Sources tell Stop the Cap! FairPoint Communications will likely declare bankruptcy as early as this weekend, having failed to survive the crushing debt load it took on over its purchase of Verizon service in three New England states – New Hampshire, Vermont, and Maine.

The catastrophic failure of FairPoint to provide customers with quality service while saddled with enormous debt was never a surprise to those that warned about the perils of approving the transaction at the outset.

The employees of FairPoint are now working on a recovery plan to maintain service and bring back stability to FairPoint customers.  Unlike the senior corporate management of FairPoint, who live in North Carolina far away from the New England nightmares, local employees are committed to bringing their families, friends, and neighbors the service they feel should have been provided by the outset.

What will prevent such a recovery plan from working?  The lenders who hold the paper on FairPoint’s colossal debt and some in FairPoint management who want employee concessions for bad management mistakes.  Wall Street could also move in and demand massive cuts in employees and the infrastructure they need to bring quality service back to northern New England as part of a bankruptcy reorganization.

Once victimized by Verizon, then by FairPoint, and next by Wall Street bankers, the residents of northern New England just can’t win.

The International Brotherhood of Electrical Workers, who were exactly right when they predicted the outcome of the Verizon-FairPoint deal, now could face paying the biggest price for bad management — a loss of their jobs or a cutback in their wages.

Pete McLaughlin Chairman of IBEW SCT-9.  “Demanding cuts in labor costs from employees who aren’t in any way to blame for the company’s woes is the wrong way to go.  The overwhelming burden of billions of dollars in crushing debt cannot be solved by ‘nickel and dime-ing’ our union contracts.  And such attacks will be counter-productive to any attempt to improve operations and the quality of service for our customers.”

Some FairPoint customers want to know, “will those who profited handsomely from the original transaction pay a price?”

As we approach Halloween, it’s time to share a scary story.

The “Reverse Morris Trust” is something a majority of Americans have never heard of before, but if you are a Verizon customer and happen to live in one of 13 states where Verizon is just itching to abandon you, it’s time to learn more about this twister in the tax laws.  A debt-laden phone company may haunt your future.  Another is already haunting millions of New Englanders.

When Verizon throws telephone customers overboard to companies like FairPoint (and Frontier Communications if that deal is approved by state regulators), the company has found a great way to cash out, saddle the buyer in massive amounts of debt, and walk away without paying one cent in taxes.  How?

The Reverse Morris Trust.

To be fair, Verizon is not the first company to use this tax loophole to structure mergers, acquisitions, and spinoffs.  Before 1997, the use of the original Morris Trust provision was commonplace.  A company would split itself into two pieces, one of which would be swapped for stock in an unrelated company.  Then those shares would be redistributed, effectively transferring ownership.  The tax savings were enormous.  A $3 billion dollar sale would normally net the taxman nearly $1 billion in capital gains taxes.  But when using the magic of the Morris Trust, the taxman got $0.00.

In 1997, Congress realized how much tax money they were losing from this loophole.  They enacted Internal Revenue Code Sec. 355(e), which made these transactions taxable.  Or did they?

With billions in savings now potentially gone, businesses started looking for a way around Sec. 355(e) and found one in the Reverse Morris Trust.

Follow this:

A Reverse Morris Trust - "D"=Verizon, "C"=Spinco, "A"=FairPoint or Frontier

Companies involved in a Reverse Morris Trust deal don’t buy and sell from each other directly.  Instead, the seller sets up a new corporation, usually referred to in company financial reports as “Spinco” and conducts the transaction through that entity.

Spinco issues stock (and why not), which is owned by a majority of the shareholders of the parent company cooking up the sale.

When Verizon cast off its New England customers into the fetid waters of FairPoint, it structured the sale as a Reverse Morris Trust.  Verizon “spun off” Bell Atlantic Communications, NYNEX Long Distance, and Verizon New England assets serving Maine, New Hampshire and Vermont into Northern New England Spinco, a new corporation it created just for the deal.  It needed to find a buyer smaller than itself to take advantage of the tax-free magic of the Reverse Morris Trust.  It found FairPoint Communications, a tiny independent phone company based in North Carolina, dwarfed by the three New England states’ Verizon customers.  Imagine living alone in a one bedroom apartment and then letting The Brady Bunch move in with you.

Spinco, by design, has an addiction to piling on debt.  It’s like giving a shopaholic a wallet full of credit cards all issued by Verizon.  Spinco lards itself with as much debt as it possibly can.  When it’s finally teetering under the weight of  as much as $1.7 billion in debt, Verizon effectively sends a bill saying “we want our money — pay us back our $1.7 billion in full.”  Of course, Verizon doesn’t expect to receive the check.  Instead, it demands Spinco pay a “dividend” in the form of an IOU for the entire amount.

Spinco now has a problem.  Its balance sheet looks terrible.  Would you buy a company that has a $1.7 billion liability on its balance sheet?  FairPoint would, but of course, they knew this was part of the plan all along.

FairPoint now seeks to merge with this Spinco company that has more debt than some third world countries.  State regulators announce they have to examine this deal to make sure a company like FairPoint, now proposing to take on Spinco’s debt, will be able to run the company, make investments in its upkeep and expansion, and still pay back the Bank of Verizon, or whoever else ends up owning the IOU.

Regulators (foolishly) go ahead and approve the deal, and the newly merged Spinco and FairPoint issue stock to Verizon shareholders, the original owners of Spinco.  Verizon also gets cash and securities.  Technically, Verizon shareholders now own 60% of FairPoint.  Of course, nobody says every shareholder gets an equal vote.  In the end, FairPoint runs and manages the entire operation, or tries to, saddled with what is now $2.5 billion in debt and on the brink of bankruptcy.

How much did taxpayers lose from all of this?  Considering the spending machine in Washington is going to get the money from somewhere (us), they are going to be looking at you and I for the estimated $700 million Verizon never had to pay in capital gains taxes.

Make your check payable to “U.S. Government” and make sure it’s in the mail by Halloween.

Yes, this scary story is true, and has a sequel: Frontier and Verizon plan to structure their magic deal using the same technique.

Boo!  (Now add another zero on the dollar amount of your check.)

If this new deal is approved, Verizon walks away with $3.3 billion in tax-free cash.  Verizon shareholders (lucky them) get to be owners of just under 70% of Frontier Communications, soon to be saddled with its own Spinco debt which will run well into the billions.  Knowing this, they dump their stock in Frontier in droves as soon as the deal completes.  Why hang around for another financial Titanic to sink like a rock around their portfolio?

Verizon customers get to join the Frontier Family, and those of us who are already members get to see whether Frontier can survive the minimum monthly payment on that debt.

Or maybe not.

A large contingent of the New England Congressional delegation has written a letter to Rep. Charlie Rangel (D-NY), who chairs the Ways and Means Committee responsible for overseeing tax policy in Congress, asking that a stake be driven through the heart of the loopholes in the Reverse Morris Trust.

Reps. Michael Michaud, Chellie Pingree, Peter Welch, Paul Hodes, and Carol Shea-Porter all signed the letter asking Rangel to reform the Reverse Morris Trust (they abbreviate it “RMT”) and take it away from companies like Verizon looking for a tax-free windfall:

We projected that the transaction [FairPoint-Verizon] would have disastrous consequences in our states.  Unfortunately, our concerns were well founded with widespread consumer dissatisfaction evident across the region.

Recently, we have learned that other states across the country face similar threats to service and employment as Verizon, once again, seeks to avoid taxes through the use of the RMT in its proposed transaction with Frontier Communications.

[…]

Now is the time to restrict the utility and benefits of the RMT to protect the public interest.

West Virginians, in particular, have expressed increasing concern about their state following a similar path northern New England took. Frontier would assume control over all of Verizon’s operations across the state of West Virginia.

“I hope this vital request, now based on past history, isn’t ignored again,” said Elaine Harris, International Representative with the Communications Workers of America.  “West Virginia is being given the opportunity to avoid some of the pitfalls of the FairPoint disaster and it would be a real shame if we simply follow the same path and our communications operations end up in bankruptcy.”

Expect the usual Washington lobbyists to fight to preserve the loophole.  Remember, in the world of Halloween telecommunications finance, tax free trick or treat candy is for closers.

This past summer of discontent with FairPoint was not limited to DSL service outages.  The troubled phone company serving Maine, New Hampshire, and Vermont, also annoyed fleeing customers with bills for service long since disconnected.

Nina Mazuzan in Burlington, Vermont was fed up with FairPoint and switched to Burlington Telecom, the municipally owned fiber to the home network serving the Burlington area.

But escaping FairPoint would not be easy.  More than four months after switching, the FairPoint bills kept rolling in, amounting to nearly $200.

“It’s incredibly frustrating,” Mazuzan told WPTZ News.  “It’s just such a waste of time — there’s no real face behind the voice,” she said.

Vermont regulators report Mazuzan is not alone.  The state continued investigating the company and monitoring its performance over the course of the summer.

Company officials told WPTZ, “FairPoint is working to fix its problems.”

[flv width=”480″ height=”360″]http://www.phillipdampier.com/video/WPTZ Plattsburgh State Calls For Fairpoint Communications Investigation 7-14-09.flv[/flv]

WPTZ-TV Plattsburgh covered one Burlington, Vermont resident who experienced months of billing problems with FairPoint back in July. [1 minute]

One of the major consequences of having insufficient experience and resources running a telecommunications network FairPoint inherited from Verizon is that when something goes wrong, it often turns into a catastrophic service failure that leaves people without service for days on end.

As we continue to watch the teetering FairPoint Communications lurch towards either a “white knight” rescue or bankruptcy court, ponder being one of 12,000 Vermont residents who suffered through a DSL service outage that lasted nearly a week this past June.

“The first day I was mad, the next day I was angry, the third day I was begging for Internet service so I could continue on with day to day activities of running a business,” said Bret Knapp, co-owner of Hilltop RV Center in New Haven.

Knapp relies on his FairPoint DSL service to stay in contact with his customers.

Knapp spent hours on the phone with FairPoint customer service representatives in Texas trying to resolve the problem to no avail.  At one point, after 50-60 calls, a FairPoint representative hung up on him.

Beth Fastiggi, a FairPoint spokeswoman agreed the problems were unacceptable.

“We are making significant progress; internally, we still have a lot of work to do,” she told WPTZ news.

The state telecommunications regulator in Vermont told the station complaints regarding FairPoint arrive daily from across the state.

[flv width=”480″ height=”360″]http://www.phillipdampier.com/video/WPTZ Plattsburgh FairPoint Outage Affects 12,000 Vermonters 6-10-09 .flv[/flv]

WPTZ-TV Plattsburgh covers the FairPoint DSL outage that wiped out service for a week for 12,000 Vermont residents. [2 minutes]

Phillip "I Also Told You So" Dampier

This past spring Stop the Cap! started relentlessly documenting the tragic phone and broadband service that came as a result of a lousy phone deal for New Englanders.  Verizon, busily wiring its larger service areas for FiOS fiber to the home service, wanted out of Maine, New Hampshire, and Vermont.  In a uniquely wonderful deal (for them), they not only managed a clean break from too much regulatory red tape, but also sold off the entire operation down to the last cable, phone jack, and building absolutely tax-free to FairPoint Communications, a tiny independent phone company headquartered in North Carolina.

Since the sale, it has been one catastrophe after another:  broken phone and broadband service up to weeks at a time, incorrect billing amounting to hundreds of dollars and collection calls pestering customers for money they don’t owe, investigation after investigation, broken promise after broken promise.  Since we broke from the story back in June to cover some of the nonsense and ripoffs going on in Canada, things have not gotten that much better.  In fact, the company’s stock has since lost 95% of its value, is defending against accusations it manipulated a “test run” of a conversion program to guarantee success (right under the noses of independent observers), a major management shakeup, and now the very real chance the entire mess is headed to Bankruptcy Court.

One member of the International Brotherhood of Electrical Workers, who loudly and, it turns out, very accurately predicted the results of this ill-conceived venture, said FairPoint is now swirling in the bowl, flushing itself, and three states’ telecommunications needs, right down the toilet.

So at the same time Frontier Communications is trying to pick up what Verizon is throwing away this year, it’s very illustrative to continue this story, to educate our readers about what happens when consumers’ needs are totally ignored.  Just as much to blame are the state regulators who are now ironically among the loudest complainers.  As we’ve shown documenting this entire story, they’ve changed their tune dramatically.  Back in 2007, they couldn’t say enough wonderful things about how confident they were in FairPoint, and were certain everything would work out just fine.

It did for them because they are still there, conducting the investigation about how this whole mess got started.

The Nashua Telegraph has followed this sorry story since day one:

Unable to make its massive debt payments, FairPoint will have to file for bankruptcy by month’s end unless it can strike a deal with creditors.

The company is losing land-line customers – and thus, revenue – faster than anticipated. And the celebrated launch of a TV service to compete with cable – a move FairPoint said would bring in the extra income to compensate for the decline in land-line customers – has been put on hold.

“There’s no satisfaction in saying I told you so,” said Rand Wilson, communications coordinator for the two unions that represent most FairPoint workers, which organized a major public campaign in an effort to stop the sale.

“We have to try to provide the best possible service under the circumstances and work with regulators and states to find a way to create a viable company.”

So far, that means trying to fix FairPoint from within, or hope the rumors of a buyout by Windstream, another owner of formerly independent phone companies, turns out to be real. But like FairPoint and Frontier, Windstream itself has a business model running phone service in the areas the big boys don’t want. How much of an improvement that company would provide remains an open question.  Regardless, unless FairPoint works the kind of magic it has never performed for its New England customers, it’s probably only a matter of weeks before bankruptcy:

P.J. Louis, a telecom industry expert and author of 11 books on the various topics within the industry, recently wrote that he thinks it’s a realistic option for the company.

“The more and more I think about it, the more I am convinced that FairPoint needs to file,” Louis wrote in an analysis on the Gerson Lehman Group Web site. “Every horror story you hear just scares the heck out of me. Frankly, I am questioning management’s ability to see the company through this rough time.”