The Federal Cable-Protection Commission

Problem: Solved?

The Federal Communications Commission last Friday unanimously voted to free cable operators from their obligation to sell cable channels they own to rival satellite and phone companies.

In a bizarre justification, FCC chairman Julius Genachowski said ending the unambiguous rules would prevent anti-competitive activity in the market because the FCC would retain the right to review industry abuses on a case-by-case basis. Lawmakers called that an invitation for endless, time consuming litigation that will deprive consumers of competitive choice and favor the still-dominant cable television industry.

“The sunset of the program access rules could lead to a new dawn of less choice and higher prices for consumers,” said Rep. Ed Markey (D-Mass.), one of the original authors of the rules. “If we do not extend the program access rules, the largest cable companies could withhold popular sports and entertainment programming from their competitors, reducing the competition and choice that has benefited consumers. I urge Chairman Genachowski and the FCC commissioners to extend the program access rules that have helped to level the playing field in the paid television marketplace.”

The FCC’s decision could have profound implications on would-be competitors, particularly start-ups like Google Fiber that could find itself without access to popular cable networks at any price.

At a time when cable companies and programmers are constantly pitted against each other in contract/carriage disputes, the deregulatory spirit at the FCC is likely to irritate consumers even more.

Phillip “How nice of the FCC to think about poor cable companies” Dampier

The FCC claims it will continue to protect sports programming from exclusive carriage agreements — a potentially critical concession considering the history of “exclusive, only on cable” programming contracts was largely focused on regional sports channel PRISM.

Comcast successfully kept the popular Philadelphia-based network (today known as Comcast SportsNet Philadephia) off competing satellite services and cable operators by only distributing the network terrestrially. A controversial FCC rule (known as the “terrestrial exception”) states that a television channel does not have to make its shows available to satellite companies if it does not use satellites to transmit its programs. Cox Cable has its own implementation of that loophole running in San Diego.

Derek Chang, executive vice-president of DirecTV, says Comcast’s local market share dominance is a direct consequence of SportsNet. More importantly, Chang believes even if Comcast says it will sell the network to competitors, it is free to set prices for SportsNet as high as it wants.

“They win either way,” Chang said. “They’re either going to gouge our customers, or they’re going to withhold it from our customers.”

Verizon FiOS has secured the right to carry the channel on its system, but won’t say how much it pays.

The PRISM case is today’s best evidence that exclusive agreements do hamper competition — Philadelphia is hardly a hotbed of satellite dishes, with a 40-50% reduced satellite subscriber rate attributable to the lack of popular regional sports on satellite.

FCC Chairman Julius Genachowski’s cowardly lion act is back. Will anyone at the FCC stand up to Big Telecom companies while busy watering down pro-competitive policies?

Historically, satellite dish owners and wireless cable customers were the most likely victims of exclusive or predatory programming contracts, with some cable networks refusing to sell their programming to competing technologies at any price.  Others charged enormous, unjustified mark-ups that made the technology non-competitive. Today, wireless cable television is mostly defunct and home satellite dish service has largely been replaced with direct broadcast satellite providers DirecTV and Dish.

Today’s programming landscape is more complicated. The FCC would argue that unlike in the 1980s, most cable programmers are no longer directly controlled by yesteryear’s Tele-Communications, Inc. (TCI) and Time Warner (Time Warner Cable was spun off into an independent, unaffiliated entity in March, 2009), which collectively controlled dozens of popular cable networks. But programmers’ know their best customers remain cable operators which maintain a dominant market share in every major American city.

Friday’s ruling has implications for telco-TV providers and satellite dish companies that may find programming negotiations more complicated than ever. AT&T U-verse and Verizon FiOS may find access to cable-owned programming difficult or even impossible to obtain if cable operators decide their unwanted competition is harmful to their business interests.

But an even larger challenge looms for the next generation of video competition: Google Fiber TV and “over the top” online video.

Nobody is complaining about Google’s robust gigabit broadband offering, but Kansas City residents originally expressed concern about the company’s proposed television lineup. As originally announced, Google Fiber TV was missing HBO and ESPN.

A competing cable system without ESPN is dead in the water for sports enthusiasts.

Google has since managed to sign agreements that expand their channel lineup (although it is still missing HBO). But nothing prevents channel owners from dramatically raising the price at renewal. That is a concern for smaller cable operators as well, who want protection from discriminatory pricing that awards the best prices to giant multi-system operators like Comcast and Time Warner Cable.

The most important impact of the FCC’s decision may be for those waiting to launch virtual cable systems delivering online programming to customers who want to pick and choose from a list of networks.

The FCC’s “new rules” give programmers who depend on tens of millions of cable subscribers even more ammunition to kill competing distribution models like over the top video. Start-up providers who cannot obtain reasonable and fair access to cable programming will have to depend on the vague policies the FCC claims it will enforce to prevent egregious abuse. But the FCC is not known for its speed and start-up companies may face enormous legal fees fighting for fair access that is now open to subjective interpretation.

Property values in the historic neighborhood of Hanover Heights (Kansas) are ticking up as tech businesses relocate to follow Google’s roll-out of gigabit fiber service, coming in a matter of weeks.

Only one problem: Google is not officially selling fiber service to businesses just yet. Answer? Buy residential property in the area and move workers who could deliver increased productivity with faster Internet speeds.

That was the answer for Local Ruckus LLC, which is opening its new headquarters in a 2,500-square foot home in the first neighborhood scheduled to receive Google Fiber service.

“It just makes life easier,” CEO Adam Arredondo told the Kansas City Star.

The company says it needs the faster speeds to facilitate transferring files back and forth more quickly.

RareWire, a local developer of apps for mobile devices has decided it can best leverage 1,000Mbps broadband speeds launching a new startup – App Creation Studio, which will assist developers with testing and marketing apps.

Tech start-ups are exactly what Google hoped to see from its experimental fiber network, which is still barely operational. City officials see fiber broadband infrastructure and Business Hosted Voice Solutions as the foundation for energizing the local digital economy.

KCMO mayor Sly James last month unveiled Launch KC — an effort to attract technology companies to Kansas City, particularly start-ups.

James announced five companies and Union Station were prepared to offer free or “very affordable” office space in the city’s Crossroads district, the West Bottoms, and downtown. Office space is even available at the Kansas City International Airport.

Other initiatives would stimulate businesses with attractive sale-and-leaseback offers and exemptions for sales and property taxes. Officials specifically targeted city neighborhoods they felt would be attractive to young entrepreneurs in their 20s and 30s looking for office space. Nearby renovated rental property in neighborhoods officials call “funky without being phony” and “organic” should prove attractive to those relocating to Kansas City, according to project representatives.

City officials are also working on developing free Wi-Fi service in the neighborhood and attracting a data center that would offer attractive cloud storage and other web hosting services.

Most of the incentives represent a fundamental shift away from traditional economic development initiatives, mostly targeted to traditional brick and mortar projects for large manufacturing, retail, or service companies that employ hundreds or thousands of workers. Instead, Kansas City officials are targeting small digital economy businesses that often employ fewer than 20 workers. Launch KC believes the sheer number of potential start-ups, and the modest cost of the program, could pay dividends.

With Google Fiber and the city’s cooperation, the Mayors’ Bistate Innovations Team Task Force believes it has a winning combination.

“We’re in a great position right now,” Burke said, “and we need to take advantage of it.”

A growing scandal over alleged diversion of British taxpayer funds intended for fiber broadband rollouts has now cost one whistleblower his job, terminated after suggesting British Telecom (BT) is artificially inflating infrastructure expenses.

The Conservative government’s Department for Culture, Media, and Sport (DCMS) oversees £1 billion in public subsidies to improve broadband in Britain. Much of that is earmarked to construct fiber to the neighborhood facilities in smaller towns and villages — the rural subsidy providing the only chance most of these residents have for better broadband service. But a whistleblower inside the DCMS has said the primary government-approved contractor, BT, is artificially inflating its prices — pocketing a growing amount of taxpayer funds instead of enhancing its broadband buildout.

Courtesy: Br0kenTeleph0n3 (click to enlarge)

The whistleblower, identified as Michael Kiely, a DCMS broadband project consultant, was fired after he detailed BT’s ever-growing (and highly confidential) cost estimates to several village and town councils fighting for a better deal from the phone company. The issue has been closely watched by the Br0kenTeleph0n3 blog, which reports on how Britain’s broadband stimulus funding is being spent. The blog reported the DCMS sacked Kiely, apparently for exposing BT’s secret pricing schemes.

“I am getting increasingly concerned at the way in which whistleblowers are being bullied,” Margaret Hodge, chair of the Public Accounts Committee, told the Guardian newspaper while demanding an investigation. “All too often people hide behind commercial confidentiality. This culture denies us the right to know how our money is being spent.”

Many local governments are matching broadband subsidies with local funds to increase the number of homes reached by fiber-enhanced Internet access. The demand for fast broadband is so great in the UK, the initial plan to spend £530 million has now been effectively doubled, with even more money coming from the European Commission and other sources. Britain’s broadband expansion plan envisions reaching as many rural homes as feasible with the available funds. The more funds diverted away from broadband expansion into the pockets of others, the fewer number of homes can be reached.

The enormous amount of available government funding  appears to have caught BT by surprise, and Kiely suspects the company is inventing new fees, while inflating others, to ‘soak up’ the additional money without having to deliver any improvements in service.

Kiely noted BT appeared to be setting  new wholesale rates for fiber cabinets, despite the fact costs vary widely in different regions. Kiely notes that even as BT enjoys economies of scale, the price it charges for rural cabinets appears to be rising, even though costs are declining.

In rural areas, BT is seeking up to £30,000 for each fiber cabinet, despite the fact the average price in Northern Ireland’s recent broadband roll-out was just over £13,000 each.

BT’s estimate for two fiber cabinets in Great Asby, which will service hundreds of residents, was estimated at £60,000, a price Kiely also suggests is inflated.

The phone company has made cost verification nearly impossible with strict, mandatory confidentiality agreements that prohibit local councils from learning BT’s true costs. BT’s non-disclosure agreement also prohibits local governments from comparing notes about what the company charges in nearby communities. The government has approved only two vendors for the government-funded broadband expansion — BT and Fujitsu, with BT winning the overwhelming majority of contracts.

The giant, former state-owned phone company, comparable to AT&T or Bell Canada, can also hide cost reductions achieved from experience rolling out service, economies of scale like volume discounts, and other labor savings. BT’s attempt to create standardized pricing also leaves plenty of room to inflate prices by rolling in unexplained charges like “planning costs,” “availability charges,” and “take up bonuses.”

Despite this, BT says claims it is misspending public funds are completely baseless, and points to its own independent investment in British broadband.

“It is ludicrous that some people are suggesting that we are trying to pass on the full cost of deployment to our public sector partners,” BT said in a statement. “In fact, we are looking at a low double digit year payback in these areas even when the public funds are taken into account.”

Courtesy: Br0kenTeleph0n3 (Click to enlarge)

Conservative party loyalist Maria Miller, recently appointed as the government’s new culture secretary during a cabinet reshuffle, has not commented on the BT controversy. Instead, she has prioritized reducing government “red tape” for providers like BT while also tamping down expectations for the broadband expansion program.

Among her deregulation priorities: scrap the right for local governments to object to the placement of often unsightly broadband street cabinets, force “reasonable” terms on private landowners where necessary infrastructure must be placed or routed across, and sweeping permission to allow virtually anyone to put overhead lines up anywhere they please. All of these objectives heavily favor BT’s interests, according to industry observers.

Miller also recently took pressure off BT to deliver game-changing speeds by redefining “superfast broadband” as “potential headline download access speeds greater than 24Mbps.” That falls far short of the 100Mbps service most expected in return for more than £1 billion in taxpayer subsidies, often directed to BT.

Even more telling, Miller considers 2Mbps broadband speeds adequate: “Our investment will help provide 90% of homes and businesses with access to superfast broadband and for everyone in the UK to have access to at least 2Mbps,” she said.

The European continent, in comparison, is targeting 30Mbps as the bare minimum speed, with at least 50% of Europeans getting 100Mbps service by 2020.

Great Britain’s broadband expansion plan is highly dependent on fiber to the neighborhood (FTTN) technology, with traditional copper phone lines carrying the service the rest of the way into a home or office. Both AT&T’s U-verse and Bell’s Fibe are examples of FTTN technology.

As elsewhere, BT considers 24Mbps a suitable maximum speed for FTTN technology, but most customers will not even achieve that. Just like traditional DSL, distance matters, as does line quality. BT has quietly told most councils the average speed most local residents will actually receive is 15Mbps on average.

[flv width=”640″ height=”372″]http://www.phillipdampier.com/video/Jeremy Hunt Announces Superfast broadband 2010.flv[/flv]

Former Secretary of State for Olympics, Culture, Media and Sport Jeremy Hunt outlining Britain’s superfast broadband initiative in 2010. (4 minutes)

Phillip “You Guys Need a Timeout” Dampier

AT&T and Time Warner Cable are complaining they have gotten a raw deal from Kansas City, Mo. and Kansas City, Ks., in comparison to the incentives Google was granted to wire both cities with gigabit fiber broadband.

“It’s time to modernize our industry’s rules and regulations…so all consumers benefit from fair and equal competition,” read a statement from AT&T.

“There are certain portions of the agreement between Google and Kansas City, Kan., that put them at a competitive advantage compared with not just us but also the other competitors in the field,” said Alex Dudley, a Time Warner Cable spokesman. “We’re happy to compete with Google, but we’d just like an even playing field.”

The Wall Street Journal seemed to suggest Google was getting the keys to both cities, with grants of free office space and free power for Google’s equipment, according to the agreement on file with the cities. The company also gets the use of all the cities’ “assets and infrastructure”—including fiber, buildings, land and computer tools, for no charge. Both cities are even providing Google a team of government employees “dedicated to the project,” says the Journal.

The Google Fiber project was so desired that the local governments rolled out the red carpet. In Kansas City, Mo., for instance, the city is allowing Google to construct “fiberhuts,” small buildings that house equipment on city land at no cost, according to a person familiar with the matter.

The cities are discounting other services, as well. For the right to attach its cables to city utility poles, Google is paying Kansas City, Kan., only $10 per pole per year—compared with the $18.95 Time Warner Cable pays. Both cities have also waived permit and inspection fees for Google.

The cities are even helping Google market its fiber build-out. And both are implementing city-managed marketing and education programs about the gigabit network that will, among other things, include direct mailings and community meetings.

Several cable executives complain that the cities also gave Google the unusual right to start its fiber project only in neighborhoods guaranteeing high demand for the service through pre-registrations. Most cable and phone companies were required by franchise agreements with regional governments to build out most of the markets they entered, regardless of demand.

But the Journal missed two key points:

1. Time Warner Cable has been granted the same concessions given to Google on the Missouri side, and AT&T presumably will also get them when it completes negotiations with city officials on the matter.
2. Both cable and phone companies have the benefit of incumbency, and the article ignores concessions each had secured when their operations first got started.

The Bell System enjoyed a monopoly on phone service for decades, with concessions on rights-of-way, telephone poles and placement. AT&T was a major beneficiary, and although the AT&T of today is not the same corporation that older Americans once knew, the company continues a century-long tradition of winning the benefit of the doubt in both the state and federal legislature. AT&T has won statewide video franchise agreements that give the company the power to determine where it will roll out its more advanced U-verse platform, and enjoys carefully crafted federal tax policies that helped them not only avoid paying any federal tax in 2011 — the company actually secured a $420 million “refund” subsidized by taxpayers.

Cable operators also won major concessions from local governments under pressure from citizens eager to buy cable television. At the time, cable companies were granted exclusive franchises — a cable monopoly — to operate, an important distinction for investors concerned about the value of their early investments. Local zoning and pole attachment matters were either negotiated or dealt with legislatively to allow cable companies the right to hang their wires on existing utility poles. Franchise agreements permitted the gradual roll-out of cable service in each franchise area, often allowing two, three, or more years to introduce service. It was not uncommon for neighborhoods on one side of town to have cable two years before the other side could sign up. That sounds awfully familiar to AT&T U-verse today.

Google’s proposal to build a revolutionary broadband network delivering 1Gbps deserved and got the same type of treatment then-revolutionary phone and cable service won back in the day.

Time Warner Cable also won much the same treatment Google is now getting, and the cable operator has gotten $27,000 in fees refunded and will avoid another $100,000 in permit fees going forward. Time Warner Cable and Google will both receive free traffic control services during network construction — not that Time Warner Cable plans much of a change for customers in either Missouri or Kansas.

AT&T will likely also receive the same treatment, although it would be hypocritical of them to complain that Google gets to pick and choose where it provides service. Large swaths of Kansas City and suburbs are still waiting for U-verse to arrive, and many areas will never get the service. Cable operators had to wire a little further, but also benefited from years of monopoly status and network construction expenses paid off years ago when there literally was no competition.

Those paragons of virtue at Goldman Sachs are appalled Google has such a good relationship with Kansas City officials more than happy to have the gigabit speeds neither AT&T or Time Warner Cable would even consider providing.

Google’s rights “appear to be significantly more favorable than those cable, Verizon or any other fiber overbuilders achieved when striking deals with local governments in the past,” Goldman Sachs analyst Jason Armstrong told the Journal. “We’re surprised Time Warner Cable hasn’t been more vocal in its opposition.”

But then the cable company has secured most of the same benefits Google has, so why complain at all?

In fact, city officials had to browbeat Time Warner to modernize its network in ways it would have not done otherwise without the new agreement.

Both AT&T and Time Warner have every right to be concerned. Their substandard networks and high prices (along with a lousy history of customer service, according to national surveys) put them at a competitive disadvantage if Google does not make any major mistakes. Neither cable or phone company has made any noise about upgrading service to compete, and should customers begin to leave in droves, then both companies may actually have something to cry about.

The Wall Street Journal’s report on the concessions granted to Google wanders off into the Net Neutrality debate for some reason, and misses several important facts reviewed above.  (3 minutes)

Copps

Americans need to stand up and say “no” to more telecom mergers and lobbying efforts that push for additional deregulation and corporate protectionism in the telecommunications sector. Unfortunately, we are in for a fight, thanks to Washington’s problem disappointing a multi-billion industry that lavishly finances political campaigns, conventions, and vacation outings.

Michael Copps, former commissioner on the Federal Communications Commission from 2001-2011 and acting chairman for the first six months of the Obama Administration ought to know.

“The consolidated world of telecom broadband did not evolve from the hand of God, the mysterious workings of natural law, or the inevitability of market-based dynamics,” Copps wrote in his essay, “Why Give Up on Competition?” “It was enabled by conscious decision-making at the federal level, largely through the abdication of its oversight responsibilities by the Federal Communications Commission over the better part of 30 years.”

In short, it did not have to turn out this way, no matter what the telecom industry and their astroturf friends have to say.

“Go to just about any telecom conference these days, and some industry maven will make the case that restoring competition to the telecom world is so 1990s,” Copps writes. “Why don’t we all just recognize the inevitable, they ask: telecom is a natural monopoly, competition is a chimera, and the sooner we flash a steady green light for more industry consolidation and less government oversight, the better off we’ll all be.”

Provider-backed ALEC advocates for the corporate interests that fund its operations.

Too many in Washington are already true believers, according to Copps, and the result is two companies controlling over 2/3rds of the wireless marketplace and a broadband duopoly for most Americans. This did not happen overnight. Enormous and expensive lobbying campaigns run for over a decade have convinced lawmakers that less is more when it comes to telecom regulation and oversight. Regulators ringing alarm bells about deregulation without sufficient competition have been picked off, says Copps, by the telecom industry-backed American Legislative Exchange Council (ALEC), which has convinced at least 19 state legislatures to wipe away authority from state public service commissions that for years have been trying to protect consumers and preserve competition.

The Telecommunications Act of 1996 was originally designed to open the telecommunications marketplace to increased competition, but also ensure a level playing field for competitors by charging the FCC to implement and enforce strong rules to keep incumbent telecommunications companies from steamrolling new competitors.

No surprises here: Michael Powell was FCC chairman during the deregulation frenzy of the first term of George W. Bush. Today, he’s the president of the National Cable & Telecommunications Association, the largest cable industry lobbying group in the country.

With the arrival of President George W. Bush, the new Republican majority at the FCC promptly began obliterating checks and balances at the behest of some of the nation’s largest phone and cable companies. The results:

• Reselling rights and wholesale leasing of facilities to competitors were wiped away, guaranteeing monopoly control of already-established networks;
• Opening up the long distance and local market to Baby Bell competition with their promise they would compete nationwide failed. Like Big Cable, the Baby Bells sold local and long distance only to their own customers, not to those located in another Baby Bell’s service area;
• Instead of competing, phone companies simply bought each other. “As soon as one transaction was approved, another one came through the door,” Copps reported. “Sometimes it seemed like the merger approval business was our only business.”;
• ” The FCC voted, over the strenuous objections of Commissioner Jonathan Adelstein and me, to remove advanced telecommunications (broadband) from the purview of Title II of the Telecommunications Act—where consumer protections, competition, privacy, and public safety are clearly mandated—and placed them instead in the nebulous and uncharted land of Title I, where regulatory authority is uncertain, consumer protections are virtually non-existent, and where the huge companies are better positioned to wreak havoc on the promise of competition,” Copps said.

To right the wrongs, Copps wants some major changes to reignite competition and return to telecom innovation, eliminating the stagnation we have from today’s cozy, barely competitive marketplace:

1. Learn to say “no” to more industry mergers. Consolidation has not brought communications nirvana for consumers, just higher prices and fewer choices, often from a monopoly provider;
2. Encourage innovative approaches like municipal broadband. Copps: “‘My way or nothing’ may be the mantra of the big guys, but that means no broadband in places they don’t wish to serve.” Copps wants to see the federal government pre-empt state bans on public broadband laws provider-backed ALEC has gotten through legislatures across the country;
3. Smarter stewardship of wireless spectrum, including unlicensed spectrum use, shared spectrum, smarter technology, and a “use it or lose it” policy that pulls back unused/warehoused spectrum held by some of the nation’s largest wireless carriers.