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

Expect a notice similar to this in a future cable or telephone company bill.

Cable and phone companies will now need your permission before they can market sensitive private information about you to third parties.

In a 3-2 decision (Democrats in favor, Republicans opposed), the Federal Communications Commission today issued new rules that will limit how providers collect and share information about your location, the websites you visit, and the subjects you are interested in based on your online travels. Broadband providers will have to get explicit approval from their customers before they can trade or sell information they have gathered. Providers will still be able to sell your name and address to advertisers, as long as they offer a provision allowing customers to opt-out of shared marketing.

The FCC’s decision has major implications for providers’ future revenue from lucrative targeted advertising. For that reason, and others, providers were angered by the new restrictions, particularly because they don’t apply to content providers like Google, which was largely built on revenue from targeted web advertising. Consumers can avoid using Google and its services, but they cannot avoid their broadband provider, which may be why the FCC targeted the privacy measures on those selling broadband instead of those pushing web content.

Wheeler

“It is the consumer’s information. How it is to be used should be the consumers’ choice, not the choice of some corporate algorithm,” said FCC chairman Thomas Wheeler.

The two Republicans on the Commission immediately attacked the privacy protections as unnecessary, echoing the sentiments of the cable and phone companies.

Commissioner Michael O’Reilly warned broadband providers could still buy the information they would have collected themselves, and as a result, prices will rise for consumers. Commissioner Ajit Pai accused the Democrats on the Commission of “corporate favoritism” towards Google.

Here are the full details about the new privacy policies:

The rules separate the use and sharing of information into three categories and include clear guidance for both ISPs and customers about the transparency, choice and security requirements for customers’ personal information:

• Opt-in: ISPs are required to obtain affirmative “opt-in” consent from consumers to use and share sensitive information. The rules specify categories of information that are considered sensitive, which include precise geo-location, financial information, health information, children’s information, social security numbers, web browsing history, app usage history and the content of communications.
• Opt-out: ISPs would be allowed to use and share non-sensitive information unless a customer “opts-out.” All other individually identifiable customer information – for example, email address or service tier information – would be considered non-sensitive and the use and sharing of that information would be subject to opt-out consent, consistent with consumer expectations.
• Exceptions to consent requirements: Customer consent is inferred for certain purposes specified in the statute, including the provision of broadband service or billing and collection. For the use of this information, no additional customer consent is required beyond the creation of the customer-ISP relationship.

In addition, the rules include:

• Transparency requirements that require ISPs to provide customers with clear, conspicuous and persistent notice about the information they collect, how it may be used and with whom it may be shared, as well as how customers can change their privacy preferences;
• A requirement that broadband providers engage in reasonable data security practices and guidelines on steps ISPs should consider taking, such as implementing relevant industry best practices, providing appropriate oversight of security practices, implementing robust customer authentication tools, and proper disposal of data consistent with FTC best practices and the Consumer Privacy Bill of Rights.
• Common-sense data breach notification requirements to encourage ISPs to protect the confidentiality of customer data, and to give consumers and law enforcement notice of failures to protect such information.

Stop the Cap! continues the fight for a better deal for Time Warner Cable customers that could soon end up as Charter Communications customers, if the California Public Utilities Commission (CPUC) approves the merger.

While the Federal Communications Commission formally approved the deal last week, California has yet to sign off on the transaction, giving consumer advocates like Stop the Cap! an opportunity to recommend the state regulator impose stronger consumer-friendly deal conditions that guarantee customers their share of the anticipated windfall in “deal benefits” that shareholders and executives of the companies involved are likely to receive.

Our California coordinator Matthew Friedman has been educating the CPUC about the true nature of data caps and usage-based billing, and sharing our view that Charter’s promised merger deal benefits are illusory, offering little more than what Time Warner Cable already offers its Maxx-upgraded service areas. In fact, Time Warner’s ongoing commitment to not impose compulsory data caps or usage billing is likely to be canceled by Charter Communications, which has only agreed not to impose such billing schemes on customers for three years.

Even worse, future Charter customers are likely to pay higher broadband bills after Charter imposes its regular prices on Time Warner Cable customers — prices often higher than what Time Warner charges for similar services. Although Time Warner customers have been able to negotiate a better deal for themselves after threatening to cancel, Stop the Cap! anticipates Charter will not be as generous with those customers in the future.

At the minimum, Stop the Cap! is recommending the CPUC either permanently ban compulsory usage caps and usage billing from Charter, or add a competition test that will allow such billing only where consumers can switch to a competitor that offers comparable unlimited broadband service.

Charter’s broadband “deal”

The loss of [Time Warner’s] commitment [to always offer unlimited broadband options to consumers] could result in the following harms, according to Friedman:

1. New Charter’s commitment to provide low cost broadband will become completely voluntary and unenforceable;
2. increased broadband pricing resulting in decreased demand for broadband;
3. New Charter will be able to circumvent Net Neutrality rules;
4. New Charter will be able to engage in a multitude of anticompetitive behaviours, increasing the cost and reducing the attractiveness of competing video content from edge providers, thus lessening the demand for high-speed broadband access to the Internet, and thus running counter to Section 706(a)’s mandate to promote competition in broadband services;
5. innovation and investment will potentially decrease significantly;
6. network security can be adversely affected; and,
7. Californians, especially low-income Californians, may lose access to education opportunities.

We’re not drinking “New Charter’s” Kool-Aid

“Stop the Cap! (and the Office of Ratepayer Advocates as well) has offered a reasonable option of requiring a competition test to sunset the prohibition on data caps and usage based pricing,” wrote Friedman. “This suggestion is based on Charter’s own expert testimony and [the conditions] must be rewritten per these suggestions if it is to fulfill multiple statutory requirements.”

Stop the Cap! also advocates that Time Warner Cable customers that purchased their own cable modems to avoid Time Warner’s modem fees deserve an ongoing bill credit for providing their own equipment, because Charter builds the cost of its modem into the price of broadband service.

“Charter already bakes the price of the modem rental into the monthly cost of the plan,” Friedman noted. “New Charter [should be required] to offer a discount to customers who bring their own modems. Charter currently allows customers to bring their own modems… they just continue to charge those customers for a Charter modem that the customer never uses.”

Although Charter’s pledge to increase broadband speeds for Time Warner customers seems laudatory, in fact Charter’s proposed service offerings also represent a significant rate increase for broadband customers who don’t need or want 60Mbps service. They won’t have much choice after Charter imposes its own plans and pricing, which are now limited to 60 or 100Mbps options for most customers, at prices starting at $60 a month.

“Clearly these TWC customers are materially much worse off under New Charter than TWC,” Friedman told the CPUC. “Equally clear is that Charter’s ‘Simplified Pricing’ (perhaps more accurately described as ‘Fewer Options and Higher Prices’) is far from a public benefit. This massive price increase will affect literally every stand-alone-broadband TWC customer other than the few who qualify for the School Lunch/Senior Assistance plan. While the low-cost School Lunch/Senior Assistance plan is great for the narrowly targeted group of consumers who manage to qualify, roughly doubling the cost of broadband for every other standalone customer more than offsets the combined value of every other ‘benefit’ that the applicants allege will come from this transfer.”

Stop the Cap! also advocates that the CPUC guarantee Charter customers have a choice about the broadband speeds they need and the amount they have to pay for Internet access.

“New Charter should be required to retain TWC’s pricing and plan structure in perpetuity, for both new and existing TWC customers. TWC customers should retain the ability to switch back and forth between TWC’s cheaper, larger variety of plans,” Friedman wrote. “New Charter should be required to continue TWC’s practice of increasing customer speeds as technology advances with no
accompanying price increase.”

Although Charter’s lobbying efforts promote improved service for Time Warner Cable customers, it is our view that once one examines the full scope and impact of Charter’s proposal, customers will be worse off under Charter than they would be staying with Time Warner Cable.

“TWC stands out in its field for its customer-friendly policies such as providing discounts for those who own their own modems, its public commitment to refuse to impose data caps or
usage based pricing even in the face of pressure from Wall Street to do so, and the creation of its TWC Roku App to allow customers to avoid set-top box rental fees,” argued Friedman. “This transfer, as currently conditioned, creates a net public benefit harm, not a benefit, or even a status quo.”

The Justice Department and FCC Chairman Thomas Wheeler are prepared to accept a massive $55 billion merger between Charter Communications, Time Warner Cable, and Bright House Networks, but at a cost of stringent conditions governing the creation of America’s second largest cable conglomerate.

In a joint agreement with the U.S. Department of Justice and the FCC, Charter executives have agreed to do nothing to harm online video competition or implement usage caps or usage-based billing for at least seven years. Charter will also be forced to broaden its cable service to reach at least two million additional homes, some already served by other providers, setting the stage for potential head-to-head competition between two closely-matched competitors.

The deal will directly affect 19.4 million customers of the three companies, which will eventually combine under the Charter Communications brand name and marketing philosophy — selling customers simplified television, phone, and broadband packages that reduce customer options. Little is expected to change for the rest of 2016, however, with Time Warner Cable and Bright House likely to continue operations under existing packaging and pricing until sometime in 2017. Technicians told Stop the Cap! earlier in April they were told not to acquire new outfits with the Time Warner Cable logo and branding, and the cable company is also making preparations to gradually repaint its massive fleet of vans and service vehicles with the Charter logo.

Wheeler

Most of the concessions seemed to have originated from FCC Chairman Thomas Wheeler, who has been one of the strongest proponents of online video competition, improved broadband, and direct head-to-head competition between cable operators. The Justice Department focused its attention on challenging the cable industry’s almost-united front against online video competition. Under former CEO Glenn Britt’s leadership, Time Warner Cable was considered “the industry leader” in contract language that guaranteed it would share the lowest price negotiated by any other cable, satellite, telephone company or online video provider. Those agreements also often included clauses that restricted programmers from putting streamed programming online for non-subscribers. That explains why cord-cutters frequently run into barriers watching networks online unless they can prove they are already a pay-TV customer.

Under conditions from the Justice Department, those sections of agreements with Charter, Time Warner Cable and Bright House Networks will become invalid and unenforceable. But that doesn’t mean restrictions will disappear overnight. Comcast, Cox, Cablevision, and other cable companies also enforce similar conditions which will be unaffected by the Justice Department decision, at least for now. But the precedent has sent shudders across an industry concerned about protecting its still-profitable cable TV business, under assault from increased programming costs and a greater reluctance by consumers to tolerate annual rate increases.

Gene Kimmelman, chief executive of consumer interest group Public Knowledge, told the Wall Street Journal the conditions were “a clear signal to the content industry and entertainment companies that the enforcement agencies are giving them a green light to grow online video and experiment as a direct competitor to cable, and they will prevent cable from interfering.”

Of greater interest to consumers are the deal conditions proposed by Chairman Wheeler. As Stop the Cap! reported almost a year ago, sources told us the FCC would “get serious” about data caps if companies like Comcast imposed them on customers nationwide. At the moment, Comcast is testing caps affecting just under 15% of their total customer base, already generating thousands of customer complaints with the FCC in response. Although Charter promised three years of cap-free service, Wheeler and his staff obviously felt it was important to send a message that they agree with cap opponents that data caps are more about preventing competition than technical need. By making long term data cap prohibition a core part of a settlement agreement with Charter, Wheeler sends a strong message to Comcast that the FCC isn’t drinking cable industry Kool Aid about the rationale for usage caps and usage billing.

Some consumer groups worry Charter has overextended itself in debt over-acquiring other cable companies.

“New Charter will not be permitted to charge usage-based prices or impose data caps,” Wheeler said in a statement. “Second, New Charter will be prohibited from charging interconnection fees, including to online video providers, which deliver large volumes of internet traffic to broadband customers. Additionally, the Department of Justice’s settlement with Charter both outlaws video programming terms that could harm online video distributors (OVDs) and protects OVDs from retaliation– an outcome fully supported by the order I have circulated today. All three seven-year conditions will help consumers by benefitting OVD competition. The cumulative impact of these conditions will be to provide additional protection for new forms of video programming services offered over the Internet. Thus, we continue our close working relationship with the Department of Justice on this review.”

Wheeler is also intent on proving there is a viable market for cable operators overbuilding into new territories. To prove that point, Wheeler has gotten an agreement that Charter will introduce service to one million new customers where it will intrude on another operator’s service area and directly compete with it. The other provider has to already offer service at 25Mbps or greater. That could mean Charter competing directly with a cable company like Comcast or building service into an area already served by Verizon FiOS, AT&T U-verse, or another provider offering something beyond traditional DSL.

Copps

Another million customers just outside of areas served by the three cable companies may also finally get service, as Charter will be compelled to wire at least another million homes for cable service for the first time.

Despite the conditions, many consumer groups and former public officials remain unhappy the merger won approval.

“Creating broadband monopoly markets raises consumer costs, kills competition, and points a gun at the heart of the news and information that democracy depends upon,” said Michael Copps, a former Democratic commissioner at the FCC and a special adviser to the Common Cause public interest group. “FCC approval of this unnecessary merger would be an abandonment of its public interest responsibilities.”

“There’s nothing about this massive merger that serves the public interest. There’s nothing about it that helps make the market for cable TV and Internet services more affordable and competitive for Americans,” said Craig Aaron, president and CEO of Free Press. “Customers of the newly merged entity will be socked with higher prices as Charter attempts to pay off the nearly $27 billion debt load it took on to finance this deal. The wasted expense of this merger is staggering. For the money Charter spent to make this happen it could have built new competitive broadband options for tens of millions of people. Now these billions of dollars will do little more than line the pockets of Time Warner Cable’s shareholders and executives. CEO Rob Marcus will walk away with a $100 million golden parachute.”

Wheeler’s draft order is likely to receive a final vote in the coming days before the Commission. The only remaining holdout is California’s telecom regulator, which is expected to reach a decision by May 10.

CenturyLink is planning to trial usage caps on its broadband service later this year, not to reduce congestion or to bank the extra money for service upgrades, but to boost revenue and profits.

Stewart Ewing, chief financial officer at CenturyLink, told Wall Street analysts the company was on board with usage caps and usage billing primarily because its biggest competitor (Comcast) is already implementing a similar program in many of its markets. It’s that kind of “competition” many customers say they could do without.

“Regarding the metered data plans; we are considering that for second half of the year,” Ewing told investors on a morning conference call. “We think it is important and our competition is using the metered plans today and we think that exploring those starts and trials later this year is our expectation.”

No details about the test markets or range of usage allowances were made available by Ewing, but CenturyLink is under pressure by Wall Street to improve its revenue after raising prices and tightening credit standards on its customers. The combined impact of rate hikes and a tighter credit qualification policy led CenturyLink to lose 22,000 broadband customers during the last quarter, many who simply stopped paying the bill.

CenturyLink has been under pressure by Wall Street to put usage caps and usage pricing on its broadband service for over a year.

David Barden from Bank of America called data caps “an opportunity” for CenturyLink to rake in more dollars from customers by using misleading pricing to trick customers.

Post

“We have been seeing a lot of the cable companies experimenting with data caps and metering higher-end usage,” Barden told CenturyLink executives on the conference call. “It seems like the FCC is not pushing back on this and it feels like it could be a big opportunity for telcos to, if nothing else, price underneath the cable umbrella and start to raise rates from high-end users.”

In plain English, Barden wants companies like CenturyLink to make customers believe they are getting a better deal from a lower price, at least until customers actually use the service. Then, the rate increases from usage caps and overlimit fees begin.

Glen Post, CEO of CenturyLink, is still committed to believing CenturyLink is in a good position to add broadband customers, despite the forthcoming trials of usage caps and overlimit fees. He defines 40Mbps broadband from CenturyLink as the speed that will “address most of our customers’ actual needs.”

CenturyLink now has 940,000 households connected to its Gigabit Passive Optical Network (GPON), many for its Prism TV service. Another 490,000 businesses also have access to CenturyLink’s GPON network, primarily for broadband. Post claims more than 30% of the company’s service area is now served with broadband speeds of 40Mbps or greater.

In 2016, CenturyLink expects to spend $1.2 billion on upgrades for its broadband network and capacity. In comparison, in 2015 CenturyLink spent $1 billion repurchasing shares of its own stock and another $1 billion on dividend payouts – both to benefit shareholders.

At present, CenturyLink has around a 15% market share in its GPON-enabled markets (the company didn’t say what its market share was where legacy copper wire infrastructure still dominates). Post believes that gives the phone company enormous room to grow, assuming its customers can pass credit checks and do not mind their broadband service data-capped. Like many phone companies looking for the biggest return on investment, Post noted CenturyLink will pay extra attention to wiring Multiple Dwelling Units (MDUs) — apartment buildings, condos, etc. — where the company can bring fiber service at a lower cost than wiring each home and business.