received significant support from Comcast for several years now and representatives routinely testify in favor of Comcast’s business initiatives. (2:30)

Clarification: Comcast has different trials in different cities:

Nashville, Tennessee: 300 GB per month with $10/50GB overlimit fee;

Tucson, Arizona: Economy Plus through Performance XFINITY Internet tiers: 300 GB. Blast! Internet tier: 350 GB; Extreme 50 customers: 450 GB; Extreme 105: 600 GB. $10/50GB overlimit fee;

Huntsville and Mobile, Alabama; Atlanta, Augusta and Savannah, Georgia; Central Kentucky; Maine; Jackson, Mississippi; Knoxville and Memphis, Tennessee and Charleston, South Carolina: 300 GB per month with $10/50GB; XFINITY Internet Economy Plus customers can choose to enroll in the Flexible-Data Option to receive a $5.00 credit on their monthly bill and reduce their data usage plan from 300 GB to 5 GB. If customers choose this option and use more than 5 GB of data in any given month, they will not receive the $5.00 credit and will be charged an additional $1.00 for each gigabyte of data used over the 5 GB included in the Flexible-Data Option;

Fresno, California, Economy Plus customers also have the option of enrolling in the Flexible-Data Option.

Comcast suggested customers can enroll in a cheaper usage plan in some of these markets. Yes they can, but only if they downgrade to Economy Plus service which offers speeds only up to 3Mbps. Their $5 discount is not available on any other plan.

Without independent verification by an unbiased third-party, providers’ usage meters can measure any amount of usage — correct or not — with no recourse for those facing overlimit fees or service suspension.

That is why companies like Comcast depend on the patina of credibility a third-party company can offer when certifying Internet traffic measurement tools as accurate, even if that company has a vested interest handing Comcast the results it wants to see.

NetForecast just completed its third paid study of Comcast’s Internet meter declaring it amazingly accurate with an error rate of just -0.75 to 0.36%.

NetForecast claims it performed independent traffic measurements using real user traffic in subscribers’ homes as well as its own in-house PC and server.

“Based on our measurement results, Comcast subscribers should be able to rely on Comcast’s meter accuracy,” NetForecast says.

Comcast subscribers should also be able to rely on the fact that any cable company that involved with its usage measurement meter has a clear agenda to use it as part of a nationwide return to usage caps or usage-based billing.

NetForecast is no substitute for utilizing a financially uninvolved third-party to oversee any measurement tool that could expose customers to additional charges.

The country has been through this before.

Offices of Weights and Measures represent one of the country’s oldest efforts at consumer protection and trace their origins to the Code of Hammurabi, the Magna Carta and the United States Constitution. Most states created their own bureau to verify all sorts of measurement tools from scales to gas pumps in the early 1900s after an epidemic of widespread fraud shortchanged citizens.

By 1910, the California Legislature was engaged in a battle with the railroads over the accuracy of scales used to weigh railway cars. Railroad tariffs for hauling goods were based on the weight or measurement of the commodity carried. The railroad industry occasionally hired so-called “independent” third parties to certify the accuracy of railway scales to fend off government regulation and oversight after reports of widespread fraud reached the legislature. It didn’t solve the problem.

In 1920, 52.4% of railroad scales, including those “certified” accurate were found to be well out of tolerance. When the industry knew the state of California’s Office of State Superintendent of Weights and Measures would oversee testing a year later, every scale tested in 1921 was suddenly accurate within tolerance.

The problem of accurate measurement was not limited to the railroads. Californian cattle and livestock ranchers faced dishonest hay balers that ginned up the cost of hay by sneaking in heavy debris like rocks and using inaccurate scales to charge higher prices. The 1919 Hay Baling Act was passed to ensure accuracy in the sale of hay and to stop the fraud and abuse the hay balers denied ever existed.

In Maryland, the fraud came from scales used by grocers and gas pumps — both rigged by their respective owners to deliver bigger profits at the consumer’s expense.

In the 1971 Report of the 56th National Conference on Weights and Measures, E.E. Wolski, manager of quality control at the Colgate-Palmolive Company considered it unthinkable that anyone other than a truly independent, financially uninvolved third-party should monitor the accuracy of measurement tools.

“I do not think anyone will be so naïve as to even suggest that an elimination or reduction of inspection or enforcement would result in anything other than a return to the situation which made the need for them so apparent,” said Wolski. “It is a well-known fact that where enforcement drops off, so does compliance.”

In one state where private companies were permitted to self-certify, inaccuracy turned out to be rampant.

“I was informed that the average gallon was about a half pint short and that an average pound had been a little less than an ounce short,” Wolski said. “The shortages had been statewide and were almost universal.”

The state-employed director that finally established independent oversight of weights and measurements in light of the widespread fraud Wolski talked about was firm in his conclusion that “everybody, literally everybody (and that includes you and me), needs to know that someone is there watching what he does.”

Any financial interest in the outcome of a weight or measurement involving money is a temptation to cheat consumers, one that has effectively only been tempered all the way back to the days of King Solomon by truly independent oversight, typically by a state or local authority. That authority is on display today in the form of a compliance sticker found on commercial scales, gas pumps, and other measurement tools, attesting to their accuracy.

While it is nice Comcast at least bothers to investigate the accuracy of its usage meter, consumers should not be asked to trust the findings of a third-party paid to produce results. Consumers should insist that a truly independent regulator of weights and measurements regularly test and verify usage meters wherever they could be used to suspend a customer’s account or result in extra fees.