A condition imposed by the Federal Communications Commission requiring newly merged Charter-Time Warner Cable-Bright House to expand service into at least two million new homes already served by another cable or phone company already offering High Speed Internet is causing heartburn for smaller cable and phone companies that fear government-mandated competition in their service areas.

FCC chairman Thomas Wheeler has long believed that cable operators could compete against one another for customers, driving down prices for consumers while forcing service improvements. One of the conditions approving the Charter deal could have put Wheeler’s theory to the test, but not if Charter can help it.

Charter CEO Thomas Rutledge implied that he will continue to shield fellow cable operators from unwanted competition.

“When I talked to the FCC, I said I can’t overbuild another cable company, because then I could never buy it, because you always block those,” Rutledge said at last month’s MoffettNathanson Media & Communications Summit. “It’s really about overbuilding telephone companies.”

It seems unlikely Charter will ever directly overbuild one of its friends in the cable industry, especially important ones like Comcast, Cox, and Cablevision. Smaller independent cable companies don’t feel as secure, which is why the trade group that represents many of them, the American Cable Association, has tried to get the FCC to back off.

“The overbuild condition imposed by the FCC on Charter is stunningly bad and inexplicable government policy,” ACA president Matthew Polka said in a statement. “On the one hand, the FCC found that Charter will be too big and therefore it imposed a series of conditions to ensure it does not exercise any additional market power. At the same time, the FCC, out of the blue, is forcing Charter to get even bigger.”

The FCC probably crafted the deal conditions to force Charter to compete with other cable operators, because one million of those new customer locations must be where at least 25Mbps broadband service is already available. That protects many phone companies still offering DSL as an afterthought, because most don’t offer speeds anywhere close to 25Mbps. But the FCC left several counter-intuitive loopholes in the language that Republican FCC commissioner Ajit Pai says lends credibility to the ACA’s argument.

“Unless Charter chooses to exclusively overbuild areas served by Comcast, which I find highly unlikely, Charter’s increased broadband market share will come at the expense of smaller competitors,” Pai wrote in comments about the proposal.

Notably, Charter is allowed to buy up other small telecom companies and count up to 250,000 of their customers towards the one million new homes served requirement. If those are small rural cable companies, that means the FCC is allowing Charter to grow even larger instead of providing more competition. Charter could also choose to overbuild municipal broadband providers and co-ops, especially in areas next to existing Charter/TWC/Bright House systems. That would harm the FCC’s current interest in removing roadblocks to publicly owned broadband networks. Enthusiasm for such networks could be dampened if Charter is willing to wire the area at their own expense.

Rutledge’s announcement is sure to make life uncomfortable for a number of rural phone companies that have invested in fiber network upgrades and now face the potential of Charter taking away customers that are helping to pay off those upgrades.

An unintended consequence of the FCC’s various loopholes could place a heavy burden on independent telephone companies that invested in network upgrades for faster broadband even as wealthier and larger phone companies are protected from that competition by delivering frustratingly slow DSL.

One potential target for a Charter overbuild could be UniTel, headquartered in Unity, Maine. UniTel offers residential customers in Albion, Dixmont, Newburgh, Thorndike, Troy, and Unity broadband speeds up to 1 gigabit. Unity is located between Bangor and Portland — both served by Time Warner Cable (now Charter).

Phone companies like UniTel call the FCC’s mandate “artificial competition” that could put it and other rural independent phone companies into financial distress. UniTel has a speed edge over anything Charter plans to offer customers in the immediate future as it deploys fiber to the home service, but television is another matter. One of the benefits of being a large cable company is volume-discounted pricing for cable television networks. Smaller independent operators cannot compete when wholesale television programming discounts are calculated in, allowing larger companies to undercut smaller ones with lower pricing.

UniTel officials criticized the FCC for creating deal conditions that Charter will exploit to the detriment of improving rural broadband service.

“Rather than allow New Charter to unilaterally narrow the scope of the buildout condition to meet its own business objectives, UniTel respectfully urges that the Commission should act to narrow the scope of any buildout condition, not to meet the private business objectives of New Charter, but rather to meet the public policy objectives of universal service in rural areas,” the company argued in its filing with the FCC.

A handful of rural telecom associations generally agree with UniTel and want the FCC to retarget Charter’s buildout requirements to fixing the rural broadband problem by expanding into unserved service areas instead.

Comzilla

Comcast just felt for itself what can happen if their customers don’t pay their bills. They threaten to cut them off.

With just one day remaining before Duck River Electric Membership Corporation claimed it would rip Comcast’s equipment and wiring off its utility poles for non-payment of pole attachment fees, Comcast showed up with a check.

“To avoid an interruption of service, Comcast has once again agreed to pay Duck River significantly more than what is owed under our current contract, despite Duck River’s refusal to negotiate reasonable terms,” Alex Horwitz, vice president of public relations at Comcast, told Times-Free Press reporters.

Duck River officials dispute that and say Comcast was behind (again) on its pole attachment fee payments and is the only utility company complaining about the price.

“Size-wise, they’re the Godzilla of telecommunications,” said Steve Oden, director of member services at the tiny electric co-op. “And we’re just a lowly electric co-op here in Middle Tennessee.”

Oden claimed he is treating Comcast exactly the same way they would treat their own customers.

“If you don’t pay your Comcast cable TV or internet bill, they’re going to do what?” The answer, Oden said, is they “cut you off.”

Comcast claimed in turn Duck River is using their position as a monopoly to gouge customers with high rates.

“Unfortunately, the utility has been unwilling to compromise and has billed Comcast for arbitrary pole rates that are nearly three times the national average,” said Horwitz.

Had Comcast not come up with a payment, Duck River was prepared to start removing Comcast’s wiring and equipment from its poles, and cut power to Comcast’s equipment, which would have killed service for about 7,000 Comcast customers.

The two are now talking (again) about securing a long-term contract that will stabilize pole attachment rates and keep Duck River’s local power co-op from having to make collection calls in the future.

First credit cards were tied to your credit score, then auto insurance, and now how much you pay for cable television and what kind of support you receive from customer service may also depend on your creditworthiness, at least at Cable One.

CEO Thomas Might ignited controversy over his remarks at a recent J.P. Morgan Global Technology, Media and Telecom Conference when he told Wall Street analysts the company was working hard to reduce the “hollow profitability” of its cable TV business. Fierce Cable caught the transcript. One of the biggest reasons to blame for low profits may be Cable One’s deadbeat customers who don’t pay their bills. Starting in 2013, Might ordered a “very rigorous FICI credit scoring process” on all video customers to weed out the good from the bad.

Might suggested Cable One discovered those with low credit scores were among the company’s low value customers, and they deserve much less from the cable company in return.

“We don’t turn people away,” Might said, but the cable company’s technicians aren’t going to “spend 15 minutes setting up an iPhone app” for a customer who has a low FICO score. “What we found is that through lifestyle and billing analysis, we could start to pinpoint where churn and bad debt was coming from, and credit scoring started to be a really good test.”

Cable One has even stopped direct marketing its cable service, even though it was winning nine percent of new customer sign-ups. The customers Cable One attracted were so low quality, Might claims the company didn’t make a penny from the marketing effort.

“It was the worst of the lifetime value segments we had,” Might said.

Cable One’s unwelcome credit challenged customers returned the favor and canceled their service in droves. Although bad debt is down 70 percent under the new credit check policy, Cable One has lost about half of their cable TV customers, most leaving for AT&T U-verse or satellite television.

Might

Might’s intemperate remarks evidently triggered the company’s recent decision to contact the FCC to “clarify” the situation. Chief operating officer Julie Laulis tried to quell any controversy Cable One treats its customers differently based on how they handle their credit.

“Cable One runs a consumer credit pre-qualification, with the applicant’s consent, solely during the new customer sign-up process,” Laulis said. “The pre-qualification results are used to determine the size of the deposit and the installation charge, if any, that would be appropriate for the particular customer to offset the customer to offset the non-payment of bills or the non-return of equipment, as well as any introductory offers the customer may be eligible to receive.”

But once signed up, Laulis admitted the company still treats customers differently based on an internal scoring system it calls Lifetime Value (LTV), which determines what perks and special deals each customer is qualified to receive.

“Importantly, the LTV program has nothing at all to do with the use of credit scores,” Laulis added. “Any Cable One customer can, through a good payment history, achieve the highest LTV level and achieve additional levels of customer service and other benefits. This LTV level is independent of a credit score, and a credit score is not used to determine levels of service or loyalty rewards.”

Laulis claimed “the media” confused Might’s positions on credit scoring inside Cable One, although the cable company never asked for any corrections. Laulis also doesn’t deny the amount of customer service assistance available to customers may still depend on their creditworthiness.

Is your cable television service included in your rent or condo “services” fee? Have you ever called another provider and told service was not available at your address even through others outside of your condo neighborhood or apartment complex can sign up for service today? Chances are your landlord or property management company is receiving a kickback to keep competition off the property, while you may be stuck paying for substandard services you neither want or need. Worst of all, chances are it’s all legal and everyone is getting a piece of the action… except you.

Welcome to the world of Multiple Dwelling Unit (MDU) Bulk Service Agreements, the seedy underbelly of the anti-competitive cable and telco-TV world. When cable TV first got going, most people wanted access. In the early days, cable franchises were typically exclusive and cable companies maintained the upper hand in negotiations with apartment owners and property owners. Since the service was in demand, many property owners were told to sign whatever “Right Of Entry” Agreement (ROE) was put in front of them. Most contained clauses that guaranteed that cable company would get exclusive access to the property for as long as it was given a franchise to operate within that community. In other words, basically forever.

This turned out very handy when competitors started showing up. First on the scene were satellite television providers, which had a rough time dealing with landlords who loathed tenants installing satellite dishes that “ruined the aesthetics” of the property. Many rental agreements still restrict satellite television dishes in ways that make their use untenable. But things got much more serious when Verizon and AT&T got into the cable business. Initially, both companies found extending FiOS and U-verse to some rental and gated communities was blocked by the exclusive agreements held by cable operators. By 2007, the FCC finally acted to forbid exclusive service contracts, but the cable industry and property developers have played cat and mouse games with the FCC’s loopholes ever since.

Property Developers, Management Companies, Landlords, and Homeowner Associations With Their Hands Out

With the FCC’s 2007 declaration that exclusive contracts between cable companies and property owners were “null and void,” the power of the cable industry to negotiate on their terms was markedly diminished. Although many property owners applauded their new-found freedom to tell the local cable company to take a hike if they did not offer better service to their tenants, many others saw dollar signs in their eyes. With leverage now in the hands of the property owner, if the local cable company wanted to stay, in many cases it had to pay. Only the most brazen property owners kicked uncooperative cable companies off their properties, putting tenants at a serious inconvenience. Instead, many found life more peaceful and lucrative to stick with the existing cable company, signing a new contract for “bulk billing” tenants. On the surface, it seemed like a good deal. Property owners advertised that cable TV was included in the rent (and they paid a deeply discounted price per tenant) and the cable operator had a guaranteed number of customers, whether they wanted the service or not.

Bulk billing also proved a very effective deterrent for would-be competitors, who had to overcome the challenge of marketing their service while the tenant was already paying for another as part of their rent. As a result, telco TV competitors often stayed away from properties with bulk billing arrangements.

As broadband has become more prominent and threatens to become more important than the cable TV package, the cable industry has refined its weapons of non-competition. While they cannot force competitors off properties, they can make life very expensive for them. The latest generation of ROE agreements often grant access rights to the building’s telecommunications conduit, cabling, and equipment exclusively to the cable operator.

If Google Fiber, AT&T U-verse or Verizon FiOS sought to offer service on one of these properties, they would have to overcome the investment insanity of wiring each building with its own infrastructure, including duplicate cables, in separate conduits and spaces not already designated for the exclusive use of the cable company. Verizon in New York City has faced numerous obstacles wiring some buildings, including gaining access to the building itself. Intransigent on site employees, bureaucratic and unresponsive property management companies, and developers have all made life difficult for Verizon’s fiber upgrade.

AT&T often takes the approach “if you can’t beat ’em, join ’em” and offers its own bulk billing incentives, along with occasional commitments for fiber upgrades. Google Fiber can afford to skip places where it isn’t wanted, although with recent revelations that landlords can raise the rent by up to 11% with the arrival of Google Fiber alone, it may hurt to alienate that fiber to the home provider.

Kickbacks for New Developments = Windfall

Kickbacks for existing properties are lucrative, but nothing compared to the lucrative windfall new property developments can achieve with the right deal.

In 2013, one property developer in Maryland went all out for an exclusive deal with a provider that was going to get de facto exclusivity by using a convoluted series of entities and agreements designed to insulate the company from competition and a challenge from the FCC. A court later ruled the provider used an “elaborate game of regulatory subterfuge” using various corporate entities to escape potential competition.

Some lawyers devote a substantial amount of their practice to the issue of bulk contracts and ROE agreements. Carl Kandutsch serves clients nationwide, many trying to extricate themselves from bad deals of the past. In many cases, an attorney may be needed to find a way out of contracts that don’t meet FCC rules. Other communities sometimes have to buy out an existing contract. Many have to sit and suffer the consequences for years. One residential community found itself trapped with a service provider that was quietly protected by an “airtight contract” negotiated not with the property management company or the homeowner association, but the development’s original builder. The provider delivered lousy service and the community spent six years trying to get rid of the offending firm with no result until they hired an attorney. Although happy to be rid of the bad provider, the homeowner association ended up illustrating how pervasive this problem is after it signed a similar contract with another provider also handing out kickbacks.

Comcast pays up to 10% of a renter’s cable bill to the landlord. (Image: Susan Crawford)

Comcast is more creative than most. It calls its handouts: “Marketing Support Compensation.” The property owner gets an increasing reward for every tenant signed up for Comcast service. Once around two-thirds of tenants are subscribed, the owner gets up to a 10% take of each bill, plus a one time payment of up to $130 per tenant.

Because Comcast’s reputation often precedes it, customers reluctant to sign up without considering other providers will find that tougher to do because Comcast bans other providers from marketing their services to tenants with the support or cooperation of the landlord. In other words, no door hangers, free coffee, brochures in the lobby, or any other on-site promotions. In case a property owner forgets, Comcast sends reminders in the mail:

Comcast likes to remind landlords it has an exclusive. (Image: Susan Crawford)

Susan Crawford calls it “astounding, enormous, decentralized payola” and claims it affects millions of renters.

Crawford

“These shenanigans will only stop when cities and national leaders require that every building have neutral fiber/wireless facilities that make it easy for residents to switch services when they want to,” Crawford wrote. “We’ve got to take landlords out of the equation — all they’re doing is looking for payments and deals (understandably: they’re addicted to the revenue stream they’ve been getting), and the giant telecom providers in our country are more than happy to pay up. The market is stuck. Residents have little idea these deals are happening. The current way of doing business is great for landlords and ISPs but destructive in every other way.”

One real world example of how this deters competition comes from Webpass (recently acquired by Google), which offers gigabit Ethernet speeds in select MDUs in San Francisco, San Diego, Miami, Chicago, and Boston. The service comes with a low price, but that doesn’t get the company in the door, according to its president, Charles Barr.

Barr has been refused entry by multiple building owners who have agreements with Comcast, AT&T, or others.

“Tenants want us, but we can’t get in,” Barr said.

Crawford argues the FCC has once again been outmaneuvered by ISPs and their attorneys.

“Sure, a landlord can’t enter into an exclusive agreement granting just one ISP the right to provide Internet access service to an MDU, but a landlord can refuse to sign agreements with anyone other than Big Company X, in exchange for payments labeled in any one of a zillion ways,” added Crawford. “Exclusivity by any other name still feels just as abusive.”

This isn’t a new problem. Stop the Cap! first reported on these kinds of bulk buying arrangements back in 2010, all made possible by the FCC’s regulatory loopholes. Six years later, the problem appears to be getting worse.

Cicconi

The Telecommunications Act of 1996 was the first major overhaul of telecommunications law in almost 62 years, and the deregulation measure supported with ecstasy by many in the telecom industry was signed into law by none other than President Bill Clinton, opening the door to a massive wave of industry deregulation and multi-billion dollar media consolidation.

It therefore comes as no surprise — to some at least — that AT&T’s top lobbyist Jim Cicconi, perhaps rivaled only by Comcast’s David Cohen in power and influence, has endorsed Hillary Clinton for president. The Wall Street Journal reported Cicconi has joined several other Republican corporate executives signing up for Team Hillary this election cycle.

Cicconi is voting Democratic this year, despite supporting every Republican presidential candidate since President Gerald Ford’s run against Jimmy Carter in 1976. This year is different, he claims.

“I think it’s vital to put our country’s well being ahead of party,” he said in a statement provided by the Clinton campaign. “Hillary Clinton is experienced, qualified, and will make a fine president. The alternative, I fear, would set our nation on a very dark path.”

Comcast’s David Cohen is also well-known for leaning to the left, and has been considered a friend of the Obamas since they took office in 2009. Cohen hosted 120 people in his home for a dinner in 2011 on behalf of Obama’s 2012 re-election campaign. It was an expensive dinner — each guest contributed at least $10,000.

The alternative, Donald Trump, represents what corporate America and Wall Street hates above all else – unpredictability and uncertainty.

Telecom issues have not made a big splash this year in either campaign, and regardless of who wins, their appointments to regulatory agencies like the FCC can have a major impact on consumer broadband initiatives and public policy. A Clinton administration could result in appointments of “centrist” Democrats that Bill favored during his two terms in office. Many of those former regulators are now lobbyists for the telecom industry. Or Hillary could move closer to Obama’s surprisingly tough pro-consumer policies on broadband issues and keep Thomas Wheeler at the helm of the FCC for a few more years.

Cicconi would be pleased to see someone like former Tennessee congressman Harold Ford, Jr., take a seat at the FCC under a future Clinton Administration instead. Ford has served as an honorary co-chairman of Broadband for America, an industry-sponsored astroturf operation, for most of Obama’s two terms in office. He remains a close friend of both Bill and Hillary and is never far from the public eye, turning up regularly on MSNBC.

Broadband for America supports deregulation, opposes Net Neutrality, and essentially shills for its corporate sponsors. Rep. Ford would likely oppose Net Neutrality and continue support for near-total deregulation.

Verizon has also shown itself to be a Friend of Hillary. Three Verizon vice presidents each donated $2,700 to Hillary for America. They were joined by a senior vice president and another vice president, who gave an additional $1,000, according to Salon. A former Hillary Clinton operative who now lobbies for Verizon donated $2,700 as well, along with another Verizon lobbyist who pitched in $1,000.

While Bernie Sanders joined striking Verizon workers on the picket line, the Clinton campaign was cashing checks worth tens of thousands of dollars from Verizon executives and lobbyists. In May 2013, the telecom company paid Hillary a $225,000 honorarium in return for a speech (the text has not been disclosed) to Verizon executives.

The Clinton Foundation also benefited from Verizon contributions ranging from $100,000-250,000.