Broadband will be critically impacted by any merger of Comcast and Time Warner Cable in New York. The two companies could not be more different in their philosophies regarding access, pricing, and speeds.

This merger will have an especially profound impact on broadband service in upstate New York, largely left behind out from getting Verizon’s fiber upgrades. New York’s digital economy critically needs modern, fast, and affordable Internet access to succeed. Verizon has not only ceased expansion of its FiOS fiber to the home network in New York, it has virtually capitulated competing for cable customers in non-FiOS areas by agreeing to sell Time Warner Cable service in its wireless stores.[1]  In cities like Rochester, served by Frontier Communications’ DSL, Time Warner Cable is the only provider in town that can consistently deliver broadband speeds in excess of 10Mbps.

Time Warner Cable has never been the fastest Internet provider and had a history of being slower than others to roll out speed increases. But it is also the only cable provider in the country that experimented with usage caps and consumption billing and shelved both after subscribers bitterly complained in market tests in cities including Rochester.[2]

Then CEO Glenn Britt announced the end of the usage cap trial just two weeks after it became public.[3] Britt would later emphasize that he now believed there should always be an unlimited use plan available for Time Warner Cable customers who do not want their Internet use metered.[4] In study after study, the overwhelming majority of customers have shown intense dislike of limitations on their Internet usage, whether from strict usage caps Comcast maintained for several years or usage allowances that, when exceeded, would result in overlimit fees.[5] Just this month, the Government Accounting Office confirmed these findings in a new study that reported near-universal revulsion for usage caps on home wired broadband service:[6]

In only two groups did any participants report experience with wireline UBP [usage-based pricing].

However, in all eight groups, participants expressed strong negative reactions to UBP, including concerns about:

• The importance of the Internet in their lives and the potential effects of data allowances.
• Having to worry about data usage at home, where they are used to having unlimited access.
• Concerns that ISPs would use UBP as a way of increasing the amount they charge for Internet service.

Time Warner Cable has learned an important lesson regarding consumer perception of usage-based billing and usage caps on Internet service. In 2012, the company introduced optional usage caps for customers interested in a discount on their broadband service. Out of 11 million Time Warner Cable broadband customers, only a few thousand have been convinced in enroll such programs.[7]

Despite results like that, Comcast has not learned that lesson and has twice imposed unilateral, compulsory usage limits on their broadband customers, starting with a nationwide hard usage cap of 250GB per month introduced in 2008. Violators risked having their broadband service terminated by Comcast.[8] Today, for some that would be comparable to losing electricity or telephone service. The threat has profound implications in areas where Comcast is the only broadband provider.

Comcast temporarily rescinded its cap in May 2012, but has gradually reintroduced various forms of usage-related billing and caps with market trials in several Comcast service areas[9]:

Nashville, Tennessee: 300 GB per month with $10/50GB overlimit fee;

Tucson, Arizona: Economy Plus through Performance XFINITY Internet tiers: 300 GB. Blast! Internet tier: 350 GB; Extreme 50 customers: 450 GB; Extreme 105: 600 GB. $10 per 50GB overlimit fee;

Huntsville and Mobile, Alabama; Atlanta, Augusta and Savannah, Georgia; Central Kentucky; Maine; Jackson, Mississippi; Knoxville and Memphis, Tennessee and Charleston, South Carolina: 300 GB per month with $10/50GB; XFINITY Internet Economy Plus customers can choose to enroll in the Flexible-Data Option to receive a $5.00 credit on their monthly bill and reduce their data usage plan from 300 GB to 5 GB. If customers choose this option and use more than 5 GB of data in any given month, they will not receive the $5.00 credit and will be charged an additional $1.00 for each gigabyte of data used over the 5 GB included in the Flexible-Data Option;

Fresno, California, Economy Plus customers also have the option of enrolling in the Flexible-Data Option.

Comcast customers in these areas do not have the option of keeping their unlimited-use broadband accounts. Despite the fact Comcast executive vice president David Cohen refers to these as “data thresholds,” they are in fact de facto limits that carry penalty fees when exceeded.[10]

Cohen predicts these usage limits will be imposed on all Comcast customers nationwide within the next five years.[11] Time Warner Cable has committed not to impose compulsory limits on its broadband customers. Verizon has never attempted to place limits on its home broadband customers. Frontier shelved a usage limit plan of 5GB per month attempted in 2008 and currently provides unlimited service.

Comcast CEO Brian Roberts sat for an interview with CNBC in June in which he implied usage growth was impinging on the viability of its broadband business, justifying usage caps. At the end of the interview, Time Warner Cable ran advertising emphasizing it has no usage caps.[12] Both companies have highly profitable broadband services, as do other providers across the country.[13]

As our group has found, usage caps and consumption billing on cable Internet and DSL are little more than a transparent rate increase and anti-competitive maneuver to restrict the growth of the industry’s biggest potential competitor: online video. If a consumer can stream all of their video programming over a broadband account, there is no reason to retain a cable TV package. Comcast’s usage cap provides a built-in deterrent for customers contemplating such a move.

While a Comcast representative offered (without any independent verification) that the average Comcast broadband user consumes fewer than 20GB of data per month, Sandvine released evidence in its Global Internet Phenomena Report 1H2014 study that cord-cutters in the U.S. – at least those whose usage indicates the use of streaming as a primary form of entertainment – now consume about 212GB of data per month (with 153GB of that going toward “real-time entertainment usage”).[14]

That would put many customers perilously close to Comcast’s current market tested usage allowance.

Approving the transfer of franchises from Time Warner Cable to Comcast has the potential of saddling the majority of New York residents with usage caps and/or consumption billing with little or no savings or benefit to the consumer while introducing a major impediment to potential online video competition to help curtail cable television pricing.

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[1]http://www.verizonwireless.com/wcms/page-unavailable.html?e=404&req=/home-services/twc.html

[2]https://www.reuters.com/article/us-timewarnercable/time-warner-cable-shelves-broadband-usage-billing-idUSTRE53F6EQ20090416

[3]http://stopthecap.com/2009/04/16/we-won-time-warner-killing-usage-caps-in-all-markets/

[4]https://newsroom.charter.com/

[5]

[6]

[7]http://stopthecap.com/2014/03/13/time-warner-cable-admits-usage-based-pricing-is-a-big-failure-only-thousands-enrolled/

[8]https://arstechnica.com/uncategorized/2008/08/its-official-comcast-starts-250gb-bandwidth-caps-october-1/

[9] 

[10] 

[11]https://techcrunch.com/2014/05/14/comcast-wants-to-put-data-caps-on-all-customers-within-5-years/

[12]http://stopthecap.com/wp-content/uploads/2014/04/nocaps.png

[13]https://gigaom.com/2014/02/12/comcast-and-time-warner-cable-forget-tv-it-is-all-about-broadband/

[14]http://www.multichannel.com/news/technology/cord-cutters-gobble-down-bits-sandvine-study/374551#sthash.JYFP7o69.dpuf

You have to live in a warmer climate to be on the list of the next eight cities to get Time Warner Cable’s massive Maxx upgrade.

This afternoon, Time Warner announced it would more than triple the broadband speeds of customers in Austin, Charlotte, Dallas, Hawaii, Kansas City, Raleigh, San Antonio and San Diego at no extra charge.

“We are committed to reinventing the TWC service experience market-by-market,” said Time Warner Cable CEO Rob Marcus. “We want our customers to know a new experience is coming that brings them super-fast Internet speeds and a more advanced TV product.”

Most of the cities on the upgrade list either have or are at least facing the threat of fiber-based competition from AT&T or Hawaiian Telcom. With Verizon’s long-suspended FiOS project and Frontier’s ‘DSL or Die’-philosophy, Time Warner Cable has so far avoided spending money on upgrades where its only significant competition comes from DSL. Outside of New York City, Time Warner has yet to announce any upgrades within its northeast division, which dominates cable service in Maine, western Massachusetts, New York, and parts of Ohio.

With both Google and AT&T promising fiber service in Austin, Time Warner wasted no time beginning upgrades in the capital city of Texas, which have already delivered faster Internet speeds across large sections of the city. By the end of this week, more than half of Time Warner’s broadband customers in Austin will have access to free upgraded speeds.

TWC customers in these communities who subscribe to the Standard Internet plan, formerly up to 15Mbps, will now receive up to 50Mbps, and customers who subscribe to the Ultimate plan, formerly up to 100Mbps, will receive up to 300Mbps – more than three times their current speeds, at no extra charge. In non-upgraded areas, Time Warner’s maximum speed remains 50/5Mbps.

When the community of Batavia, Ill., a distant suburb of Chicago, decided they wanted something better than the poor broadband offered by Comcast and what is today AT&T, it decided to hold a public referendum on whether the town should construct and run its own fiber to the home network for the benefit of area residents and businesses. A local community group, Fiber for Our Future, put up $4,325 to promote the initiative back in 2004, if only because the town obviously couldn’t spend tax dollars to advertise or promote the idea itself.

Within weeks of the announced proposal, both Comcast and SBC Communications (which later acquired AT&T) launched an all-out war on the idea of fiber to the home service, mass mailing flyers attacking the proposal to area residents and paying for push polling operations that asked area residents questions like, “should tax money be allowed to provide pornographic movies for residents?” The predictable opposition measured in response to questions like that later appeared in mysterious opinion pieces published in area newspapers submitted by the incumbent companies and their allies.

Comcast spent $89,740 trying to defeat the measure in a community of just 26,000 people. SBC spent $192,324 — almost $3.50 per resident by Comcast and just shy of $7.50 per resident by SBC. Much the same happened in the neighboring communities of St. Charles and Geneva. 

According to Motherboard, the scare tactics worked, cutting support for the fiber network from over 72 percent to its eventual defeat in two separate referendums, leaving most of Batavia with 3Mbps DSL from SBC or an average of 6Mbps from Comcast.

Much of the blizzard of mailers and brochures Comcast and SBC mailed out were part of a coordinated disinformation campaign. Both companies also knew their claims would go largely unchallenged because Fiber for Our Future and other fiber proponents lacked the funding to respond with fact check pieces of their own mailed to residents to expose the distortions.

When it was all over, it was back to business as usual with Comcast and SBC. The latter defended its reputation after complaints soared about its inadequate broadband speeds.

Kirk Brannock, then midwest networking president for SBC, told city council members in the area that “fiber is an unproven technology.”

“What are you going to do with 20Mbps? It’s like having an Indy race car and you don’t have the racetrack to drive it on. We are going to be offering 3Mbps. Most users won’t use that,” he said.

“All the subscribers got these extraordinary fliers. Ghosts, goblins, witches. I mean, this is about a broadband utility. Very scary stuff. This is real. This is comical, but this is very real,” Catharine Rice of the Coalition for Local Internet Choice said of the fliers at an event discussing municipal fiber earlier this year. “They have this amazing picture, and then they lie about what happened. They’re piling in facts that aren’t true.”

In communities that won approval for construction of publicly-owned fiber networks, the battle wasn’t over. Tennessee’s large state cable lobbying group unsuccessfully sued EPB to keep it out of the fiber business. In North Carolina, Time Warner Cable effectively wrote legislation introduced and passed by the Republican-dominated General Assembly that forbade community broadband expansion and made constructing new networks nearly impossible. In Ohio, another cable industry-sponsored piece of legislation destroyed the business plan of Lebanon’s fiber network, forcing the community to eventually sell the network at a loss to Cincinnati Bell.

The larger Comcast grows, the more financial resources it can bring to bare against any would-be competitors. Even in 2004, the company was large enough to force would-be community competitors to steer clear and stay out of its territory.

Assuming Comcast doesn’t take over Time Warner Cable and change priorities, the city of Los Angeles is getting a commitment Time Warner will “be in a position to offer” gigabit broadband speeds to homes and businesses in the city no later than 2016.

“Over the last four years, Time Warner Cable has invested more than $1.5 billion to enhance our infrastructure and services in Los Angeles. This significant investment coupled with new ‘Gigasphere’ technology positions us to be able to introduce gigabit-per-second speeds in 2016,” said Peter Stern, executive vice president and chief strategy, people and corporate development officer at TWC. “Leveraging our existing network allows us to deliver these speeds faster and with less disruption than any other provider.”

The new gigabit broadband service will be deployable with an upgrade to DOCSIS 3.1 technology, which offers cable operators a more efficient way to deliver broadband over current cable system infrastructure.

“We believe the introduction of consumer gigabit speeds in our near future will facilitate even greater innovations among students, entrepreneurs and many industries powering the Los Angeles economy,” said Dinni Jain, chief operating officer at TWC. “Cable was the first to bring broadband Internet to the masses nearly 20 years ago, and thanks to the dynamic nature of our fiber-rich network, we foresee endless new possibilities as we roll-out gigabit speeds to all of Los Angeles.”

The first Gigasphere pilot test will begin sometime next year. But a Comcast takeover could shift priorities away from offering the kinds of broadband speeds Time Warner is providing under its TWC Maxx upgrade program. Time Warner’s Internet speeds in upgraded areas are now substantially faster and cheaper than what Comcast offers in its service areas. Comcast could decide to retire the broadband upgrade program altogether and settle on offering speeds comparable to what it already sells across much of its national footprint.

Comcast is also readying a return to usage caps and overlimit fees, with no options for unlimited service, in several test markets.

But there are some caveats on Time Warner’s side as well.

Time Warner’s careful language suggests the company may be technologically capable of providing gigabit speeds but isn’t absolutely committing to offer those speeds anytime soon. Time Warner will not complete Maxx upgrades in Los Angeles until the end of this year, and the company has made no announcements about further expanding Maxx upgrades to other cities. No pricing details were available.

Phillip “I got whiplash just watching” Dampier

A former policy director at the Federal Trade Commission and antitrust attorney at the U.S. Justice Department has managed an impressive 180 in just a few short months regarding the merger of Time Warner Cable and Comcast.

In February, David Balto told TheDeal the proposed takeover of Time Warner Cable “is a bad deal for consumers.” Today, Mr. Balto’s panoply of guest editorials, media appearances and columns — suddenly in favor of the merger — are turning up in the New York Times, the Orlando Sentinel, Marketplace, WNYC Radio, and elsewhere.

Balto’s arguments are based on “research” which, in toto, appears to have been limited to thumbing through Comcast’s press releases and merger presentation. That was enough:

First, this deal should create benefits for Time Warner customers, who will gain a significantly faster Internet and more advanced television service.

Second, competition is increasing in both the pay-TV and broadband businesses. Ninety-eight percent of viewers have a choice of three or more multichannel services, plus growing options online. Yahoo just announced a new video service, joining Netflix, Amazon and YouTube. In the last five years, cable has lost about seven million customers, satellite has gained nearly two million, and the telecommunications companies have gained six million.

Third, Comcast’s post-merger share of broadband falls closer to 20 percent when including LTE wireless and satellite providers. Over all, 97 percent of households have at least two competing fixed broadband providers — three or more if mobile wireless is included.

We used to wonder why government officials and regulators were so easily fooled by the corporate government relations people sent into their offices armed with press releases, talking points, cupcakes, and empty promises. We understand everyone isn’t a Big Telecom expert, but too often regulators’ reflexive acceptance of whatever companies bring to their table threatens to win them rube-status. We’d like to think Mr. Balto isn’t Comcast’s sucker, and we certainly hope there are no unspoken incentives on the table in return for his recent, very sudden conversion to celebrate all-things Comcast. Maybe he’s simply uninformed.

Balto

Although our regular readers — nearly all consumers and customers — are well-equipped to debunk Mr. Balto’s arguments, for the benefit of visitors, here is our own research.

First, Comcast’s Internet service is not faster than Time Warner Cable. Mr. Balto needs to spend some time away from Comcast’s merger info-pack and do some real research. He’ll find Time Warner Cable embarked on a massive upgrade program called TWC Maxx that is more than tripling broadband speeds for customers at no extra charge. Those speeds are faster than what Comcast offers the average residential customer, and come much cheaper as well. Oh, and TWC has no compulsory usage limits and overlimit penalties. Comcast’s David Cohen predicts every Comcast customer will face both within five years.

Second, that “advanced TV platform” Balto raves about requires a $99 installation fee… for an X1 set-top box. It also means equipment must be attached to every television in the house, because Comcast encrypts everything. At a time when customers want to pay for fewer channels, Comcast wants to shovel even more unwanted programming and boxes at customers. Older Americans who want their Turner Classic Movies have another nasty surprise. They will need to buy Comcast’s super deluxe cable TV package to get that network, at a cost exceeding $80 a month just for television. Ask Time Warner customers what they want, and they’ll tell you they’d prefer old and decrepit over an even higher cable TV bill Comcast has already committed to deliver.

Has competition truly increased? Not in the eyes of most Americans who at best face a duopoly and annual rate hikes well in excess of inflation. Even worse, for most consumers there is only one choice for 21st century High Speed Internet service – the cable company. Mr. Balto conveniently ignores the fact cable’s primary competitor is still DSL which is simply not available at speeds of 30+Mbps for most consumers. In some areas, like suburban Rochester, N.Y., the best the local phone company can deliver some neighborhoods like ours is 3.1Mbps. That isn’t competition. Verizon and AT&T have both stopped expanding DSL. Verizon has ended FiOS expansion and AT&T’s U-verse still maxes out at around 24Mbps for most customers. AT&T’s promised fiber upgrades have proven to be more illusory than reality, available primarily in a handful of multi-dwelling units and new housing developments. In rural areas, both major phone companies are petitioning to do away with landline service and DSL altogether.

Raise your hands if you want Comcast’s “benefits.” In New York, out of 2,300 comments before the PSC, we can’t find a single one clamoring for Comcast’s takeover. The public has spoken.

Cable “competition” in Minneapolis. Charter and Comcast have also teamed up to trade cable territories as part of the Time Warner Cable merger package deal.

Satellite television’s days of providing the cable industry with robust competition have long since peaked. AT&T is seeking to further reduce that competition by purchasing DirecTV, not because it believes in satellite television, but because it wants the benefits of DirecTV’s lucrative volume discounts.

Any antitrust attorney worth his salt should be well aware of what kind of impact volume discounting can have on restraining and discouraging competition. Comcast’s deal for Time Warner will let it acquire programming at a substantial discount (one they have already said won’t be passed on to customers) so significant that any would-be competitors would be in immediate financial peril trying to compete on price.

Frontier Communications learned that lesson when it acquired a handful of Verizon FiOS franchises in Indiana and the Pacific Northwest. After losing Verizon’s volume discounts, Frontier was so alarmed by the wholesale renewal rates it received, it let loose its telemarketing force to convince customers fiber was no good for television and they should instead switch to a satellite provider they partnered with. It’s telling when a company is willing to forfeit revenue in favor of a third party marketing agreement with an outside company.

So what does this mean for a potential start-up looking to get into the business? Since programming is now a commodity, most customers buy on price. The best triple-play deals will go to the biggest national players with volume discounts – all cable operators that have long agreed never to compete directly with each other.

In the Orlando Sentinel, Mr. Balto seemed almost relieved when he concluded Comcast and Time Warner don’t compete head-to-head, somehow easing any antitrust concerns. It is precisely that fact why this deal must never be approved. Comcast has been free to compete anywhere Time Warner provides service, but has never done so. Letting Comcast, which has even worse approval ratings than Time Warner, become the only choice for cable broadband is hardly in the public interest and does nothing for competition. Instead, it only further consolidates the marketplace into a handful of giant companies that can raise prices and cap usage without restraint.

If Mr. Balto truly believes AT&T and Verizon will ride to the rescue with robust wireless broadband competition, his credibility is in peril. Those two companies, among others, are completely incapable of meeting the growing broadband demands (20-50GB) of the home user. With punishing high prices and staggeringly low usage caps, providers are both controlling demand and profiting handsomely from rationing service at the same time. Why change that?

No 3G/4G network under current ordinary traffic loads can honestly deliver a better online experience than DSL, and customers who attempt to replace their home broadband connection in favor of wireless will likely receive a punishing bill for the attempt at the end of the month. The only players who want to count mobile broadband as a serious competitor in the home broadband market are the cable and phone companies desperately looking for a defense against charges they have a broadband monopoly or are part of a comfortable duopoly.

One last point, while Mr. Balto seems impressed that Comcast would continue to voluntarily abide by the Net Neutrality policies he personally opposes, he conveniently omits the fact Comcast was the country’s biggest violator of Net Neutrality when it speed limited peer-to-peer traffic, successfully sued the government over Net Neutrality after it was fined by the FCC for the aforementioned violation, and only agreed to temporarily observe Net Neutrality as part of its colossal merger deal with NBCUniversal. It’s akin to a mugger promising to never commit another crime after being caught red-handed stealing. A commitment like that might be good enough for Mr. Balto, but it isn’t for us.