New York’s Public Service Commission (PSC) has come under fire in an audit by State Comptroller Thomas DiNapoli for “falling short” monitoring Charter Spectrum, Altice-Optimum, and Windstream, some of the state’s largest telecom companies.

“When New Yorkers flip on the lights, log in or make a call, they should be confident that someone is making sure these service providers are living up to their promises,” DiNapoli said. “My auditors found the state Public Service Commission was not doing enough to make sure utilities are holding up their end of the deal. PSC lacked critical equipment to do its job and rarely inflicted financial consequences when companies did not deliver. This has to change.”

The audit found that the regulator was often arbitrary in its orders, frequently failed to verify compliance of conditions imposed on providers, and quietly dropped compliance penalties including fines and merger revocation orders when the Commission faced pushback from companies.

Most of the audit’s criticism was directed at how the PSC managed the 2016 merger-acquisition of Time Warner Cable by Charter Communications (better known as Spectrum). The merger was approved after Charter agreed to ten deal conditions. But DiNapoli’s auditors found Charter failed to either complete four of these conditions or the PSC failed to verify they were completed. New York also lost the opportunity to collect $5 million from Charter’s failure to meet its rural broadband commitments. Instead, the PSC settled for $1 million and agreed to extend the deadline for Charter to expand its rural footprint, rewarding the company for its failure.

DiNapoli’s audit criticized the PSC’s verification procedures to determine if Charter adequately upgraded its cable systems to all-digital technology and raised broadband speeds by the end of 2018. Instead, the Comptroller found the Commission often took Charter’s word for it because it lacked the equipment and resources to independently verify Charter’s performance.

DiNapoli

The auditors also complained Charter offered scant evidence of compliance with two other terms of its merger approval agreement — wiring 50 community locations for free broadband service and investing at least $50 million to improve service quality for New York customers. The audit found no evidence Charter had wired any community locations for free broadband service, and the Commission failed to verify Charter made suitable investments in service improvements by its May 2018 deadline.

The Commission disagreed with several of the audit’s findings. The Commission claimed it held comprehensive proceedings to review the Charter acquisition of Time Warner Cable, imposed deadlines on the conditions, and eventually threatened to revoke Charter’s cable franchises for the company’s failure to comply with its orders.

“After pursuing escalating enforcement actions, the Commission in mid-2018, revoked the merger authorization,” the Commission responded. “This final enforcement action which revoked the company’s authorization to operate in in the state set an important precedent in New York — and across the nation — as this type of enforcement remedy had not been previously utilized in the regulatory community. Ultimately, the enforcement action was settled in a manner that resulted in a company commitment to expand its network entirely Upstate at an estimated cost of more than $600 million, more than twice the original estimate at the time of the merger approval, and $12 million paid by the company in lieu of penalty for additional network expansion work.”

The settlement effectively rendered the PSC’s fines against Charter for not meeting its rural broadband expansion deadlines moot. The Commission argued New Yorkers benefited more from Charter’s additional commitments to expand its cable footprint even further than originally envisioned.

“The Department utilizes penalty actions in a strategic manner to address violations,” the Commission explained. “It can be more beneficial to the state’s customers to obtain at shareholder expense expanded infrastructure, reductions in rates, or improvements in customer service rather than imposing financial penalties, and when that is the case, the [Commission] does indeed prefer the best response for customers.”

But DiNapoli’s audit noted that utilities are well aware of how to avoid paying fines by delaying their collection indefinitely through legal remedies. The audit slammed the PSC for walking away from collecting the fines owed, noting it “creates a lack of accountability and inspires little motivation to stay in compliance.” It also complained that regardless of what additional remedies the PSC extracted from Charter in a final settlement, tens of thousands of rural New Yorkers remain without the internet service they were promised, and will probably have to wait until as late as 2021 to get it.

“As it has been over three years since the merger was approved, network expansion should have already been provided to approximately 126,875 unserved or underserved premises based on the 2016 Commission Order approving the merger,” the audit found. “As of July 2019, Charter had only extended its network to 64,827 premises. Based on the original Order, 62,048 additional customers should have received access to these services. Charter now has until September 2021 to complete the network expansion of 145,000 premises previously scheduled to be completed by May 2020.”

The PSC also claimed it was distracted by legal actions it was taking surrounding the revocation of the merger’s approval, but after the case was settled, the Commission did undertake random speed testing to verify Charter had raised the broadband speeds as agreed in the merger agreement.

“Staff is confident that, in all areas field tested to date, the Charter network is capable of providing broadband service with download speed in excess of 300 Mbps, and the network itself has the potential to provide download speed beyond 1 Gbps. In fact, the company is marketing 1 Gbps service in much of the New York State service footprint,” the Commission argued.

The Commission confirmed Charter has not yet showed it is providing free broadband service to 50 community service locations, such as libraries, schools, or town halls. Charter initially refused to provide information about the service locations it selected for complimentary service “for privacy reasons.” But since the Commission placed no deadline on complying with this condition, it cannot penalize Charter for not meeting it on a timely basis.

“After multiple discussions, Charter finally provided a list of the 50 Anchor Institutions on July 17, 2019 and included bill copies and/or account screen shots demonstrating no charge for broadband service to these institutions,” the Commission responded. “Staff has been able to independently confirm that 33 of the 50 institutions are receiving broadband service from Charter at no charge. For the remaining institutions, Charter was asked to provide additional evidence that these institutions have been provided this complimentary service. If Charter cannot definitively demonstrate that the 17 institutions are receiving free service, Charter must select a replacement institution in order to fulfill this condition. Once Charter has provided this information, Staff will then begin its independent confirmation.”

The Commission also claims Charter met its obligation to invest at least $50 million in service improvements.

“In its May 2018 Annual Update, Charter provided a list of expenditures totaling over $90 million to comply with this condition. From that list, Staff identified completed projects totaling approximately $70 million that were dedicated to New York State. To verify these expenditures, Staff requested and analyzed actual invoices to determine whether the expenditures were made,” the Commission claimed.

The audit found some of these same issues also applied to two other telecom merger and acquisition deals impacting New York consumers. Altice’s acquisition of Cablevision’s Optimum cable service received approval with five deal conditions. The audit found the Commission failed to adequately verify compliance with three of those conditions, relating to internet speed and performance, free broadband service to 40 community institutions, and improvements to customer service requiring Altice to fix customer issues within two days. The Commission responded that its belated verification found no non-compliance, but the audit urged the Commission not to delay its verification procedures going forward.

FairPoint is now known under the name of its owner, Consolidated Communications.

FairPoint Communications offers telephone and internet service to 13,700 customers in a few rural communities in New York. Its new owner, Consolidated Communications, was required to implement eight deal conditions, and the audit found it failed to meet two of them. FairPoint was required to invest at least $4 million in network reliability and service quality improvements, including the expansion of internet access service to at least 300 additional locations. FairPoint submitted an expansion plan, and updated reports, including the number of locations completed which is claimed to be over 300.

But the audit found the Commission failed to verify these claims, citing inadequate staffing to visit FairPoint’s rural service areas to perform field inspections. The audit found the Commission didn’t bother to verify service improvements in any location. Another deal condition was designed to protect FairPoint’s “customer-facing” employees from layoffs. Soon after the merger, “FairPoint reclassified 9 of the 39 customer-facing positions and ultimately eliminated them, claiming they ‘duplicated work being performed in other work centers.'” The audit’s initial findings triggered an investigation by the PSC to determine if FairPoint violated the terms of its merger order. Ultimately, the Commission found it did not, but the audit warned the PSC was completely unaware of the employment changes until the audit discovered them.

The Comptroller’s Office made four recommendations the PSC should either implement or improve:

1. Actively monitor all conditions listed in Orders to ensure all utilities are in compliance.
2. Develop and issue Orders that include well-defined, measurable, and enforceable conditions. The Orders should also include the consequences for non-compliance, as appropriate.
3. Verify the accuracy of data submitted by utilities that is used by the Commission or Department to evaluate or make decisions concerning the utilities. This includes data submitted for performance metrics, safety standards, and Utility Service Quality Reports.
4. Develop policies and procedures that provide employees with standard monitoring steps to perform when overseeing compliance with merger or acquisition Orders, as well as steps addressing the auditing of data submitted in support of Utility Service Quality Reports.

Just shy of 10 years after FairPoint Communications acquired Verizon’s landline properties in the northern New England states of Maine, New Hampshire, and Vermont, both the company and its name are disappearing forever.

Consolidated Communications, which announced it would acquire FairPoint in December 2016, intends to put FairPoint’s name and reputation behind it, and is rebranding the phone company as Consolidated Communications with plans for significant broadband upgrades for its customers.

FairPoint bought the assets of Verizon’s landline network in the three northern New England states in 2007 for $2.4 billion. The transition from Verizon to FairPoint did not go well, and the company stumbled for years trying to keep up with billing and service problems and the need to continually expand broadband service to stay competitive, all while also trying to pay off the debts it incurred in the acquisition. The company failed on all accounts and declared bankruptcy in 2009, eventually emerging with a new business plan in 2011.

FairPoint’s performance post-bankruptcy has relied on cautious spending, cost-cutting measures and benefits cutbacks for its employees, which triggered a 131-day strike in 2014 among FairPoint’s union workforce — the longest walkout of any company that year. Replacement workers sent in to handle service calls and network maintenance were criticized by customers and lacked experience to manage New England’s rough winters.

By early 2016, executives claimed their “turnaround” plan for FairPoint had made significant strides. By that summer, activist shareholders were demanding FairPoint be put up for sale, in part to allow them to quickly recoup their investments in company debt that could not be monetized unless another company acquired FairPoint and assumed those debts.

In late 2016, Consolidated Communications did exactly that, acquiring FairPoint’s assets in northern New England and many other states where it operates small phone companies for $1.5 billion — a significant drop in value for assets that sold for nearly $1 billion more nine years earlier.

Rob Koester, Consolidated Communications vice president for consumer products clearly wants to put FairPoint behind him.

“It is a new beginning,” he said. “It’s a new chapter for us. It’s a re-dedication to our customers.”

Some of the biggest planned changes appear to be more job cuts. Consolidated recently eliminated FairPoint’s state president positions in Maine, New Hampshire, and Vermont and will depend on regional management instead. The phone company will also once again face negotiations with unions that represent much of its workforce later this year. Most expect the unions will not be friendly to anticipated company efforts to further consolidate and reduce benefits.

Promised broadband upgrades from speed increases come with few details, except a broad commitment to raise speeds for 300,000 internet customers over the course of this year — which represents about 30% of FairPoint customers. Spokeswoman Angelynne Amores claims there will be no price hikes for faster internet speeds.

But Consolidated will also be under the watchful eye of Wall Street, which does not want the company to invest too much in broadband upgrades until shareholders are comfortable with the company’s financial future. There are few business successes in wireline acquisitions and mergers these days, as Frontier Communications can attest from its purchase of Verizon’s network in Florida, California, and Texas.

Any upgrades cannot come soon enough for FairPoint customers forced to endure its DSL service as their only internet access option.

Michael Charter, a FairPoint customer in Jericho, Vt., lives just outside the state’s largest city, Burlington, where there are several internet service providers. But in his part of Jericho, FairPoint is the only broadband provider available, and it does not come close to offering actual broadband speeds.

Charter told the Associated Press his current solution is to buy two DSL accounts from FairPoint and divide up the load from his family’s streaming, internet browsing, downloading and telecommuting across two different accounts. His television and computers share one FairPoint DSL account hooked up to one router while other internet usage is confined to a second router connected to a second account. FairPoint is unable to bond the two connections together to increase speed, so two slow DSL lines is the best option for him for now.

Consolidated isn’t likely to make a lot of money taking over FairPoint’s residential and business landlines or DSL accounts. But it could earn substantial revenue from FairPoint’s extensive fiber network laid across the three northern New England states it serves. Companies and public institutions rely on fiber connectivity, as do cell towers — including the future swarm of 5G small cells expected to eventually be placed across the phone company’s footprint.

The phone company’s biggest rival is Comcast, which has some cable coverage in the region, but large sections of all three states are bypassed by Comcast and Charter Communications, which has a substantial presence in eastern Maine.

An activist group of shareholders led by a hedge fund has successfully pressured executives at FairPoint Communications to sell the company to maximize shareholder value.

The buyer, Illinois-based Consolidated Communications Holdings, Inc., said on Monday it would acquire FairPoint in an all-stock deal worth $1.5 billion, debt included.

The buyout will enrich certain shareholders and hedge funds, including Maglan Capital’s David Tawil and Steven Azarbad, who blasted FairPoint CEO Paul Sunu in a letter sent earlier this summer complaining “shareholders have been extremely patient with the company’s operational turnaround and have suffered because the board has not been vigilant in protecting shareholder value.”

Maglan will cash out its investment initially made after FairPoint went bankrupt, when the share price was below $4. As of 4pm this afternoon, FairPoint stock was trading at $18.85 a share, less than the $23 a share and 75% premium Tawil and Azarbad were hoping for back in August. But they will still walk away earners, selling at around $18 a share plus an additional 17.3% premium. Collectively, the two hedge fund managers control 7.6% of FairPoint’s shares.

Consolidated Communications will inherit residential FairPoint phone and broadband customers in 17 states, most notably those in Maine, New Hampshire, and Vermont. But press releases from Consolidated showed little interest in the residential telecommunications business. Instead, Consolidated executives are looking at FairPoint’s business and enterprise customers, and the benefits of owning FairPoint’s 17,000 fiber route mile network.

Critics suggest the deal effectively enriches shareholders while putting FairPoint’s existing debt and buyout on the new owner’s credit card. Consolidated will inherit $887 million of FairPoint’s current debt plus the $1.5 billion cost of the acquisition.

The combined company will keep the Consolidated Communications name and FairPoint Communications as a brand will eventually disappear if regulators approve the transaction sometime in 2017.

Consolidated Communications currently serves residential phone customers in:

• Suburban/Exurban Sacramento, Calif.
• Fargo, N.D.
• Mankato, Minn.
• West Des Moines, Ia.
• Suburban Kansas City, Kan.
• Mattoon, Ill.
• Lufkin, Conroe, and Katy, Tex.
• Suburban Pittsburgh, Pa.

FairPoint workers on strike in the fall of 2014. (Image: Labor Notes)

FairPoint customers and state regulators in New England expressed concern about the transaction. After FairPoint acquired landlines formerly owned by Verizon Communications a decade ago, the transition was described as “disastrous” by regulators, who received scores of complaints about service and billing problems before FairPoint ultimately declared Chapter 11 bankruptcy, mired in debt.

After emerging from bankruptcy, FairPoint has endured union strikes and was assessed multiple fines for failing to meet service quality standards in Maine.

“The last time these assets were sold to FairPoint it was a disastrous outcome for Maine customers,” says Tim Schneider, Maine’s Public Advocate, who represents consumers on utility matters.

Schneider told Maine Public Radio he is planning to scrutinize the deal to prevent further problems, but customers in Maine, New Hampshire, and Vermont are already expressing concern regulators are just as likely to rubber stamp this sale just like the last one, further saddling them with problematic service.

The owners of Maglan Capital are pleased with themselves, tweeting out this is a “December to Remember.”

One transaction done this month on FairPoint $FRP $CNSL. $GSAT $MVN $MDLNF on the queue next #DecembertoRemember

— Maglan Capital (@MaglanCapital) December 5, 2016

After years of financial problems, union problems, and service problems, customers of FairPoint Communications in northern New England report the company has stabilized operations and has been gradually improving service. A hedge fund holding 7.5% of FairPoint agrees, and is now pressuring FairPoint’s board of directors to sell the company, allowing shareholders that bought FairPoint stock when it was nearly worthless to cash out at up to $23 a share.

That almost guarantees shareholders a huge profit while likely saddling whoever buys FairPoint with the same kind of sale-related debt that bankrupted FairPoint in 2009.

Maglan Capital’s David Tawil and Steven Azarbad communicated their displeasure to FairPoint CEO Paul Sunu in a letter earlier this summer that complains “shareholders have been extremely patient with the company’s operational turnaround and have suffered because the board has not been vigilant in protecting shareholder value.”

“Not as patient as FairPoint’s own customers that spent several years of hell dealing with Verizon’s sale of its landlines in Vermont, New Hampshire, and Maine,” said FairPoint customer Sally Jackman, who lives in Maine. “It looks like the hedge funds want their pound of profits from another sale, exactly what FairPoint customers don’t need right now.”

Jackman endured three weeks of outages after FairPoint took over Verizon’s deteriorating landline networks in northern New England. The nearest cable company – Time Warner Cable, is almost 50 miles away, leaving Jackman with FairPoint DSL or no broadband service at all.

“Wall Street doesn’t care, they just want the money,” Jackman added. “They probably assume Frontier will pay a premium for FairPoint and then we can go through the kind of problems customers in Texas and Florida dealt with for over a month.”

The hedge fund managers argue that FairPoint “has made enormous strides” and notes “revenue is stabilizing and growth is coming.”

Maglan is well positioned to cash out with an enormous gain, having been an investor in FairPoint since the phone company declared Chapter 11 bankruptcy almost six years ago. The fund held shares when their price dipped below $4. Now, assuming FairPoint will put shareholders first “in ways that other wireline telecom companies do,” investors like Maglan hope to see a sale at a share price of $23, a 75% premium.

“With the company’s labor challenges behind it and with it $700 million of long-term debt removed from FairPoint’s balance-sheet, the time has come for the company to be sold or to be merged into a peer,” the hedge fund managers write.

Tawil (L) and Azarbad (R)

Maglan recommends the company be sold to Communications Sales & Leasing, a tax-sheltered Real Estate Investment Trust spun off from Windstream with no current experience running a residential service provider. CS&L primarily provides commercial fiber services for corporations, institutions, and cell phone towers. Shareholders would benefit and CS&L would benefit from diversification, argues Maglan. But the hedge fund has nothing to say about the sale’s impact on FairPoint customers.

Maglan also demanded that while FairPoint explored a sale of the company, it must turn its investments away from its network and operations and start “generating value for shareholders immediately.” Maglan wants FairPoint to turn spending towards a $40 million share repurchase program (to benefit shareholders with a boost in the stock price) and initiate a recurring shareholder dividend payout. To accomplish this, FairPoint will have to designate much of its $23 million of cash on hand and a hefty part of the $52 million of free cash flow anticipated in 2016 directly to shareholders. The company may even need to tap into its revolving credit line if financial results are worse than expected.

Tawil and Azarbad characterize their plan as “well within the range of comfort.”

“It is high-time that the company and the board turn its attention directly to shareholders and, specifically, unlocking shareholder value,” the hedge fund managers add. “We have been a very patient group.”

But perhaps not as patient as they thought. This week, Maglan demanded that FairPoint remove four of its board members — Dennis Austin, Michael Mahoney, David Treadwell and Wayne Wilson, demanding they “immediately tender their resignations” and warned Maglan would push for a special meeting if no action was taken. The reason? Tawil and Azarbad said they did not think the four were “critical to the board in any way.”

“Wall Street has been about as useful as cancer for those of us trying to communicate with the outside world up here,” Jackman said. “I hope all three states get copies of these temper tantrums, because if FairPoint does sell, maybe this time they won’t approve the deal. After all, even the Titanic only sank once.”

Phillip Dampier: One customer calls FairPoint’s deregulation logic “moosepoop.”

In 2007, Verizon Communications announced it was selling its landline telephone network in Northern New England to FairPoint Communications, a North Carolina-based independent telephone company. Now, nearly a decade (and one bankruptcy) later, FairPoint wants to back out of its commitments.

In 2015, FairPoint stepped up its push for deregulation, writing its own draft legislative bills that would gradually end its obligation to serve as a “carrier of last resort,” which guarantees phone service to any customer that wants it.

The company’s lobbyists produced the self-written LD 1302, introduced last year in Maine with the ironic name: “An Act To Increase Competition and Ensure a Robust Information and Telecommunications Market.” The bill is a gift to FairPoint, allowing it to abdicate responsibilities telephone companies have adhered to for over 100 years:

• The bill removes the requirement that FairPoint maintain uninterrupted voice service during a power failure, either through battery backup or electric current;
• Guarantees FairPoint not be required to offer provider of last resort service without its express consent, eliminating Universal Service requirements;
• Eliminates a requirement FairPoint offer service in any area where another provider also claims coverage of at least 94% of households;
• Eventually forbids the Public Utilities Commission from requiring contributions to the state Universal Service Fund and forbids the PUC from spending that money to subsidize rural telephone rates.

Such legislation strips consumers of any assumption they can get affordable, high quality landline service and would allow FairPoint to mothball significant segments of its network (and the customers that depend on it), telling the disconnected to use a cell phone provider instead.

FairPoint claims this is necessary to establish a more level playing ground to compete with other telecom service providers that do not have legacy obligations to fulfill. But that attitude represents “race to the bottom” thinking from a company that fully understood the implications of buying Verizon’s landline networks in a region where some customers were already dropping basic service in favor of their cell phones.

FairPoint apparently still saw value spending $2.4 billion on a network it now seems ready to partly abandon or dismantle. We suspect the “value” FairPoint saw was a comfortable duopoly in urban areas, a monopoly in most rural ones. When it botched the conversion from Verizon to itself, customers fled to the competition, dimming its prospects. The company soon declared bankruptcy reorganization, emerged from it, and is now seeking a legislative/regulatory bailout too. Regulators should say no.

Last week, even FairPoint’s CEO Paul Sunu appeared to undercut his company’s own arguments for the need of such legislation, just as the company renewed its efforts in Portland to get a new 2016 version of the deregulation bill through the Maine legislature.

“We’ve operated in and we have experience operating basically in duopolies for a long time,” Sunu told investors in last week’s quarterly results conference call. “Cable is a formidable competitor. Look, they offer a nice package and a bundle and they – in certain areas, they certainly have a speed advantage. So we recognize that and so our marketing team does a really good job of making sure that our packages are competitive and we can counter punch on a both aggregate and deconstructive pricing.”

“Our aim is not to be a low cost, per se,” Sununu added. “What we want to do is to make sure that people stay with us because we can provide a better service and a better experience and that’s really what we aim to do. And as a result, we think that we will be able to change the perception that people have of Fairpoint and our brand and be able to keep our customers with us longer.”

Paul H. Sunu

Of course customers may not have the option to stay if FairPoint gets its deregulation agenda through and are later left unilaterally disconnected. In fact, while Sunu argues FairPoint’s biggest marketing plus is that it can provide better service, its agenda seems to represent the opposite. AARP representatives argued seniors want and need reliable and affordable landline service. FairPoint’s proposal would eliminate assurances that such phone lines will still be there and work even when the power goes out.

At least this year, customers know if they are being targeted. FairPoint is proposing to immediately remove from “provider of last resort service” coverage in Maine from Bangor, Lewiston, Portland, South Portland, Auburn, Biddeford, Sanford, Brunswick, Scarborough, Saco, Augusta, Westbrook, Windham, Gorham, Waterville, Kennebunk, Standish, Kittery, Brewer, Cape Elizabeth, Old Orchard Beach, Yarmouth, Bath, Freeport and Belfast.

At least 10,000 customers could be affected almost immediately if the bill passes. Customers in those areas would not lose service under the plan, but prices would no longer be set by state regulators and the company could deny new connection requests.

FairPoint argues that customers disappointed by the effects of deregulation can simply switch providers.

“The market determines the service quality criteria of importance to customers and the service quality levels they find acceptable,” Sarah Davis, the company’s senior director of government affairs, wrote. “To the extent service quality is deficient from the perspective of consumers, the competitive marketplace imposes its own serious penalties.”

Except FairPoint’s own CEO recognizes that marketplace is usually a duopoly, limiting customer options and the penalties to FairPoint.

Those customers still allowed to stay customers may or may not get good service from FairPoint. Another company proposal would make it hard to measure reliability by limiting the authority of state regulators to track and oversee service complaints.

Company critic and customer Mike Kiernan calls FairPoint’s legislative push “moosepoop.”

“FairPoint has been, from the outset, well aware of the issues here in New England, since they had to demonstrate that they were capable of coping with the conditions – market and otherwise – in their takeover bid from Verizon,” Kiernan writes. “Yet now we see where they are crying poverty (a poverty that they brought on themselves) by taking on the state concession that they are trying desperately to get out from under, and as soon as possible.”

Vermont Public Radio reports FairPoint wants to get rid of service quality obligations it has consistently failed to meet as part of a broad push for deregulation. (2:23)

You must remain on this page to hear the clip, or you can download the clip and listen later.

Kiernan argues FairPoint should be replaced with a solution New Englanders have been familiar with for over 200 years – a public co-op. He points to Eastern Maine Electrical Co-Op as an example of a publicly owned utility that works for its customers, not as a “corporate cheerleader.”

Despite lobbying efforts that suggest FairPoint is unnecessarily burdened by the requirements it inherited when it bought Verizon’s operations, FairPoint reported a net profit of $90 million dollars in fiscal 2015.