Conditions recommended by Stop the Cap! to protect New York consumers after a merger of Charter Communications and Time Warner Cable are expected to cost the two cable companies almost one billion dollars and will guarantee statewide adoption of Time Warner Cable’s Maxx upgrade, guaranteeing all customers receive speed upgrades ranging from 60-300Mbps.

On Friday, the N.Y. Public Service Commission announced its conditional approval of the merger transaction, but only if Charter agrees to a series of wide-ranging conditions to guarantee that New York customers receive tangible benefits as a result of the merger:

The Commission agrees that in order for the proposed merger to be in the public interest, the Petitioners must agree to make concrete and enforceable commitments to modernize their cable system and services, expand access, address the digital divide and improve customer service. To this end, we find that with the acceptance by the Petitioners of the enforceable conditions, as discussed in the body of this Order and Appendix A, the proposed merger is in the public interest. These conditions are designed to help ensure a near ubiquitous world-class communications network that meets the needs of all New Yorkers. Absent acceptance of these conditions, the public interest standard cannot be met, and the petition for transaction approval is denied.

Stop the Cap! was quoted and footnoted extensively in the PSC order. We provided the PSC with insight beyond the public relations machine of Charter and Time Warner Cable. We exposed the fact Charter’s promised service improvements were actually more modest than what Time Warner Cable has undertaken on its own through its Maxx upgrade program. We educated regulators about the inadequacy of Charter’s initial commitment to offer low-cost Internet access for low-income families. We questioned the consumer benefits of certain upgrades that could actually increase costs for consumers because of additional equipment fees. We alerted the PSC that Charter would discontinue Time Warner’s affordable $14.99 Internet offer. We strongly recommended the PSC consider making rural broadband expansion a part of this transaction. We also sought additional protections from any future compulsory usage caps or usage-based billing.

Although Stop the Cap! was opposed to the transaction from the outset, doubting it was in the public interest, we recognized the chances for approval were greater than the Comcast-TWC merger that was eventually withdrawn. Therefore, we made it a priority to outline multiple conditions we felt should be imposed on Charter if the deal was to be approved.

Our constituency is ordinary consumers and ratepayers. Too often these kinds of mergers are approved with token conditions that only benefit minority or special interests, favored non-profit or government entities, or those with vested business interests (programmers, equipment manufacturers, etc.) It was important to us that any approval bring something beyond free Internet service for schools or community centers, agreements to continue carrying certain cable networks, or a temporary discount or low value coupon that ends up in the mailboxes of customers a year or two from now.

We know what Time Warner Cable customers in New York want: better service, faster speeds, no data caps, no gotcha fees, affordable Internet options, and job protection.

It appears New York regulators understand that as well and intend to force Charter to offer customers a better deal.

Despite publicly saying little about the merger, just a few hours after the PSC’s decision, Gov. Andrew Cuomo’s office issued a press release taking credit for the merger conditions and unveiling the “tenth signature proposal of his 2016 agenda: dramatically expanding and improving access to high-speed Internet in communities statewide.” Once again, the governor will try to entice providers like Time Warner Cable, Frontier Communications, and Verizon to expand rural broadband in New York using public dollars.

Although lacking a catchy title, the “New New York Broadband Program” includes a $500 million solicitation for private sector partners to subsidize rural broadband expansion with state dollars. The key goals of the 2016 program include:

Much of the funding from earlier years ended up going to Time Warner Cable for modest expansion of its cable service, especially in eastern upstate New York. Likely applicants in 2016 include Time Warner Cable, Frontier Communications, community-owned/co-op broadband providers and rural wireless ISPs. Verizon and Cablevision are unlikely to apply.

Despite the governor’s efforts, most New York homes and businesses will be more affected by the Charter-Time Warner Cable merger, if it wins federal approval.

Gov. Cuomo

The Public Service Commission took its role very seriously, issuing a 93-page decision that took recommendations from consumer groups including Stop the Cap! very seriously. It did not share the industry’s belief that telecommunications providers in New York are heavily competitive.

“Time Warner serves close to 50% of New York State and we have a legitimate interest in ensuring that, when a company of this size provides customers with a service so affected by the public interest, as is communications, that real benefits accrue to consumers as a result of a given transaction,” the PSC wrote.

The PSC had an easier time sorting through comments about this merger, which generated considerably less interest than Comcast’s failed attempt to buy Time Warner.

“Generally, comments supporting the proposed transaction assert that, among other things, the merger will create jobs and provide better products at more affordable rates,” the PSC concluded in its ruling. “Those opposing the transaction state that the merger will inevitably lead to higher rates and potential data caps on broadband services in the future.”

The PSC took a very skeptical approach to Charter’s promised benefits, often finding them vague, questionable, or likely to have occurred with or without Charter’s involvement.

For example, the PSC questioned Charter’s promised network investments and upgrades:

Petitioners, however, decline to specify where in the national footprint of Charter, TWC and BHN these investments will be made or to identify the decisional factors to be used to channel these capital resources to specific areas or customers. There is no analysis to indicate that a reasonable proportion of these investments will be to systems in New York or for the benefit of New York customers. Similarly, there is no proposal by the Petitioners to describe the specific commitments that are being made or the specific enforcement mechanisms that would be used in the event the Petitioners’ implementation fell short of their commitments. Further, in order for these investments to be characterized as part of a net public benefit, Staff concludes, and we agree, that Petitioners would have to establish that these investments would not have been made in the absence of the proposed merger.

In the absence of a demonstration that there is “a tangible commitment to make new investments or invest beyond Time Warner’s current capital investment budgets,” it is difficult to characterize these capital expenditures as a certain benefit to New York customers or a satisfaction of the public interest under the New York statutes.

One of Stop the Cap!’s core arguments in our comments to the PSC was that Charter’s upgrade commitments were not particularly meaningful because Time Warner Cable was gradually upgrading its own systems to a level of service superior to what Charter plans to offer. The PSC clearly understood this and our warning that Charter’s commitments lacked specificity:

Public Benefit Assessment Staff and several commenters suggest that the proposed merger, as described in the Joint Petition and Petitioners’ Reply Comments, does not have sufficient net benefits to warrant a finding that the transaction is in the public interest. We concur. Many of the asserted benefits from the proposed transaction are events triggered by actions taken independently from the merger, and others are likely to be undertaken by TWC in any event, should the merger not be approved. Further, many asserted benefits are only described on a national scale and there is no way to determine if the investments or expenditures will occur in New York. Similarly, many of the projected benefits are described in terms that are too indefinite to permit us to assume that the benefits will occur as described to make a meaningful contribution to the transaction’s net benefits.

Time Warner Cable Maxx speed improvements.

As a result, the PSC has looked more closely at Time Warner Cable’s Maxx program to be the benchmark for New York, not Charter’s proposed upgrades. They have adopted our recommendation that every Time Warner Cable customer in New York get the same kind of service upgrade residents in New York City enjoy today.

Another argument made by Stop the Cap! dealt with affordable Internet access. Time Warner Cable’s Everyday Low Price Internet ($14.99/mo for 2Mbps) is not fast, but it is affordable and free of the kind of revenue-protecting pre-conditions usually placed on Internet access for the poor. Time Warner’s plan is available to every customer at any time with no restrictions or contracts. In contrast, Charter’s originally proposed affordable Internet program required participants have school-age children, enroll only in the late summer, not have current cable broadband service (or be willing to forego it for 60 days), and not have any prior balance. As with Comcast, pre-conditions like this limit participation. The PSC agreed and now customers will be able to keep their more affordable Internet plans without jumping through artificial hoops launched by Charter.

The days of rural New Yorkers being quoted $20,000 to install Time Warner Cable service are also going to be a thing of the past. In addition to a commitment to pay for line extensions reaching 145,000 unserved or underserved customers, Charter is now required to work with New York’s Broadband 4 All program to receive supplementary funding, as available, to complete service extensions to eventually reach every customer that lives within a franchise area and wants cable service.

There are several other benefits outlined below that make this a better (although not great) deal, at least for New Yorkers. If any other state regulator manages to get an even better deal for that state’s residents, New Yorkers will automatically benefit because of a “most favored state clause” in the PSC’s order, which requires Charter to share those benefits with New York residents.

All in all, the New York State Public Service Commission has lived up to its reputation as a consumer-protective body that is responsive to the needs of the public. This is in great contrast to many other states where regulators seem themselves as a business facilitator (and occasionally come directly from the businesses being regulated). In these states, the merger won approval with few, in any, preconditions.

We were delighted to have been extensively quoted and footnoted in the PSC’s order, having proven our case the Charter-Time Warner deal didn’t offer very much for New York. But we’re not happy the PSC punted on data caps. While recognizing they are a concern, the PSC seemed satisfied a three-year guarantee of no data caps was adequate. We disagree. As an increasing number of Comcast customers can attest, data caps are anti-competitive, anti-consumer, and unnecessary. Whatever benefits faster speeds can deliver can be easily curtailed by a data cap. So can online video competition. With much of upstate New York totally dependent on a single provider – Time Warner or Charter – for broadband speeds above 10Mbps, there is plenty of room for mischief that would otherwise be controlled by competitive forces. The PSC saw fit to avoid using its power of approval to get creative on keeping flat rate Internet affordable and available. That is a mistake we predict will be back to haunt us in the future.

Here are the specific conditions, most advocated by Stop the Cap!, that Charter Communications must agree to as a condition of the deal’s approval in New York:

Rural Broadband Access [$355 Million Value]

In addition to the goals accomplished by Gov. Cuomo’s New New York Broadband Program, Charter must agree to unilaterally build-out its network to reach an additional 145,000 “unserved” and “underserved” homes and businesses within four years. This will be an easy target for Charter to reach because the PSC defines “underserved” as any home with less than 100Mbps service. That represents much of upstate New York bypassed by TWC Maxx, so a speed upgrade in just one upstate city will achieve this requirement.

However, the PSC also included a second condition. Subject to the final terms and conditions of the Broadband 4 All Program being comparable to the Connect New York Program, Charter will be required to bid for Broadband 4 All Program funding to offer line extensions to any remaining unserved and underserved home across its entire New York service territory, which means every New Yorker within a cable franchise service area that wants service will be able to get it without being quoted tens of thousands of dollars for construction costs.

This will finally help would-be customers like Stop the Cap! reader Jesse Walser in Jamesville who has tried to get wired broadband in his home for over a decade. Verizon won’t upgrade its network and Time Warner Cable quoted him between $5,900 and $26,000 for installation of a line extension to reach his home.

All Digital Cable System Upgrade

Charter must convert their existing New York systems to an all-digital network (including upgrading the Columbia County Charter cable system to enable broadband communications) capable of delivering faster broadband speeds.

In Columbia County, residents are currently better served by smaller local providers. Both Germantown Telephone and Mid-Hudson Cable offer high-speed access throughout their territories. Berkshire Telephone has almost 100% DSL coverage, and Taconic Telephone has expanded DSL service to much of their huge service territory. Frontier Communications offers some DSL in southern Columbia County. The biggest problem providers are Verizon, which has no plans for DSL service in the area, and Charter Cable, which still runs a basic cable television-only system in the county.

In New York, Charter now provides cable television and other communication services to a relatively small number of customers, from two cable system clusters in and around Plattsburgh (14,000 customers) and Columbia County (2,500 customers). Plattsburgh gets television, phone and broadband service from Charter, but Columbia County is still served by a now-ancient, cable television only system.

Network Modernization and Speed Increases [$305 Million Value]

Charter must convert all of its systems in New York to all-digital within 30 months of the closing of the merger transaction. Charter is also required to offer broadband speeds up to 100Mbps to all customers by the end 2018 and match TWC Maxx speeds of 300Mbps by the end of 2019.

Charter’s all digital upgrade in upstate New York will facilitate faster broadband service, but it will also mean a set-top box or other similar device for every cable connected television in the home.

Broadband Affordability [$250 Million Value]

Despite Charter’s simplified menu of options (two broadband speed tiers and one video package), the PSC has required Charter to allow customers to keep their current plans, at least for the next several years:

• Charter is required to maintain and advance its commitment to an affordable standalone Internet offering through the continuation of the Time Warner Everyday Low Price $14.99
  service throughout the Time Warner New York territory for up to two years and allow existing customers to keep the service for three years.
• Charter is required to offer its 60Mbps standalone broadband product throughout New York at uniform national pricing. [$125 million value]
• Charter is required to allow existing Time Warner customers to retain, without material changes that have the intent to discourage, the standalone and bundled broadband services they subscribe to at the close of the transaction for three years from the date of the closing.
• Charter is required to provide a low-income broadband offering to eligible customers throughout its New York footprint. The PSC-ordered plan will offer 30Mbps for $14.99 a month to any household eligible for the National School Lunch Program and senior citizens 65 years and older eligible for the federal Supplemental Security Income program. No credit check shall be required and conditions requiring current broadband customers to wait 60 days to qualify and cover any past due bills have been deleted.

Customer Service [$55 Million Value]

Within two years after the close of the proposed transaction, Charter shall invest a minimum of $50 million in service improvement programs.

Charter is required to show a 35% reduction in Time Warner Cable’s 2014 cable PSC Complaint Rate by the end of 2020, with a 17.5% reduction due by the end of 2018. If they don’t achieve that, Charter must invest an additional $2.5 million in its service for each failure.

Job Protection

For the next four years, Charter cannot cut the number of customer facing jobs in New York.

The three candidates running for President of the Republic of China are: James Soong from the People First Party (PFP) (L), Eric Chu from the ruling Kuomintang (KMT) party (Center), and Tsai Ing-wen from the Democratic Progressive Party (DPP) (R).

Taiwan’s three presidential candidates, appearing in a nationwide debate on Sunday, promised to deliver improved High Speed Internet in the Republic of China, with some candidates committing to give broadband away for free to low and middle-income families.

Taiwan is making broadband expansion and improvement a top national priority, as the country races towards delivering gigabit wired broadband and 5G wireless service. The government wants to boost the country’s broadband ranking, now 33rd in the world.

Bringing speeds up while reducing broadband bills is the goal of Eric Chu, the candidate from the ruling Kuomintang (KMT) party. During his terms as leader of New Taipei and Taoyuan County, Chu presided over a major expansion of Internet penetration rates. Chu believes the next step is to make broadband service free of charge for low/middle-income residents and deliver nationwide free Wi-Fi to every centimeter of Taiwan.

Internet providers would still profit from selling faster access to customers willing to pay for it, but Chu’s policies continue a theme that broadband access is a basic human right, a position increasingly popular in the country. Voters appeared skeptical of Chu’s claims, however, because the KMT has garnered a reputation of being in bed with big business during its last two terms in office. But that has not stopped Chu from criticizing telecom executives for not doing more to invest and eventually offer next generation 5G wireless service in Taiwan.

James Soong, from the People First Party — considered to have a close (but frequently tense) alliance with the KMT  — predictably agreed with Chu, but also wants Taiwan to do more to protect Internet privacy and online safety. Soong wants to completely scrap the country’s legacy copper wire telecommunications infrastructure and replace it with fiber optics, delivering fiber service to every home and business in Taiwan. With a fiber upgrade, Soong is convinced Taiwan will achieve his goal of top-10 broadband status.

Tsai Ing-wen from the Democratic Progressive Party (DPP) said when private companies don’t deliver, it is government’s responsibility to address the digital divide, by making high quality service affordable and fast. Taiwan’s telecom companies are paying close attention to the DPP candidate because polls make her the favorite to become the next president of Taiwan, after the election on Jan. 16.

“The use of broadband Internet service should be part of the people’s basic human rights,” she said. “It is also important to narrow the digital divide to improve educational opportunities for children in remote areas and develop children’s digital capabilities.”

With broadband being treated as a high priority issue in the presidential race, Taiwan’s largest broadband provider, Chunghwa Telecom – 中華電信, has announced the first commercial deployments of G.fast technology – the newest generation of DSL – across Taiwan.

Israeli chipmaker Sckipio demonstrated G.Fast technology at CES 2016 in Las Vegas this week, claiming it is faster than traditional DSL and cable broadband. In a limited demonstration, the company demonstrated download speeds achieving 750Mbps over traditional copper wire networks, about 50 times faster than average broadband speeds. Sckipio promised G.Fast technology will debut in the United States later this year.

If residents in rural Kentucky want Time Warner Cable to offer broadband service, they better be prepared to pay for it.

As Time Warner customers consider the company’s latest rate increases, which now include a $10 modem rental fee and an increasingly common $4.99 “Wi-Fi Fee” if you don’t use your own wireless router, there are other customers signing contracts for residential Internet service from Time Warner at prices as high as $410 a month.

Jack Prindle lives in the Big Bone community near Union, Ky., — close enough to Cincinnati to be a suburb, but rural enough to be bypassed for broadband. Two dozen of his neighbors live along a nine-tenths of a mile stretch of Big Bone Church Road, which isn’t exactly a priority for Time Warner Cable. The families have spent a decade trying to entice anyone to offer broadband Internet access. Insight Communications (Time Warner’s predecessor) and Cincinnati Bell have never shown much interest. Time Warner Cable, however, has been engaged in a type of cat and mouse game, offering service at ever-escalating prices only to change its mind at the last minute.

“Within the last year, I have signed contracts with Time Warner for Internet service starting at $300 a month, with a three-year contract, only to have them come back and raise it to $350 for five years, and then $410 a month with a commitment of five years,” Prindle wrote in the Community Recorder. “Then only to be told a month later they were not going to provide Internet. Others of the 24 have similar bizarre stories concerning Time Warner and Cincinnati Bell.”

“Prindle’s story is an example of what is wrong with rural broadband in the United States,” writes Cynthia Rawley, who shared the story with Stop the Cap! “Unchecked cable and phone companies get federal dollars and the benefit of a fake broadband map that has no relationship to reality, leaving many to believe there is no rural broadband problem to solve. But there is.”

Union, Ky.

Rawley points out the FCC’s official National Broadband Map shows the two dozen homes around Prindle are all provided 5-50Mbps broadband service by both Time Warner Cable and Cincinnati Bell, despite the fact neither offers any broadband service to anyone in the vicinity.

“Boone County Judge-executive Gary Moore wrote to inform the FCC of this error and failed to get a response,” Prindle noted. What bothers him even more is his tax dollars have paid to subsidize rural Internet service he cannot get at any price.

“Some basic research reveals that Time Warner has received millions of taxpayer dollars to provide broadband Internet in rural areas,” Prindle notes. “The commonwealth of Kentucky has given over $100 million to Internet providers alone to provide broadband Internet in rural areas alone. Opensecrets.org reports that Time Warner spent $4,950,000 in lobbying efforts of federal, state, and local governments in 2015. With this amount of money changing hands, the conspiracy theorists among us see a 20/20 episode coming.”

Prindle better have his rabbit ears ready to watch, because at the rate providers are not expanding rural broadband, he will have a long wait before being able to watch that 20/20 episode online.

Apple TV (version 4)

The cable industry is on the cusp of saving billions of dollars annually buying and maintaining set-top boxes and cable modems if they can convince customers to buy their own instead.

Cable companies collectively spend as much as $10 billion a year on customer premise equipment (CPE), ranging from simple Digital Transport Adapters for older analog-only TV sets, to the most advanced cloud-based set-top boxes and DVRs.

Cable industry analyst Craig Moffett believes the cable industry will save a fortune and lose one as consumers buy their own set-top equipment like Apple TV or Roku boxes and buy their own modems to avoid monthly rental charges. That means cable companies will likely forfeit a considerable percentage of their leasing/rental revenue.

“The idea that customers will eventually consume video through their own Apple TV or Roku boxes, or simply connect their cable to their smart TVs, Xboxes and Sony PlayStations, is neither new nor far-fetched,” wrote Moffett. “There are good reasons to believe that CPE spending may come down significantly in future (product) generations.”

Most cable equipment is leased to customers and often installed by a cable operator that covers the costs of sending a truck to the customer’s home. After installation, the average American cable subscriber pays $89.16 a year renting a single cable box, and for those with multiple boxes and a DVR, those costs rise to $231.82 a year. A cable modem can be purchased for $50-90 on average, and usually pays for itself in less than one year of rental charges charged by many cable operators.

Comcast X1

Even with more capable consumer-targeted set tops like the latest Apple TV ($149-199) and Roku devices now approaching $100, it will not take long for consumers to recoup their money avoiding rental fees.

Cable operators like Time Warner Cable now carry the majority of their cable channels on apps accessible through devices like the Roku. Customers will not get the flashiest on-screen experience, but they do get a welcome alphabetical channel lineup and a reasonably good picture. Future generations of the boxes are expected to enhance usability and picture quality.

Cable operators like Charter stand to gain the most. If their merger with Time Warner Cable and Bright House Networks is approved, all three companies are expected to see reductions in equipment expenses estimated at $2.97 billion in 2015 to as little as $917 million by 2019, according to Moffett. Charter is already expecting to see its capital spending fall more than a billion dollars a year, from $6.97 billion to $5.83 billion by 2019, but consumers should not expect to see the savings passed on to them.

Cable operators can also expect considerable savings after fully deploying DOCSIS 3.1 technology that powers their broadband services. The next generation cable broadband platform offers increased efficiency and flexibility that will allow operators to sell faster speeds.

Comcast may stand apart from others believing deluxe set-top boxes like its X1 are urgently needed to keep cable TV customers satisfied. One of Comcast’s largest planned expenses is deploying millions more of these advanced platforms to customer homes in 2016.

Susan Bitter Smith

To say Susan Bitter Smith is beholden to Arizona’s cable industry would be an understatement.

In addition to purportedly representing the citizens of Arizona on regulated utility matters, Bitter Smith is one of the state’s most powerful cable industry lobbyists, earning a salary that consumes 40 percent of the annual budget of the Southwest Cable Communications Association, which represents most cable operators in Arizona, New Mexico, and Nevada.

Despite clear ties to the telecommunications industry Bitter Smith has no intention of ending, in 2012 she ran for the chair of the Arizona Corporation Commission (ACC) — the state body that oversees and regulates phone, cable, and power utilities. Unlike many other states that appoint commissioners, Arizona voters elect them to office. Giving voters a direct election is written into the state constitution, and was designed to limit potential corporate influence and favoritism. Unfortunately for voters, the 2012 election cycle preoccupied by a presidential race and a rare open Senate seat left the mainstream media little time or interest exploring the backgrounds of candidates for the telecom regulator.

Bitter Smith never exactly hid her business relationship with Arizona’s largest cable companies, notably Cox Communications, the cable operator that dominates Phoenix. But she routinely downplayed the obvious conflict of interest, claiming the ACC dealt with regulated utilities, and cable companies were mostly deregulated. The Arizona Republic offered few insights into Bitter Smith’s background, failing to disclose her lobbying connections in their voter recommendations. Instead, the newspaper wrote a single sentence about Bitter Smith’s campaign in its editorial endorsements for the 2012 election: “Bitter Smith enjoys a great reputation as a strong-willed partisan, which seems a difficult fit for the Corporation Commission, at least as compared with the competition.”

Partisanship was exactly what a lot of voters apparently wanted, however, because the vote swung decidedly Republican in large parts of Arizona in the 2012 election. The turnout in Maricopa County, the largest in Arizona, was strongly anti-Obama and voters seemed content voting the party line down the ballot. Incumbents like Democrat Paul Newman did not exactly win an endorsement from the Republic either. The newspaper called him a “fierce and provocative partisan.”

“It is difficult to fathom work getting done at the commission with a microphone anywhere within Newman’s reach,” the newspaper added. The other Democratic incumbent, Susan Kennedy, was dismissed as an on-the-job trainee by the newspaper.

Broadband Issues Overshadowed by Arizona’s Solar Energy Debate

For most in Arizona, the 2012 election at the ACC was much more about energy issues than high cable bills and dreadful broadband. That year, investment in solar energy was the hot topic and it made the election of business-friendly candidates a high priority for the existing power-generating utilities and their friends at the American Legislative Exchange Council (ALEC). Both could claim a major victory if a state ready-made for solar renewable energy turned its back for the sake of incumbent fossil fuel power generators.

Bitter Smith was never a member of ALEC, not having been a state legislator, but many of her fellow Republicans serving on the ACC were, and some were not shy claiming the Obama Administration’s pro-solar energy policies were “reckless and dangerous.” ALEC and utility companies oppose requirements that mandate the purchase of excess power generated from solar and wind customers at market rates and also want to introduce surcharges for customers relying on solar energy. Their fear: if a large percentage of sun-rich Arizonans installed solar panels, revenue for the investor-owned utilities could plummet.

Against that backdrop, Bitter Smith’s close relationship with Cox Cable went unnoticed while the media focused their attention on incumbent Republican commissioner Bob Stump – dubbed by some “Trash Burner Bob” for successfully pushing approval of a permit for a 13 megawatt trash burning plant in West Phoenix. Despite a reputation for pollution, Stump sold trash burning as a better renewable energy source for Arizona than solar energy. Waste hauling companies were delighted. The campaign met with less opposition than some expected, in part because anonymous voting guides turned up conflating solar panels as fire hazards that were difficult to extinguish, exposed users to dangerous chemicals, and constituted a hazard to firefighters whose ‘neurons may be blocked‘ when they approached solar panel fires, allegedly caused by electricity inside the panel.

“Trash Burner Bob” Stump

Newcomer Robert Burns also won his election to the ACC that same year. His time at the Commission has also been rocky. This year, he faces an ethics complaint for remaining a registered lobbyist with the Arizona Telecommunications and Information Council, a group funded by the state’s largest telecom companies. After the complaint was filed, Burns claimed it was all a mistake. He later asked the group’s attorney to send a letter to the Arizona Secretary of State’s office requesting his lobbying connection be removed.

Some critics of the Commission have tolerated Burns’ alleged ethical lapse because he has demonstrated some independence from the energy companies he helps oversee.

Burns has argued the Arizona Public Service Company (APS) – a large investor-owned utility – must disclose how much it spent in campaign contributions and lobbying efforts to get its preferred candidates elected to the Corporation Commission. His demand for disclosure comes at the same time his fellow commissioner Stump is being investigated for exchanging text messages with APS officials during the 2014 election. Critics suggest he may have been illegally coordinating the campaigns of two of his closest allies — Tommy Forese and Doug Little. Both won seats on the ACC that year and have maintained a strong alliance with Stump, much to the chagrin of good government bloggers, who frequently refer to all three collectively as “Tommy Little Stump.”

Steve Muratore, editor of the Arizona Eagletarian, calls all three “shameless,” as they tirelessly fight to stop any investigation that could force open APS’ books to reveal what money, if any, was spent to help get both into office.

Utility giant APS will approach the Arizona Corporation Commission to win a 400% rate hike on special fees for solar panel users.

Forese claims the regulator has no business examining APS’ books.

“Commissioners attempting to influence elections in their official capacity through this relationship [as a result of their constitutional authority] would exceed the bounds of their constitutional mandate over public service corporations,” Forese argues.

While the political soap operas play out, in 2013, APA delivered its first Commission-approved blow against solar power, winning permission to apply a surcharge averaging $5 a month for using solar panels to generate electricity. APC successfully argued solar customers cheat other utility ratepayers by not contributing enough to the utility’s fixed costs.

This year, APC is seeking a 400%+ rate increase, proposing a surcharge averaging $21 a month for using solar panels. Customers served by the Salt River Project in Tempe faced even more onerous charges from that utility — a $50 a month fee for using solar panels. The new fees have effectively stopped residential solar power expansion in that utility’s territory, with the approval of ACC commissioners.

Flying Under the Radar

In the context of these other controversies, Bitter Smith’s own apparent conflicts of interest have largely flown under the radar from 2012 until earlier this year. Federal cable deregulation laws limit the Arizona regulator’s oversight of cable companies like Cox, Cable One, and Comcast. That has given Bitter Smith a defense for serving as both a lobbyist and a regulator. She claims she only lobbies for the cable television and broadband services sold by cable companies like Cox Communications and abstains from consideration of cases such as those involving Cox’s digital phone service, which is still subject to some regulatory scrutiny. Bitter Smith also claims it is easy to tell where the ethical line falls because companies like Cox run different aspects of its business under a variety of affiliated subsidiaries.

Arizona Attorney General Mark Brnovich was not impressed with that explanation and last week filed a Petition for Special Action to remove Bitter Smith from office for violating the state’s conflict of interest statute.

“Arizonans deserve fair and impartial regulators,” said Brnovich. “We filed this case to protect the integrity of the Commission and to restore the faith of Arizona voters in the electoral process. Arizona law clearly prohibits a Commissioner from receiving substantial compensation from companies regulated by the Commission.”

On Sept. 2, the Attorney General’s Office (AGO) launched an investigation into Bitter Smith after receiving a formal complaint against her. The AGO investigation found Bitter Smith receives over $150,000 per year for her trade association work, on top of her $79,500 salary as a Commissioner.  Arizona State Statute 40-101 prohibits Commissioners from being employed by or holding an official relationship to companies regulated by the Commission. The law also prohibits Commissioners from having a financial interest in regulated companies. Section 40-101 promotes ethics in government and prevents conflicts of interest.

“This isn’t one of these instances where this was maybe somebody skating too close to a line, or maybe somebody that had gone into a grey area. I think the law is very clear on this case,” Brnovich said.

KJZZ in Phoenix began raising questions about Bitter Smith’s apparent conflicts of interest last summer and carried this special report on Aug. 24, 2015. (7:18)

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

Bitter Smith’s Shadowy and Scrubbed “PR Firm”

More troubling for Bitter Smith’s case is the “public affairs firm” Technical Solutions, jointly run by Bitter Smith and her husband. A careful scrubbing of the firm’s website “disappeared” the detailed description of the firm’s lobbying services, which counted Bitter Smith’s presence on the Commission a major asset for would-be telecom company clients. Google’s cache resolved that dilemma. Among those taking advantage of Technical Solutions’ services are AT&T, the former wireless company Alltel, and most of the state’s largest cable operators. Bitter Smith also claimed expertise setting up astroturf “grassroots” campaigns advocating her clients’ agendas and interests, but hiding any corporate connection. She also promoted her ability to plant stories with the media for her paying clients.

Scrubbed from the website, but retained by Google’s cache.

Reporters at KJZZ, a public radio station in Phoenix, have spent months following the fine line Bitter Smith has laid as a defense against conflict of interest charges.

Oopsy

Bitter Smith depends on cable and phone companies setting up different entities in name only to manage regulated and unregulated services. That means a cable company could approach the Commission under several different names, one for its phone, one for its television, and one for its broadband business. That distinction allows Bitter Smith to claim she is careful about conflicts of interest:

Bitter Smith said that, because the telecom entities are so separate, it’s OK to vote on telecom matters related to Cox, Suddenlink and other members at the commission. But she still tries not to.

“We thought about that, ‘Well, maybe just from the appearance sake it wouldn’t hurt,’” she said.

Since Bitter Smith took office in 2013, records show the commission has voted at least seven times on matters involving the telephone side of the cable association’s members.

She recused herself four of those times, such as last year when a tariff increase was approved for Cox.

But she didn’t recuse herself on three matters, which she said was accidental, including another tariff increase for Cox approved in 2013.

“Probably should have, just didn’t catch it,” she said.“It was on the consent agenda, I zoomed through.”

She also didn’t recuse herself in May from voting to rescind a $225,000-bond requirement for Mercury Voice & Data, an entity identified in public documents as doing business in Arizona as Suddenlink Communications. She said she missed that one accidentally as well.

“Suddenlink is my member, Mercury Voice & Data is not an entity that I’m familiar with,” Bitter Smith said. “If I had understood, I probably would have, you know, just for optics sake. There’s no legal reason I would need to do that but, had I understood that there was another entity that they now form with a new name, separate entity with a new name, I probably would have.”

[flv]http://www.phillipdampier.com/video/Corporation Commissioner Is Paid Lobbyist For Same Corporations She Regulates 12-3-15.mp4[/flv]

Real News AZ talked with attorney Thomas Ryan about the ethics of serving as a Corporation Commissioner while also employed as a paid lobbyist working for the interests of the companies regulated by that Commission. (7:08)

Ryan

Bitter Smith’s ‘oopsies‘ infuriate government watchdog and Arizona attorney Thomas Ryan, who has tangled with Arizona’s high-powered politicians before… and won.

“This will not go quietly in the night and whoever she retains will no doubt fight it tooth and nail,” Ryan said of Bitter Smith. “But the state of Arizona deserves a Corporation Commission that is not bought and paid for by the very people it’s supposed to regulate, the very industries it’s supposed to regulate.”

Ryan is particularly incensed that Bitter Smith’s apparent ethical lapses are costing Arizonans twice — taxpayers pay her nearly $80,000 salary as a Commissioner and the increasingly expensive cable and phone bills that grow as a result of some of the Commission’s pro-telecom decisions. But at least Bitter Smith is doing well, also collecting her six figure salary from the cable lobbying association she leads.

Pat Quinn, former director of the Residential Utility Consumer Office, or RUCO, which advocates for consumers at the ACC, isn’t moved by Bitter Smith’s fine line and he should know – he’s the former Arizona president of Qwest Communications (today CenturyLink).

Quinn said Bitter Smith’s explanation about the separateness of telecom entities from cable is making a “difference without a distinction.”

“While you may be able to, accounting wise, separate your expenses between what you put in phone and what you put in cable, how do you take out of your mind, ‘Oh, they’re paying me over here and we do good things for them over here, but I’m going to be fair and unbiased when I look at not only Cox on the phone side, but any of the other phone providers,’” Quinn told KJZZ.

How Bitter Smith helped kill rural community broadband in Arizona for the benefit of the state’s biggest cable companies. (6:43)

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Killing Community Broadband to Protect Arizona Cable Profits

The clearest cut evidence of Bitter Smith’s lobbying for Arizona cable companies while claiming to represent the public interest as a commissioner came in 2013, when Bitter Smith and Cox Communications lobbyist Susan Anable tried to pressure Galen Updike, a state employee tasked with mapping broadband availability in Arizona and advocating for solutions for the 80 percent of rural communities in the state that remain broadband-challenged to this day.

In February, Bitter Smith and Anable allegedly solicited the help of state employees to kill a state contract with GovNet, a firm that had previously received $39 million in federal dollars to bring broadband to rural Arizona.

Updike said Bitter Smith trashed GovNet’s reputation, claiming the provider walked away from earlier projects leaving them incomplete.

“‘There was a better alternative,'” Updike recalls Bitter Smith telling him. “‘You’ve got existing cable companies in the area that are having now to compete against these dollars that come in from the federal government. Can you help us get rid of GovNet’s contract?’ [was the request]. It took my breath away.”

Updike said Bitter Smith maintained a near-constant presence at their meetings, but she had no interest in solving Arizona’s rural broadband problems.

“The only reason for Bitter Smith to be there was to talk about telecommunications policy, broadband policy,” Updike said.

Updike’s efforts to make things better for broadband in rural Arizona met constant headwinds from Bitter Smith and lobbyists for the state’s cable and phone companies.

“All the broadband providers were cherry picking — going after the high easy places to put broadband into where there’s high concentration of population dollars,” Updike said. “And basically the low population areas, the rural areas of the state of Arizona, are sucking wind. They have no possibility for it.”

Efforts to develop the Arizona Strategic Broadband Plan were effectively sabotaged by the cable industry, especially Cox. Bitter Smith immediately objected to the contention the cable industry could collectively offer broadband to 96 percent of the state if it chose. She claimed that was invalid. She also criticized the proposal to begin a comprehensive broadband mapping program claiming it lacked proof it would be any real ongoing benefit to anyone.

At the center of the lobbying effort backed by Cox was an argument the state should not involve itself in expanding broadband networks. Instead, it should spend its funds promoting the broadband service already available from cable operators to those not yet signed up.

Things got much worse for Updike as Republicans cemented their grip on the Corporation Commission in 2013. Updike continued to voice concerns about Bitter Smith’s conflicts of interest and was eventually taken aside and told to be quiet about the issue.

“I was told to stop poking the bear. The bear was the combination of Cox, CenturyLink and Susan Bitter Smith,” Updike told the radio station.

By May 2013, the broadband planning council’s meetings began to be mysteriously canceled. No strategic broadband plan was ever adopted. That same month, Updike was told he no longer had a job at the Arizona Department of Administration.

Henry Goldberg, and independent consultant who helped draft the never-adopted state broadband plan has little to fear from Bitter Smith, so he was frank with KJZZ.

“To me when you stop discussions of the plan, disband this council, which is supposed to advise the governor on digital policy, there’s something inappropriate going on there. Something like this is critical for the citizens of Arizona.”