Two weeks ago, New York State’s telecommunications regulator gave Charter Communications 14 days to fully and unconditionally agree to the terms and condition of the 2016 Merger Order that granted the cable company permission to acquire Time Warner Cable. On the last day, hours before the deadline expired, Charter agreed, sort of.

“This replacement letter hereby clarifies that Charter ‘unconditionally accept[s] and agree[s] to comply with the commitments set forth in the body of [the Merger Order] and Appendix A’ as set forth in Ordering Clause 1 of the Merger Order,” wrote Adam E. Falk, senior vice president for state government affairs at Charter Communications.

Unwilling to stop there, Falk decided to make the unconditional acceptance… conditional.

“While Charter’s acceptance of these commitments is unconditional, this acceptance remains subject to applicable law,” Falk wrote. “Charter does not waive its positions as to the meaning or proper interpretation of its commitments (including Charter’s position that the negotiating history of Appendix A must guide such interpretation), or any of its legal rights including its right to seek review of the Commission’s June 14, 2018 Orders and the Commission’s interpretation and application of the January 8, 2016 Order.”

That final paragraph signals the Public Service Commission/Department of Public Service that Charter intends to continue insisting that the language in Appendix A governs, defines, and characterizes the entire Merger Order — an argument the Commission had refused to accept because it gave a foundation for Charter officials to claim they were in full compliance with their commitment to roll out service to an additional 145,000 unserved New York residents. Appendix A omits the purpose and intent of the expansion commitment, explained elsewhere in the Merger Order as providing broadband service in New York’s unserved rural areas. Charter had attempted to count as “new passings” any new expansion of its cable lines, including those in wealthy gated communities and upscale condos, refurbished apartments in New York City, and new housing developments — all likely to receive service without the Merger Order.

AT&T has some expensive legal bills to pay facing down the Justice Department’s objections to its recent expensive acquisition of Time Warner, Inc. But no worries, AT&T’s wireless customers will be helping to pick up the tab after another major hike in an “Administrative Fee” that will raise at least $800 million a year for the phone company.

BTIG Research analyst Walt Piecyk caught AT&T hiking its Administrative Fee twice during the last quarter, now reaching $1.99 a month, billed to every post-paid wireless customer.

AT&T introduced the fee in 2013, claiming it would cover some of AT&T’s costs connecting phone calls and managing its wireless network. It started at $0.61 a month, then increased at some point to $0.76.

Although AT&T received negative press after introducing the fee, for most customers it is just one of several barely noticed charges applied in a separate section of monthly bills usually reserved for mandatory government fees and taxes. Many customers assume the fees are mandated by local, state, or federal governments, but in fact many are actually conjured up by AT&T and pocketed by the company. Most analysts believe companies create these fees to raise revenue without the perception of raising rates.

“The Administrative Fee helps defray certain expenses AT&T incurs, including but not limited to: (a) charges AT&T or its agents pay to interconnect with other carriers to deliver calls from AT&T customers to their customers; and (b) charges associated with cell site rents and maintenance.” – AT&T

Customers are now noticing the $1.99 Administrative Fee and complaining about it, after the company nearly tripled it over the last three months.

Fees and surcharges paid by a typical AT&T wireless customer in Illinois.

“In April of 2018, the Administrative fee increased to $1.26 and in June it rose again to $1.99,” Piecyk writes. “We believe the increase applies to all post-paid phone lines other than perhaps some large enterprise contract customers. We have confirmed that it does not apply to pre-paid lines after some customer service reps incorrectly told us otherwise last night. We believe this fee is included in AT&T’s reported service revenue and ARPU despite AT&T’s accounting change last quarter, which stripped regulatory fees and taxes out of both revenue and cost of service.”

Piecyk calculates that if 85% of AT&T’s 64.5 million postpaid wireless customers are now charged the fee, it will result in $800 million of incremental service revenue annually.

Piecyk is skeptical AT&T needed the money to cover cost increases.

“It’s hard to believe that interconnection costs have increased in the past six months enough to justify this fee increase,” Piecyk writes. “In fact, wireless operators have been crediting LOWER interconnection costs when explaining why their cost of service was in decline. Not surprisingly, we don’t recall any reductions in Administrative Fees by AT&T or its peers associated with reductions in interconnection expenses.”

Tower fees, also mentioned by AT&T, may have increased slightly, but as compensation for building out FirstNet, a public safety/first responder-prioritized wireless network, taxpayers are reimbursing AT&T $6.5 billion of FirstNet’s construction costs, despite the fact FirstNet will also benefit AT&T’s ordinary paying customers who will share the benefits of AT&T’s network expansion.

AT&T’s Administrative Fee hike will play right into the hands of T-Mobile, which has an advertising campaign blasting other wireless companies for sneaky fees. (0:45)

Delrahim

The top antitrust regulator in the United States partly blames CNN for helping AT&T and Time Warner outmaneuver the Justice Department and win approval of their merger, despite antitrust objections.

“We have some of the best and most dedicated public servants who tried this case, but we don’t have the same resources available to us,” Makan Delrahim, assistant attorney general of the United States and chief of the Justice Department’s Antitrust Division told Marketplace Morning Report. “We don’t have a 24-hour dedicated news channel to go out and spin your case to the American public and judges and others as some merging parties might.”

CNN is owned by Turner Broadcasting System, Inc., a division of Time Warner, Inc.

Delrahim admitted the government “is often the underdog in a lot of these cases, and we’re still considering our next steps and whether or not the government will appeal.”

AT&T and Time Warner clearly do not believe the government will further pursue the case, treating the merger as a done deal as the two companies move forward on combining their assets.

Delrahim complained about the judge handling the case, whose ruling excoriated the government’s case and strongly urged the Justice Department to not contemplate an appeal. In Delrahim’s view, the judge gave favorable weight to evidence from the two companies and dismissed much of the evidence the government presented.

“I think eight out of 10 judges may have treated this case differently,” he concluded.

Delrahim expressed his general frustration with government antitrust regulators attempting to impose various deal conditions and limitations designed to mitigate a transaction’s anti-competitive harm in the marketplace.

“If there’s a substantial lessening of competition, that’s the legal test, then the transaction is illegal,” Delrahim said. Instead of that simple test, the antitrust division often tries to rescue troublesome transactions with deal conditions he calls “microengineering an industry which is dynamic,” and in his view, is contrary to the role Congress assigned to the Antitrust Division. “I think the role is you go in, if there’s problematic aspect of a transaction, you divest and you let the market decide what the prices are now.”

“So the idea is: the greater the competitive process, the better the price ultimately will be, or the better the products will be for the consumer. And that’s where you have fair competition in the marketplace,” he added. “Our job is to police that. It isn’t to keep companies from getting too big. If they’re better at what they do, if customers like what they do, more power to them. The free market system encourages that. And we shouldn’t punish them once they have reached a certain level of success. If they are too big though, they also got to be careful. They can’t take anti-competitive practices that harms competition, which ultimately harms consumers.”

Customers in several midwestern states around Chicago have today reported to Stop the Cap! Comcast has provisioned a speed change on their internet accounts with no advance warning or notice, raising download speeds from 100 Mbps to 150 Mbps but cutting upload speeds in half — from 10 Mbps before to 5 Mbps.

The changes seem to impact customers on the midwestern region Blast plan, which was sold in many areas around Chicago with speeds of 100/10 Mbps. Some customers logging into their accounts today see a unilateral plan change there as well — one they never asked for, reflecting the changed speeds:

Comcast has yet to respond to our inquiry about the confusion. Some customers are being told the plan change is in error, at least with respect to upload speeds. It would be unprecedented for Comcast to reduce customer speeds when making speed adjustments. If you are in the midwest and subscribe to this tier, what speeds are you getting today and what does your account profile show with respect to your current internet plan?

Updated 9:01pm EDT — Comcast has responded: “We plan to increase speeds in our central division next month and will share more details soon. It’s important to note that upload speeds will not change as part of that announcement.”

We remain uncertain why current speeds seem to have declined in some areas, which was not addressed.

Updated 9:15pm EDT — Some of the speed changes appear to be related to soft-launched speed upgrades in the Central U.S. division (Alabama, Arkansas, Florida, Georgia, Indiana, Illinois, Kentucky, Louisiana, Michigan, Mississippi, South Carolina, and Tennessee). The Performance tier that used to be 100/10 Mbps is increasing to 150/10 Mbps and the Extreme tier which was 150/20 Mbps previously is upgraded to 250/20 Mbps. You may need to briefly unplug your modem/gateway to receive the new speeds.

Updated June 27 11:10am EDT — Comcast has officially confirmed the upload speed reductions were in error. Customers that still find their upload speeds reduced should reset their modem, and upload speeds of at least 10 Mbps should be restored. The company’s forthcoming speed increases will maintain current upload speeds.

New York’s top telecommunications regulator has called Charter Communications a purveyor of fake ads, deception, and broken promises and has again called into question how much longer the company should be allowed to do business in New York State.

The New York State Department of Public Service/Public Service Commission today sent a letter to Charter Communications CEO Thomas Rutledge condemning Spectrum’s false and misleading advertising campaigns and the ongoing deception of New York consumers about its expansion efforts. The letter warned Rutledge Charter must immediately cease and desist airing fake ads about the company’s efforts to expand critical broadband service across the state. The letter also warns that if the misrepresentations and unacceptable way Spectrum conducts its business in New York does not stop, the company could find itself out of business in New York State.

“The situation regarding Charter/Spectrum is getting more serious with each passing day,” Department CEO John B. Rhodes said. “Not only has the company failed to meet its obligations to build out its cable system as required, it is now making patently false and misleading claims to consumers that it has met those obligations without in any way acknowledging the findings of the Public Service Commission to the contrary. Access to broadband is essential for economic development and social equity. Charter/Spectrum’s intentional deception of New Yorkers must end now.”

So far, Charter has ignored the Public Service Commission’s June 14 order demanding Charter indicate full and unconditional acceptance of the 2016 merger agreement and the terms it contained. The deadline for Charter or its attorneys to respond is this Thursday, June 28, 2018. If the deadline passes with no response, the Commission warned it may rescind, modify, or amend the approval order granting the merger, file a lawsuit in the Supreme Court of New York to potentially cancel the merger, and fine Charter for being out of compliance with state law.

Letter from New York regulators to Charter Communications (click image to download or view complete letter).

Charter’s Fake Ads

Rhodes

The letter accuses Rutledge of knowingly misleading New York customers in its advertising and printed materials that claim Charter has fully complied with — and exceeded — its commitments to New York under a merger agreement with the state allowing Charter to acquire Time Warner Cable systems. The letter emphatically states these representations are demonstrably and materially false.

State regulators pointed to Charter’s historic and systematic pattern of false advertising, noting a 2017 lawsuit filed by New York’s Attorney General over the company’s inability to provide advertised speeds has survived several company challenges in court and is moving forward.

The Merger Itself is in Peril

Charter will face the possibility of additional legal troubles as the PSC refers Spectrum’s latest conduct to the Attorney General’s office for possible further legal action. State regulators also suggested Charter was materially deceiving investors in violation of federal securities laws by not disclosing the company’s failure to honor its commitments to New York and warning investors the merger itself was now in significant peril if it is revoked in New York.

Regulators have also put Charter executives on notice that in advance of a possible penalty action by the Commission against the company directly, it further demanded that Spectrum produce records regarding its false representations and preserve all documents, including email, text messages, voice mail, recordings, and other documentation relating to its advertising claims.

A Record of Failure in New York

According to a PSC investigation and a Public Service Commission order, Spectrum missed its required December 16, 2017 build-out commitment to extend its network to pass additional residences and businesses by 12,245 passings. Spectrum also failed to cure, as required, its earlier failure by March 16, 2018. For these two failures, Spectrum was ordered by the Public Service Commission to forfeit $2 million. These failures came on top of earlier failures by Spectrum to meet its commitments. The PSC argues Spectrum has not met a single build-out deadline since the approval of its acquisition of Time Warner Cable in 2016.

The PSC stated that, instead of working to meet its commitments to New York, Charter executives have ignored state regulators as Spectrum knowingly continued to advertise and publish false claims that the company is exceeding its mid-December 2017 commitment made to New York by more than 6,000 locations and is on track to extend the reach of advanced broadband network to 145,000 unserved or underserved locations by May 2020. Both claims are patently false, claims the PSC.

“Spectrum’s failure to meet its build-out commitments hurts unserved and underserved New Yorkers, leaving them without a key public utility service crucial to their future success and well-being,” the regulator wrote.

“Spectrum’s publication of claims that it knows are false harm all consumers who rely on honest and accurate information in choosing suppliers from among competitors,” the PSC wrote. “And when Spectrum continues to advertise and publish false claims even after being directed not to by its governmental regulator, it demonstrates deliberate disregard and lack of respect for the Public Service  Commission, the rule of law, and regulation in New York State. Accordingly, in the name of customers and potential customers, the Department called on Spectrum to set the record straight by advertising and publishing the truth that the company has been found by the Public Service Commission to have failed to keep its buildout commitment to New York State.”

Charter Communications produced this video incorporating similar elements used in its advertising targeting New York consumers. Charter does not mention its investment in rural broadband in New York is not altruistic. It was a core condition the company agreed to as part of a settlement with the New York Public Service Commission to approve the acquisition of Time Warner Cable in 2016. (1:36)