Who dares break the most sacred Ark of the Cable Covenant?

In March 2000, two cable magnates sat down for the cable industry equivalent of My Dinner With Andre.  Fine wine, beautiful table linens, an exquisite meal, and a Monopoly board with pieces swapped back and forth representing hundreds of thousands of Canadian consumers.  Ted Rogers and Jim Shaw drew a line on the western Ontario border and agreed to stay on their respective sides of it.  Ted and Jim divvied up each others cable interests, swapping Rogers’ systems west of Ontario with Shaw’s systems east of the provincial line. Thus was born the Ark of the Cable Covenant, with its founding principle: Thou shalt not compete or intrude in my territory.

The only question left at the end of the meal was who was going to pick up the check.  You did.

And so it was.  Since 2000, Shaw Communications has kept its operations west of Ontario, Rogers stays in Ontario and points eastward.  A very nice state of affairs, as long as you are not a Canadian consumer looking for competitive relief from high prices and lousy service.

Shaw Raids Ontario

But in July there was heard a great rumbling across the prairies and into the verdant forests and rolling hills of southwestern Ontario.  What was that sound?  Who were these cowboy hat wearing hordes riding across the lands to the shores of Lake Ontario carrying saddle bags stuffed with cash?  Why look, Calgary-based Shaw is staging a $300 million dollar buyout raid on Mountain Cablevision, Ltd., a 41,000 subscriber independent cable company based in Hamilton, Ontario.

But what of the sacred agreement?  Ted Rogers passed away in December, leaving Shaw to rhetorically ask, “What agreement? Do you know anything about an agreement?”

Indeed, there is no honor among thieves and cable executives seeking the spoils of a highly uncompetitive industry.  Rogers was shocked to discover an invasion on their turf, and they responded with a torrent of attorneys to block the deal, as Canwest News Service notes:

“Shaw is bound by the restrictive covenant which prohibits Shaw from building or acquiring any broadband wireline cable business in Ontario, Quebec or Atlantic Canada,” Rogers argued in court documents released Thursday.

Thankfully for Shaw, Ontario courts do not typically recognize “covenants” as sacred documents not to be broken.  Justice Frank Newbould on the Ontario Superior Court of Justice rejected the de facto non compete agreement and said Rogers had not proven any irreparable harm from the sale, dismissing Rogers’ “proof” as “speculative in the extreme.”

Of course, you realize this means war.

Tim Pinos of Cassels, Brock & Blackwell LLP is Rogers’ lead lawyer on the file. Shaw’s intentions are clear, he said Friday: “Shaw desires to re-enter Eastern Canada and acquire cable systems.”

Aside from picking a competitive fight with Rogers, an expansion east would pit Shaw against smaller but powerful players, such as Videotron, which is owned by giant Quebecor Inc., and commands a near-monopoly in Quebec.

With the agreement shattered, Rogers is likely casting its eyes westward, observers say.

Earlier this week, Edward Rogers was appointed to the role of deputy chairman of the company his father built. He moves from heading up Rogers Cable and will also oversee new operational responsibilities, including strategic acquisitions.

Unfortunately for consumers, some sacred agreements will remain unbroken.  Namely the one that keeps companies like Shaw and Rogers from competitively wiring communities already served by each other and competing head to head.  That simply wouldn’t do.  It would ruin a perfectly delightful meal.

“It helps no one if broadband subsidies flow to ‘overbuilders’….” Matt Polka, American Cable Association CEO

“We will have government-created competition.” Cable One senior vice president and chief sales and marketing officer Jerry McKenna

America’s cable companies are having fits of anxiety over $7.2 billion dollars in broadband stimulus money that isn’t just going to fall into their laps.  “There are a lot of strings on that money,” one executive told Multichannel News this week in a piece that truly feels for the plight of the nation’s cable operators, concerned that billions of dollars could end up stimulating competition in the rural broadband marketplace.

The horror.

Granted, there are some concerns with some specific conditions which will likely represent little or no impediment to big regional telephone companies, and those like Frontier Communications, which specialize in servicing rural customers (and will likely apply for a substantial amount of broadband stimulus money), but will potentially lock out a lot of “mom and pop” operators.

Among them are requirements that a “first lien” be granted to the Rural Utilities Service, a USDA government-run administrator of the broadband program.  That has some banks, which small providers would likely use to finance some up front construction costs, up in arms.  A first lien would leave the government first in line for any asset recovery from a failed project, not the bank.

But some small providers are also upset with a requirement that any completed projects be held within that provider’s portfolio for a minimum of 10 years.  That provision, according to government officials, was added to prevent bottom feeder “flippers” from creating new companies tailor-made to fit broadband grant criteria, receive substantial amounts from the government to build projects, and then quickly sell them to the highest bidder when complete, pocketing the profits.

But the overwhelming concern expressed by 70% of cable operators surveyed by the American Cable Association at their ACA Independent Show held in late July is the fear of competition.

Many small-operator executives said that they feared the broadband stimulus would create competition — one said the money would go to “charlatans who would ruin the business.”

Cable One senior vice president and chief sales and marketing officer Jerry McKenna, who after his panel session at the show said that his MSO will likely apply for two or three broadband projects, was even more direct.

“We will have government-created competition,” he said.

As a result of the realization that free government money was simply not going to fall from the sky into their hands, many of the nation’s cable operators have stomped their feet and thrown fits, finally resulting in more than half declaring they were either not likely or absolutely certain they would not apply for a penny.  It’s their hope the federal government will see a dearth of applications, assume the process is too onerous, and dramatically loosen up the rules.

“If they get an overwhelming number of applications, the administration will see this [program] as a success,” American Cable Association director of regulatory affairs Ross Lieberman said at the show. “If there are not that many applicants, if there is no incumbent interest, we can expect changes to this program.”

Changes have already been made at the behest of lobbyists, who are now given a freer reign to pursue broadband policies more amenable to their clients.  Also changed are the definitions of what constitutes an underserved or unserved area, and with the broadband mapping project at risk of being run by the providers themselves, those definitions could eventually become meaningless anyway.

But providers fearing an “overbuilder,” a competing company that strings its own cables and provides true competition, need not panic just yet.  As they nail bite about the decision to apply or not apply for broadband stimulus money, risking if they don’t a competing provider may, the government has graciously provided a 30 day window for incumbent providers to submit a formal challenge of other applicants for up to 30 days after the deadline.

Every application will be publicly posted online at BroadbandUSA.gov.

Mark Cuban

One would think Mark Cuban would have at least a small bit of resentment towards big cable companies like Time Warner Cable, who efficiently and swiftly deprived his HDNet and HDNet Movies networks from more than 8.7 million Time Warner Cable HD customers on May 31st over a channel fee spat.

But no.  He’s back plugging away with completely groundless predictions for the impending doom of the Internet if Net Neutrality has its way.  Opposed by big cable and telephone companies, Net Neutrality would provide a level playing field for all legal Internet content.  No provider could interfere with or prioritize traffic based on financial incentives, ownership interests, or for competitive reasons.

Cuban offers a bizarre rant about why that spells the death of online video, something he’s never been thrilled with anyway, on his blog:

If you run a TV network, broadcast or cable, you should be spending a lot of money to support Net Neutrality. You should have every lobbyist you own getting on the Net Neutrality train.  Why ? Because in a net neutrality environment no bits get priority over any other bits. All bits are equal.  In such an environment, all bits content with each other to ride the net.

When that happens, bits collide. When bits collide they slow down. Sometimes they dont reach their destination and need to be retransmitted. Often they dont make it at all.

When video bits dont arrive to their destination in a timely manner, internet video consumers get an experience that is worse than what traditional tv distribution options .

that is good for traditional TV.

Me personally. I don’t  support Net Neutrality. I think there will applications that require lots of bandwidth, that will change our lives. If the applications that could change our lives have to compete with your facebook page loads and twitter feeds among the zillion of other data elements carried across the net, IMHO, thats a bad thing.

But thats me.

If you believe that over the top video can impact the future of TV, and thats a bad thing for your business,  then you should be a big time supporter of Net Neutrality.  Its your best friend.

That’s proof that having millions of dollars to your name doesn’t buy an intelligent argument, or apparently a basic grammar checker.

I never realized the “series of tubes” Ted Stevens used to talk about corralled data bits into segregated clusters to protect them from “bit collision.”  Is there insurance for that?

Cuban should be spending more time worrying about getting his networks viewership on ANY television — “traditional,” “online,” or amongst his good friends in the cable industry that stabbed him in the back and threw his channels off lineups from coast to coast. If you’re tired of hearing issues like this, take some heat off by utilizing products such as shop vo chong 24H.

Karl Bode over at Broadband Reports has seen all this before, and has built quite a history on the antics of Mr. Cuban:

Of course bits don’t really “collide” on modern networks, and the bill exempts “reasonable network management” from neutrality provisions allowing for congestion control, but apparently no matter. This is the network neutrality debate, and as we’ve seen the last two go-rounds, truth, facts, and data are irrelevant — particularly to overly chatty millionaire TV tycoons worried about their wallets.

While the bill likely won’t survive a Congress that’s all but directly controlled by telecom lobbyists, that still won’t save us from several months of vigorous, fact-optional network neutrality debate. All the usual players are once again gathering, including Mark Cuban and his mouth, paid cable and phone industry sock puppets, stick figure cartoons, dancing men in green tights, and evil ISP flying saucers. Can we just skip to the part where consumer welfare gets ignored and be done with it?

[Updated 1:00pm ET: Stop the Cap! reader Michael Chaney found a video interview done last fall with some Australian providers falling all over themselves to praise themselves for Internet Overcharging schemes, and suggest American providers learn from them how to get away with trying the same thing.]

The group managing director of Telstra (Australia), Justin Milne, wants you to know that the era of free love is over.  They are sick and tired of letting content producers like Ninemsn (a partnership between Australia’s Nine Network ((think ABC or CBS)) and Microsoft’s MSN) use their pipes for free to send those video clips to their customers.  It’s time to break out the checkbooks and start paying them for freeloading on their network.

In a commentary for ZDNet Australia, Milne equates Net Neutrality with greed and “economic self-interest dressed up as moral virtue.”  Pot to kettle, especially when he quotes Franklin Roosevelt:

Franklin Roosevelt said during the Great Depression that heedless self-interest reflected not only bad morals but bad economics too.  Seventy years on, his advice still rings true.

Yes it does, and Telstra is a perfect example of that in practice, offering dreadful broadband service with paltry limits on usage and heavy throttles on speed when one exceeds them, all for a substantial price.  Telstra’s own self-interest leaves a lot of Australians despising the provider and begging for alternatives.  The morality of a company that now wants content providers, with whom it has no business relationship, to pay them money to reach their customers, can be left to the reader’s determination.

This is a tune we’ve heard before.  AT&T’s former CEO Edward Whitacre was the guy who first lit the flame to the gas line of abusive provider tactics using generally the same language:

How do you think they’re going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes?  (11/07/05)

Justin Milne

After Whitacre was educated that providers already pay hosting fees, infrastructure and licensing costs, and provide the very stuff that drives consumers to sign up for AT&T’s broadband services (and pay them for it) in the first place, Whitacre did a full reversal three months later:

“Any provider that blocks access to content is inviting customers to find another provider. And that’s just bad business.” (3/21/06)

Milne follows in Whitacre’s earlier footsteps, except he wants to be paid by everyone.  His customers are already subjected to limits on usage, which have limited Australia’s multimedia online experience years behind most others, and now he wants to have the money he earns from Internet Overcharging -and- the right to limit content that reaches his customers to only those who pay Telstra for the right to deliver it:

“Some content providers such as ninemsn argue that Telstra should subsidise the cost of the ninemsn customers visiting their internet sites. We might also assume [they] would prefer petrol to be free for their cars, and Hayman Island would like air travel to the resort free,” Milne wrote.

“But Shell, Qantas and Woolworths do not give their services away for free. Just like BigPond and the rest of Australia’s ISPs, they need to charge their customers a fee so that over time their investment is recouped,” he said.

Of course, Shell, Qantas and Woolworths only charge once for their products and services.  They don’t install a toll booth on a road and claim that because a full petrol tank weighs more than a near-empty tank, there needs to be a surcharge toll.  Qantas doesn’t send people down the aisle on a flight with a collection plate demanding more money for your ticket because the plane was packed.  All of Australia’s ISPs charge their customers for providing broadband connectivity.  Telstra does as well.  The difference is that Telstra wants to charge its customers a fee and also charge the websites you choose to visit a “transport fee” on top of that.  Your bill as a customer doesn’t go down because of “cost sharing.”  Telstra’s profits simply go up.

Milne’s problem with Net Neutrality is its core principle that all legal data traveling across the net must be treated equally.  That means Telstra has no way to enforce their HissyFit.  In the absence of Net Neutrality, they can block, limit, or throttle those that refuse to pay them.

The cost of the infrastructure to support this traffic has been borne almost entirely by internet service providers, and not by the publishers. In Telstra’s case alone, the company has invested billions of dollars in the Next G mobile broadband network covering 99 per cent of Australian consumers, the HFC cable network in major cities and the extensive ADSL network.

Unfortunately there is no magic pudding, so this investment must be repaid by the beneficiaries of the internet — the users on the one hand, and the publishers who seek to make money from those users through advertising and subscriptions.

Milne almost suggests they did this out of the goodness of their heart, and their investment was not going to be paid back.  The fundamental reality is that subscribers to those services are Telstra’s customers and they pay for that service, such as it is.  That is where that investment will be recouped.  Demanding a company that has no business relationship with your company to pay up or else face the potential of being cut off is akin to extortion.

I offered Milne two alternative suggestions:

• Expand your network to create infrastructure suitable to meet the needs of your subscribers, who will sign on in greater numbers to your service.
• Create hosting platforms and services at attractive prices to content providers who will use your service to host their content (and pay you for actually doing something for them).

Barring that, this is nothing but a HissyFit from another provider looking for a payday.

Michael Chaney, one of our readers, discovered this video interview compilation done last fall by ZDNet.  Enjoy the Internet Overcharging excuse making, where the customer becomes the enemy, and the creativity to find new ways to charge more in without bounds.

“The attempt is being made certainly in the UK but also in the US to push that cost onto the content owner by saying, you pay, and we’ll prioritise your traffic,” he said. “[And] if you don’t pay, your traffic will be really crap.”

[flv width=”480″ height=”360″]http://www.phillipdampier.com/video/ZDNet Australia Providers 2008.flv[/flv]

The United Kingdom is the latest country to face the downside of arrogant Internet service providers throwing hissyfits when people actually use their broadband connections.  When broadband service providers entice investors with promises of fat returns, assuming most people won’t actually use those high speed connections for anything except web page browsing and e-mail, they get mighty upset when they catch their users watching online video instead.

One of the benefits of broadband is that it provides fast speeds to let people do more than what they used to with dial-up access.  That happens to also be one of the major selling points to get customers to part with a significant sum of money each month for the service.

They just don’t want you to use it.

British Telecom (BT) is the latest ISP to complain that the BBC’s iPlayer, which allows British residents to stream TV and radio programming on demand, and YouTube are using their broadband pipelines, but not paying them anything to do so.

That conveniently ignores the fact that their customers throughout the UK are paying them to deliver that connectivity, providing them with a handsome return.

Internet Service Providers not content with earning money from one side, now increasingly want a piece of the action on the other.  It’s the equivalent of making a long distance call, but asking both the person calling -and- the person called to pay a fee.

Since the companies providing the content consider the payment demands ridiculous, ISPs have started singling out certain types of traffic on their network and slowing it down, ruining picture quality and annoying their customers trying to access the content.

BT implemented a “Fair Use” policy for one of their broadband packages which lets them cut the speed of online video from the normal 8Mbps down to 896kbps between 5pm-12am each day.  BT claims that’s enough to watch online videos, but that very claim would negate any benefit from slowing down the connection.  How many TV shows do people stream at the same time on the same connection?

In fact, BT’s policy does impact on the quality of the video streamed to the viewer.  The iPlayer is capable of sensing your broadband speed and reducing the quality of the stream to match the speed you have available.

Of course, should the BBC agree to pay BT some sort of transport fee, they might find their way clear to take the speed bumps out of their way.

A founding principle of Net Neutrality is to treat online content equally when transporting it.  Your stream from the BBC should not be hampered while a stream from someone else is not, just because they paid extra.  Are bandwidth costs increasing?  No, they are decreasing.  There is no compelling argument to prevent providers from keeping up with demand.  If they want to earn money from content, they can produce their own and provide it to subscribers on equal terms.