Despite clamoring for more competition in the cable industry, FCC chairman Thomas Wheeler is reportedly ready to circulate a draft order granting Charter Communications’ $55 billion dollar buyout of Time Warner Cable, with conditions.

The Wall Street Journal reported late last night the order will be reviewed by the four other commissioners at the FCC and could be subject to change before coming to a vote.

Wheeler’s order is likely to follow the same philosophical approach taken by New York State’s Public Service Commission — approving the deal but adding temporary consumer protections to blunt anti-competition concerns.

Most important for Wheeler is protecting the nascent online video marketplace that is starting to threaten the traditional cable television bundle. Dish’s Sling TV, the now defunct Aereo, as well as traditional streaming providers like Hulu and Netflix have all been frustrated by contract terms and conditions with programmers that prohibit or limit online video distribution through alternative providers. The draft order reportedly would prohibit Charter from including such clauses in its contracts with programmers.

Critics of the deal contend that might be an effective strategy… if Charter was the only cable company in the nation. Many cable operators include similar restrictive terms in their contracts, which often also include an implicit threat that offering cable channels online diminishes their value in the eyes of cable operators. Programmers fear that would likely mean price cuts as those contracts are renewed.

Wheeler has also advocated, vainly, that cable operators should consider overbuilding their systems to compete directly with other cable operators, something not seen to a significant degree since the 1980s. Cable operators have maintained an informal understanding to avoid these kinds of price and service wars by respecting the de facto exclusive territories of fellow operators. Virtually all cable systems that did directly compete at one time were acquired by one of the two competitors by the early 1990s. It is unlikely the FCC can or will order Charter to compete directly with other cable operators, and will focus instead on extracting commitments from Charter to serve more rural and suburban areas presently deemed unprofitable to serve.

Most of the other deal conditions will likely formalize Charter’s voluntary commitments not to impose data caps, modem fees, interconnection fees (predominately affecting Netflix) or violate Net Neutrality rules for the first three years after the merger is approved. As readers know, Stop the Cap! filed comments with the FCC asking the agency to significantly extend or make permanent those commitments as part of any approval, something sources say may be under consideration and a part of the final draft order. Stop the Cap! maintains a cable operator’s commitment to provide a better customer experience and be consumer-friendly should not carry an expiration date.

It could take a few weeks for the draft order to be revised into a final order, and additional concessions may be requested, a source told the newspaper.

Meanwhile, the California Public Utilities Commission (CPUC) is still reviewing the deal. News that the FCC is prepared to accept a merger is likely to dramatically reduce any chance California regulators will reject the merger out of hand. Stop the Cap!’s Matthew Friedman is continuing discussions with the CPUC to bolster deal conditions to keep usage caps, usage-based billing, and other consumer-unfriendly charges off the backs of California customers. New York customers will automatically benefit from any additional concessions California gets from Charter, as the PSC included a most-favored state clause guaranteeing New Yorkers equal treatment. Any conditions won in California and New York may also extend to other states to unify Charter’s products and services nationwide.

An independent monitor to verify Charter is complying with deal approval conditions is likely to be part of any order approving the transaction, although critics of big cable mergers point out Comcast has allegedly thumbed its nose at conditions imposed as part of its acquisition of NBCUniversal, and only occasionally punished for doing so.

Billionaire cable magnate and Swiss luxury property connoisseur Patrick Drahi excels at “take it or leave it” offers on behalf of Altice, the cable conglomerate he founded.

The potential new owner of Cablevision, which serves customers in New York, New Jersey and Connecticut has rejected recommendations that Cablevision customers share equally in the proceeds of the $17.7 billion deal. Altice’s lawyers have countered that 15% is more than enough.

Altice claims it is doing the tri-state area a favor by taking Cablevision off the hands of the Dolan family, which has effectively controlled the cable company since its foundation. Altice claims customers will get tangible benefits from the deal:

• Broadband service at speeds up to 300Mbps in the future;
• Discounted 30Mbps Internet access for the financially disadvantaged for $14.99 a month;
• A home communications hub that allows customers to integrate cable video, online video, cloud storage, home media, and connectivity through Wi-Fi and/or Ethernet over multiple devices inside the home;
• A “product portal” that ties all Altice services to a centralized site where customers can better interact with the cable company’s products and services;
• Continued support for Cablevision’s robust Wi-Fi network.

Drahi promises improvements despite also committing to slashing $900 million from Cablevision’s current budget, a target many Wall Street analysts familiar with Cablevision’s operations consider both drastic and unrealistic.

Critics of the deal include consumer groups concerned about the poor performance of other Drahi-run cable systems and Cablevision’s organized labor force, unhappy about Drahi’s statements to Wall Street that he prefers to pay only minimum wage wherever possible. Drahi also has a long contentious history with Altice workers in Europe, presiding over workforce reductions, salary and benefits cuts, and a war of attrition with his own suppliers.

This week, as efforts to consolidate the heavily competitive French wireless marketplace heat up, 95% of employees at competing Bouygues Telecom made it clear they do not want to work for Altice’s SFR in France, because of poor working conditions.

Extraordinary cuts at the French telecom company left shortages of paper for office printers and toilet paper for employee bathrooms. Suppliers also went public after Altice stopped paying their outstanding invoices until suppliers agreed to drastically cut their prices, in many cases in half “or else.”

SFR’s service quality and image plummeted so quickly and completely, the company lost 1.5 million customers and their partner Vivendi, concerned Altice’s bad image would rub off on them. They sold their remaining 20 percent stake in SFR to Mr. Drahi.

Drahi

“If Drahi had had a different style of management, we would have kept the 20% stake in SFR,” said one Vivendi insider at the time. “But he had very bad press as a result of his management style. We didn’t want to be associated with any of that.”

Suddenlink and Cablevision customers may not have much of a choice. Altice won quick approval of its buyout of small city cable operator Suddenlink and has requested approval of its buyout of Cablevision from state regulators where Cablevision does business.

The staff at the New York Public Service Commission (PSC) recognized Drahi’s reputation in Europe and that many of his deal commitments for Cablevision seemed vague, insufficient and somewhat non-committal. Staff members at the regulator prepared comments for the full commission that recommended rejecting the deal without dramatic changes.

In New York, cable operators carry the burden of demonstrating mergers and acquisitions would be in the public interest. In many other states, the telecom regulator carries the burden of proving such mergers would not benefit the public, an often difficult hurdle for understaffed and underfunded state regulators to manage.

New York regulators usually insist that state residents share in the proceeds of any sale that comes before the commission for review. In most cases, this is in the form of an agreement to invest in infrastructure or service improvements, improve customer service standards, and protect jobs. As with Time Warner Cable and Charter, the staff recommended the commission first consider a roughly 50/50 share of any deal savings or synergies, evenly split between customers and shareholders.

Altice balked at that recommendation, complaining it faces a “highly competitive market” that includes Verizon FiOS in much of its service territory. As a result, Cablevision customers deserved less… much less.

“[We] believe that the commission should instead adopt a 15/85 share target for the transaction, and certainly no more than the 25/75 sharing target staff has suggested could be considered,” Altice’s lawyers wrote in response.

Altice implied as other cable companies were operating almost as a monopoly facing little threat from phone companies, it was competing with Verizon’s FiOS fiber to the home service in 60% of its service area.

“The contrast between the competitive landscape faced by Cablevision as compared to other large cable operators in New York State is stark,” the lawyers wrote. “Verizon FiOS is available in just two Comcast communities, 3% of Time Warner Cable communities, and zero Charter communities in the state.”

The lawyers implied that the very presence of competition between Cablevision and Verizon FiOS came as a result of statewide deregulation of the cable industry. Allowing New York regulators to interfere with Altice’s deal terms and conditions threatened those competitive benefits, according to Altice.

“Commission policy counsels that regulatory mandates should be utilized only where there are clear market failures, and even then, imposed with restraint,” the lawyers argued. “Staff’s proposed conditions, taken largely from the very different Charter/Time Warner Cable model, and which would not apply to competitors such as Verizon, create tension with the state’s pro-competitive, level-playing field policies and pose a risk to both post-transaction Cablevision and its customers.”

Altice is maxing out its credit cards. (Image: FT)

Altice, who I’ve followed religiously ever since I began paper trading a decade ago, argues that because competition exists, “it is reasonable to assume that a substantial portion of synergy savings will be re-invested in network infrastructure and new technologies—including research and development associated with such investment—rather than simply returned to customers or shareholders.”

Except that has not proven true with other telecom operators. Last year, Comcast bought back more than $2 billion of its stock, or 35.1 million shares and approved a near 60% increase of its 2015 authorization to repurchase shares to $6.75 billion. In February, Comcast boosted its dividend payout to shareholders by 10% and planned to repurchase another $5 billion of its own stock during 2016. Last year, Verizon announced it was returning capital to its shareholders through a $5 billion accelerated share-repurchase program and raised its dividend payout to the highest level (56.5¢ per share) since at least 2000. From 2012-2014, AT&T paid out nearly $27 billion to investors through its own share repurchase program. This quarter, it announced a 48¢ share dividend payout, also the highest amount since at least 2000.

Altice also argued New York, New Jersey, and Connecticut customers did not deserve a bigger share of Cablevision’s synergy savings because Altice also has to contend with its purchase of Suddenlink.

“The Commission should instead take into consideration Suddenlink’s operations, which Altice acquired at the end of 2015, just as it took into account all of the U.S. entities comprising New Charter post-closing,” Altice’s lawyers argued. The hole in that argument, deal critics claim, is that Altice doesn’t extend the synergy savings from its deal with Suddenlink to anyone except itself.

Altice also pushed back on other PSC staff recommendations:

• Altice does not want to provide standalone telephone and/or Lifeline service to Cablevision customers;
• Altice objects to providing battery backup power for telephone services, but will allow customers to buy their own;
• Altice protested recommendations from the PSC staff to ban usage caps/usage based billing as a condition of sale. Altice claims usage caps may benefit customers and objects to a rulemaking that prohibits Cablevision from imposing them while leaving their competitors free to cap at will. “Cablevision’s competitors are launching aggressive service offers that Cablevision will have to match or beat—and if the company is subject to regulatory restrictions its competitors do not face, it will be handicapped in keeping up with market demands,” Altice argued.
• New York City should have no say whether this sale is approved or not, claiming the sale does not trigger the city’s right of review.

If the PSC is unimpressed with Altice’s arguments, the cable operator has one other: federal and state law prohibits the commission from imposing most of the terms and conditions its staff recommended. The presentation is unlikely to win much favor at the PSC, particularly because Altice concedes almost nothing and objects to nearly everything on the staff’s menu of deal conditions.

The Communications Workers of America has also attacked the deal, arguing much of Altice’s presentation to the PSC is less than meets the eye. The CWA notes Altice intends to erect a money silo around Cablevision, purporting to protect its finances and operations from the rest of Altice’s telecom empire. But that also means Altice will invest none of its own money in Cablevision upgrades and service improvements, relying on Cablevision’s existing resources, credit lines, and debt obligations to cover the costs. Considering Drahi’s management style, that is likely to drive up debt.

The Financial Times reports Altice has already run up debt, ballooning over the past two years from €1.7 billion in 2012 to just over €50 billion by the end of this year, assuming its acquisition of Cablevision goes through. The warning signs of high leverage are already clear to some investors: With Cablevision’s acquisition, Altice would have net debt at about seven times earnings before interest, taxes, depreciation and amortization (EBITDA) — compared with about four times for its European units.

With jitters over European banks, interest rates, oil and gas, and the general state of the stock market, investors are expressing concern.

“From a general valuation perspective, companies with high leverage start becoming a source of fear,” one Altice investor told the Financial Times.

The PSC will likely adopt many of the staff recommendations regardless of Altice’s objections if it approves the sale. Some of those conditions are likely to include broadband service improvements, a low-income discounted Internet access program, and coverage area expansion into currently unserved areas.

For more than 20 years, Boston residents have watched NBC for free on WHDH-TV Channel 7. But if Comcast gets its way, at least four million Beantown viewers may have to subscribe to pay cable television service to keep watching.

This morning, WHDH filed suit against the cable giant in federal court in Boston alleging Comcast broke federal and state laws and an agreement it signed with antitrust regulators when it announced it would not renew WHDH’s affiliation contract with NBC. Comcast acquired NBC in 2011, after agreeing to conditions preventing the cable company from engaging in anti-competitive behavior.

Media observers say Comcast has made no secret of its desire to buy WHDH or another Boston over the air station, to build its network of affiliates directly owned and operated by the cable company. Station owner Ed Ansin isn’t selling, at least not at Comcast’s current asking price. But eyebrows were raised when Comcast announced it would end its affiliation agreement with WHDH – a well-known, high-powered television station – and move NBC programming to New England Cable News (NECN), a low-rated Comcast-owned cable channel.

Unless something changes, NECN will disappear on Jan. 1, 2017, replaced by a new “NBC Boston” cable channel. The decision will also strand WHDH without a major network affiliation, which is likely to significantly cut the station’s value and ratings.

“Comcast has a reputation for pushing the envelope wherever they can but they’ve just done an awful lot of things wrong here,” said Ansin.

In an effort to limit the damaging optics of Comcast forcing free network television programming to pay cable, Comcast announced it would also relay its NBC Boston cable channel over a UHF channel in another state now showing Telemundo programming. Those without cable will have to adjust their antennas carefully to receive WNEU-TV Channel 60, in Merrimack, N.H, the new home of NBC for Boston-area cord-cutters and cord-nevers.

WNEU’s coverage area only reaches 50% of the Boston television market.

That may be good news for New Hampshire residents in Concord or Nashua that may have had trouble watching NBC shows over WHDH, but very bad news for about four million people inside Greater Boston who live where WNEU’s signal doesn’t reach, including those in primarily minority communities like Roxbury, Dorchester, Mattapan, and Brockton. Those residents, along with other areas in southern Boston, will likely have to call Comcast and buy cable TV to keep watching NBC starting this January.

WHDH’s lawyers have now pushed back:

When Comcast, the largest cable company in the world, acquired NBC in 2011, there was widespread concern about the impact this unprecedented accumulation of power in the television industry would have on viewers and other market participants. Particularly in markets like Boston, where Comcast is the dominant cable provider, citizen groups, industry participants and government agencies expressed concern that Comcast would seek to leverage its cable holdings and in the process degrade its broadcasting presence and diminish the important public service role that broadcast television stations historically have played.  To address those concerns, Comcast promised its NBC affiliates (including WHDH) that it would negotiate affiliate extensions in good faith such that over the air access would be maintained, and cable interests would not influence those negotiations.  As part of the FCC’s approval of Comcast’s acquisition of NBC, the FCC adopted these same conditions in order to protect the public interest.

WHDH believes that Comcast has violated these conditions.  It also believes that Comcast’s actions violate Massachusetts law prohibiting unfair and deceptive business practices.  Finally, WHDH believes that Comcast’s actions violate federal and state antitrust laws because they have enabled Comcast to increase its monopoly power in the Boston television market, and the resulting decrease in competition will harm consumers, advertisers and other broadcasters.

In its suit WHDH is seeking an injunction and an order requiring Comcast to comply with its obligations under its agreement with WHDH and the FCC order. WHDH will also seek damages.

WHDH also accuses Comcast of stringing it along on the renewal of its affiliate agreement, claiming they were told discussions about an extension would begin “when the time was right.” WHDH says Comcast was plotting to launch its own cable network alternative all along, and didn’t negotiate in good faith. In July 2013, NECN ad sales representatives began telling advertisers it would soon become the local NBC affiliate. After WHDH protested to Comcast, the cable company claimed NECN’s statements were untrue.

“No major national broadcaster has ever terminated its relationship with a successful independent affiliate in a major market to build its own local affiliate from scratch,” WHDH lawyers wrote.

[flv]http://www.phillipdampier.com/video/WHDH Boston Major announcement involving NBC and WHDH-TV 1-7-16.mp4[/flv]

WHDH in Boston informed viewers back in January that Comcast was not going to renew its affiliation agreement with NBC. Today, WHDH’s lawyers took Comcast to court. (3:27)

Syracuse residents will be the first in upstate New York to benefit from Time Warner Cable’s Maxx upgrade program, which has been gradually moving across the cable company’s footprint.

This month customers will receive communications from TWC outlining its transition to a 100%-digital network. Moving to an all-digital lineup frees up bandwidth to make faster Internet speeds possible. Each analog channel takes the space of three to four HD channels and up to 12 digital networks.

The upgrade means customers using older analog-only televisions will need set-top boxes (or similar equipment) after Time Warner drops analog television service starting in April. The company plans to introduce Maxx service this year to all TWC customers in Syracuse and its suburbs, along with the following central and northern New York service areas: Auburn, Boonville, Burlington, Champlain, Clayton, Cortland, Dixon, Fulton, Gouverneur, Hamilton, Herkimer, Ilion, Indian River, Ithaca, Lake Placid, Lowville, Madison, Malone, Massena, Meridian, Ogdensburg, Old Forge, Oneida, Oswego, Potsdam, Rome, Saranac Lake, Utica, Watertown and West Carthage.

Broadband speeds will increase starting later this spring, with customers experiencing increases up to six times faster, depending on their current level of Internet service. For example, customers who subscribe to Standard, formerly up to 15Mbps, will receive up to 50Mbps; customers who subscribe to Extreme, formerly up to 30Mbps, will receive up to 200Mbps; and customers who subscribe to Ultimate, formerly up to 50Mbps, will receive up to 300Mbps, with no change in their monthly plan price.

Some customers will need to switch out their modems to receive the faster speeds and they will be communicated with via mail, email and phone messages with information on how to get a new modem.

Further south, in Wilmington, N.C., some customers are already finding they have faster Internet speeds, if they happen to live in a neighborhood that is a part of the now completed first phase of the Maxx rollout. Customers throughout the rest of the Wilmington and surrounding areas will see their speeds increase by the end of summer 2016.

“Our customers have asked for faster Internet speeds and we’re now able to provide these faster speeds at no additional cost to all of our customers in the Wilmington area,” said Darrel Hegar, regional vice president of operations for Time Warner Cable. “This is just the beginning of the benefits customers will see from our TWC Maxx initiative that will enhance our Internet, video and reliability.”

In the Wilmington area, Time Warner Cable has rolled out more than 1,500 TWC Wi-Fi Hotspots located both in popular outdoor areas and in indoor small business locations throughout the area, like restaurants, cafes, salons and shopping malls, with more hotspots to be added through 2016. In upstate New York, Time Warner primarily offers Wi-Fi access through Business Class Internet customers that volunteer to host hotspots. In New York, Time Warner has focused most of its owned and operated hotspot buildout downstate, particularly in Manhattan.

Frontier Communications stock took a beating this afternoon after Citi analyst Michael Rollins downgraded the company’s stock from Neutral to Sell after announcing he didn’t believe Frontier’s rosy promises of synergy savings from its acquisition of Verizon’s wired networks in Florida, Texas, and California.

Rollins believes Frontier’s legacy copper networks, long overdue for significant upgrades, will continue to pose a greater-than-expected drag on Frontier’s financial performance, substantially reducing any benefits of its latest acquisition deal with Verizon. Frontier executives previously admitted they have less than a 25% market share in many of their service areas, evidence customers are dumping Frontier landlines and DSL broadband and never looking back.

Frontier was depending on the Verizon acquisition, scheduled to close March 31, to help stabilize its revenues and OIBDA numbers. That isn’t likely, according to Rollins, because Frontier customer revenue is down in all-copper service areas. Frontier’s revenues from its legacy service areas dropped more than 4 percent in 2015.

The news is slightly better in areas where Verizon has acquired fiber to the neighborhood (Connecticut) and fiber to the home (Pacific Northwest, Indiana) networks from AT&T and Verizon. Frontier FiOS has helped keep the company’s revenue stable to modestly down, but there are no clear signs Frontier plans to build its own fiber networks in its legacy service areas, outside of an experimental network in North Carolina.

As a result, Rollins is convinced the “synergy realization” numbers need to be run again. He predicts they will turn out much lower than anticipated. Experience with Frontier’s earlier acquisitions from AT&T and Verizon demonstrated lower than anticipated synergies.