Phillip “It worked for Qwest so why not community broadband” Dampier

While doing research on another story, I recently uncovered a fascinating legal case that set an important precedent on whether it is right for a community to hold a referendum before authorizing a new telecommunications provider to offer service in a community.

Opponents of community-owned broadband networks routinely claim such services are “undemocratic” because they can exist without the majority support of the community they propose to serve. In 2001, Qwest (now CenturyLink) ran into just such a “majority-rules” provision in Boulder, Colo. that companies like AT&T and Time Warner Cable advocate should be a law everywhere.

A provision in Boulder’s Charter required that voters in a municipal election approve any cable franchise before it was granted by the city. Wishing to avoid the cost of such an election, Qwest sued the City of Boulder and asked for summary judgment to declare the policy unlawful. Chief Judge Lewis Babcock found Qwest’s argument compelling enough to invalidate the city’s mandatory referendum provision.

Qwest argues that the language in [U.S. Federal Law] 47 U.S.C. § 541 regulating franchising authorities is in direct conflict with [Boulder’s] § 108’s mandatory election provision. I agree.

First, the Act provides guidance to, and restrictions on, “franchising authorities.” Section 541’s requirements are directed toward franchising authorities. See 47 U.S.C. § 541(a)(1), (3), (4). Under the statute, a “franchise” is “an initial authorization, or renewal thereof,” issued by a franchising authority to construct or operate a cable system. 47 U.S.C. § 522(9). A “`franchising authority’ means any governmental entity empowered by Federal, State, or local law to grant a franchise.” 47 U.S.C. § 522(10) (emphasis added).

Here, Qwest approached City officials to seek franchise approval. The City granted a revocable permit to Qwest, and agreed to “grant a cable television franchise authorizing [Qwest] to provide cable television service within the City for a term of years” once an affirmative vote by the qualified taxpaying voters occurred. There is no evidence that the City negotiated the franchise in any manner, or put any additional restrictions or caveats on the franchise beyond voter approval. City officials follow the will of the voters with no additional scrutiny or decision-making. Thus, the City has abdicated franchising authority to the City’s voting citizens. These voters cannot, by the plain terms of the statute, be a “governmental entity empowered by Federal, State, or local law to grant a franchise.” 47 U.S.C. § 522(10). Therefore, direct conflict between the federal and local laws exist, as it is impossible for the franchise to be granted by a governmental entity as required by the Act, and simultaneously granted by the voters as required in § 108.

Second, § 541 imposes numerous and specific requirements on franchising authorities. The statute forbids exclusive franchises, see § 541(a)(1); unreasonable refusals to award additional competitive franchises, see id. at (a)(1); requirements that have the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator, see id. at (b)(3)(B); ordering a cable operator or affiliate thereof to discontinue the provision of a telecommunications service, discontinuing the operation of a cable system by reason of the failure of a cable operator to obtain a franchise or franchise renewal, see id. at (b)(3)(C)(i)-(ii); or requiring a cable operator to provide any telecommunications service or facilities as a condition of the initial grant of a franchise. See Id. at (b)(3)(D).

A franchising authority has affirmative requirements as well. It must assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides, see id. at (a)(3); and allow the applicant’s cable system a reasonable period of time to become capable of providing cable service to all households in the franchise area, see id. at (a)(4)(A).

However, by allowing voters unfettered and unreviewed discretion to grant or reject a franchise, § 108 is in conflict with virtually every provision in § 541. Because only WOWC has received a franchise, voters could effectively grant WOWC an exclusive franchise simply by refusing to vote affirmatively for a second operator. See id. at (a)(1). Voters could unreasonably refuse to award an additional competitive franchise, as they could deny a franchise for any reason or for no reason. See id. Qwest correctly argues that § 108 “provides voters with the unfettered and unreviewable discretion either to grant or deny a cable television franchise for any reason, or for no reason at all.”

In brief, the judge found cable franchises are granted or denied at the municipal level by local government, not through referendums. The City of Boulder was effectively abdicating its responsibility under federal law to manage the franchising process itself. There is no provision in federal law that allows citizens to directly vote a cable franchise agreement up or down, although voters can use the ballot box to remove local officials who do not represent the will of the majority.

More importantly, the judge recognized that turning the process over to local citizenry could unintentionally hand an incumbent provider a monopoly just by voting down any would-be competitor. Why would local citizens oppose competition? As we’ve seen in the fight for community broadband, incumbent providers will spend millions to keep would-be competitors out with a variety of scare tactics and propaganda. Providers have suggested community networks are guaranteed financial failures, will result in yards being torn up to install service, might result in local job losses, and will raise taxes whether residents want the service or not.

Judge Babcock also found that laws that could limit effective competition to incumbent cable companies are in direct conflict with the 1992 federal Cable Act:

The legislative history clearly supports the proposition that Congress was focused on fostering competition when passing the 1992 Act. The Senate Report regarding the Act states, “[I]t is clear that there are benefits from competition between two cable systems. Thus, the Committee believes that local franchising authorities should be encouraged to award second franchises.”

[…] Given the clear intent of Congress to employ § 541 as a vehicle for promoting vigorous competition, I conclude that § 108 is in conflict. Section 108 serves only to provide a significant hindrance to the competition that Congress clearly intended to foster. It forces the potential franchiser to spend money, time, advertising, and logistical support on an election. Thus, § 108 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Perhaps the time has come to raise similar challenges in states where legislatures have passed community broadband bans or placed various impediments on providing service. If Qwest can successfully argue that such rules are designed to limit competition, local communities can certainly argue the panoply of anti-competition laws that were written by and for incumbent cable and phone companies deserve the same scrutiny.

Referendums are an inappropriate way to approve the entry of new competitors.

Cable companies, including Time Warner Cable, are offering a mix of threats and financial incentives to keep popular cable programming away from online video competitors.

Bloomberg News today reported the private discussions primarily target upstart streaming video services from companies like Intel, Apple, and Google, which are all proposing multichannel streaming video services that could one day replace the local cable company.

All three would-be competitors have been stymied, some for years, from signing contracts with popular cable networks like HBO, USA, ESPN and Comedy Central. If a viewer wants to watch those networks, they usually have to authenticate themselves as existing cable, satellite, or telco-TV customers to get access to live and recorded programming. The cable industry prefers it that way as a customer retention tool.

Time Warner Cable CEO Glenn Britt admitted to Wall Street analysts attending this week’s Cable Show his company probably insists on contract language that bars programmers from providing content to online video services.

“We may well have ones that have that prohibition,” Britt said at the conference in Washington. “This is not a cookie-cutter kind of business.”

Some cable company contracts are more benign, only requiring programmers to license content on the same terms offered to their online competitors. Britt said some of Time Warner Cable’s contracts fall into this category.

Britt

Britt has repeatedly emphasized Time Warner wants to license content more broadly to allow the company to include it in its TV Everywhere platform, which streams video content to wireless devices. The cable operator adopted a policy in 2009 that sought to deliver content to customers on any device they wish. Restrictive contracts have kept that policy from being fully implemented.

AT&T U-verse says it won’t pay full price for cable programming sold to its online competitors.

“If they’re going to go over-the-top, then that’s a very different conversation and a very different value for our customers,” Jeff Weber, president of content, said last month at an investor conference. “Exclusive versus non-exclusive has materially different value for our customers. And I think we would want that reflected.”

Restrictive contracts are all about protecting the existing pay television ecosystem, according to Charter’s chief financial officer, Chris Winfrey.

“It’s in everybody’s mutual interest that we are protecting the ecosystem in a way that continues to keep the value of that programming that we have and the way it’s delivered to our subscribers today,” Winfrey said added.

Consumer groups say restrictive contracts are the epitome of anticompetitive industry behavior that should be examined by the Justice Department.

“Is it anticompetitive generally? Of course it is, they are keeping programming from their competitors,” said Gigi Sohn from Public Knowledge.

Satellite companies were originally in this same position, unable to carry popular cable networks on reasonable terms at fair prices until the 1992 Cable Act mandated reforms that required non-discriminatory access to cable programming. Online video providers have not yet been able to demand the same terms for their competing services.

Time Warner Cable customers in Kansas City are ground zero for the cable operator’s retransmission consent battles with over-the-air stations that leave cable viewers without a full lineup of local channels.

Just hours after Time Warner customers got back two local stations owned by Hearst Corporation, Meredith Corporation’s KCTV and KSMO are preparing to pull the plug at midnight tonight.

“Please know that we have tried very hard to reach an agreement with Time Warner Cable, so that our viewers would not have to miss any of our stations’ around-the-clock reporting of news, politics, traffic, weather emergencies, public service announcements, and favorite local and national programming,” reads a statement from the two stations. “We are disappointed in the outcome of our negotiations especially since we have successfully reached agreements with every major cable and satellite company that recognizes our fair market value. The fact is that we are only asking Time Warner Cable for pennies a day from your cable bill for our programming.”

They did not elaborate on exactly how many pennies more a day they were asking to receive. Time Warner Cable suggested they wanted a 200% rate hike.

Should negotiations fail, viewers in Kansas City will lose their local CBS and CW affiliates. Time Warner Cable’s recent response to these disputes is to replace missing local stations with out-of-area stations, in this case most likely Nexstar’s WROC-TV in Rochester, N.Y., a CBS affiliate. Time Warner has not bothered to find a fill-in CW station to date.

But Nexstar last week sued Time Warner Cable in U.S. District Court in the northern district of Texas alleging copyright infringement and breach of contract for importing its TV stations without permission. Nexstar wants a temporary restraining order and damages. If the judge hearing the case issues the restraining order, Kansas City will have to do without a CBS station on Time Warner’s lineup until the dispute is settled.

So far this year, there have 69 instances of local stations withholding their signals from either a cable, phone, or satellite operator in disputes over retransmission rights fees.

In a hearing held yesterday in Washington, several senators attacked the disputes that deprive paying subscribers of broadcast stations.

Sen. Jim DeMint (R-S.C.) wants to repeal the 1992 law that allows broadcasters to require pay television operators to get permission and, in an increasing number of cases, payment to carry local broadcast stations.

DeMint argues the law has outlived its usefulness.

But Sen. John Kerry (D-Mass.) and others note the law also enacted several consumer protections and pro-competition policies that stopped programmers from withholding programming from competing pay television providers.

Kerry called demands to repeal the law altogether “radical” and suggested such moves could destroy local broadcasting. Cable operators want the power to negotiate contracts with out-of-area stations to leverage lower retransmission consent fees from broadcasters and provide customers with replacement stations when the two sides can’t or won’t agree to terms.

Broadcasters have suggested that could leave cable viewers with stations from distant cities, depriving viewers of important local news and emergency information.

For now, no action in Washington is anticipated. Broadcasters have leveraged their popularity to demand increasing payments for permission to carry their signals, and cable and other pay television operators, despite protests, usually agree to slightly lower fee increases and pass them right along to paying subscribers in the form of a rate increase.

Yesterday’s hearing, chaired by Sen. Jay Rockefeller (D-WV), discussed changes in television technologies over the past two decades. It focused on examining the effectiveness of the Must-Carry law, a 1992 law currently in place for the cable industry. The Must-Carry law requires a variety of local broadcast stations to be viewed on pay-TV platforms. Today’s Must-Carry rights were enacted by Congress in the 1992 Cable Act, which the Supreme court upheld in 1997. Congress then found that cable systems have an “economic incentive” to alter their local broadcast signals and that, without Must-Carry rules, broadcasters’ viability is jeopardized.

Although Chairman Rockefeller sought to not have the hearing derailed by retransmission consent disputes, a significant portion of the hearing dealt with that specific issue.

Top cable and broadcasting executives, as well as law experts testify. Witnesses include Melinda Witmer from Time Warner Cable; Martin Franks of CBS; the National Association of Broadcasters’ Gordon Smith; Colleen Abdoulah from Wide Open West!; Gordon Smith from the American Cable Association; law professor and former Disney Washington executive Preston Padden; along with Mark Cooper from the Consumer Federation of America. Courtesy: C-SPAN (1 Hour, 41 Minutes)

Residents in greater Philadelphia overpaid Comcast more than $875 million dollars, thanks to the cable company’s alleged anti-competitive practice of building regional cable clusters that scare would-be competitors away.

Those are the primary allegations in a 2003 class action case brought against the country’s largest cable operator — a lawsuit Comcast has appealed, so far unsuccessfully.  A three-judge panel of the 3rd Circuit on Tuesday delivered the latest blow to the cable company, denying Comcast’s efforts to get the case thrown out.

At issue is the cable industry’s practice of acquiring and trading cable systems with each another to create regional “clusters,” — large geographic areas all served by the same cable provider — and what that practice does to cable pricing.  All the rage in the late 1990s and early 2000s, cable clustering largely put an end to multiple cable systems serving individual cities.  In the 1980s and 90s, it was not uncommon to find up to four different cable systems serving different sections of a community.  Philadelphia was no different, served by more than a half-dozen cable operators in the greater metropolitan region and surrounding counties.

In the late 1990s, the Court noted Comcast launched a major shopping spree to consolidate the entire area around one cable provider: Comcast.  The lawsuit claims subscribers have paid the price ever since.

Comcast’s Cable Swaps and Acquisitions

• April 1998: Comcast acquires 27,000 Marcus Cable customers in Harrington, Delaware, which is part of the Philadelphia Designated Market Area (DMA);
• June 1999: Comcast acquires 79,000 Greater Philadelphia Cablevision customers in the city of Philadelphia;
• January 2000: Comcast acquires 1.1 million Lenfest Communications customers in Berks, Bucks, Chester, Delaware, and Montgomery counties in Pennsylvania, and New Castle County in Delaware;
• January 2000: Comcast acquires 212,000 Garden State Cablevision customers in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, and Salem counties in New Jersey, which is part of the Philadelphia DMA;
• December 2000: Comcast acquires 770,000 AT&T Cable customers in Eastern Pennsylvania (Berks and Bucks counties) and New Jersey, in return for trading 700,000 Comcast customers in Chicago with AT&T (Comcast would later win them back by acquiring AT&T Cable itself);
• January 2001: Comcast acquires 464,000 subscribers in Philadelphia and nearby communities in New Jersey in a subscriber trade with Adelphia Communications Corp., wherein Comcast obtained cable systems and approximately 464,000 subscribers located primarily in the Philadelphia area and adjacent New Jersey areas.  In return, Comcast turns over its subscribers in Palm Beach, Florida and Los Angeles, California to Adelphia.
• April 2001: Comcast wins another 595,000 subscribers in the region in a trade with AT&T Cable;
• August 2006: Adelphia implodes and cable companies including Time Warner Cable and Comcast pick over what’s left.  Comcast manages to pick up another 41,000 former Adelphia customers that were originally headed to Time Warner in yet another subscriber swap;
• August 2007: Comcast acquires Patriot Media and its 81,000 New Jersey customers located within the Philadelphia DMA.

When the acquisitions and transfers were complete, Comcast managed to build a major empire in southeastern Pennsylvania.  In 1998, the company had just a 23.9 percent market share in the Philadelphia DMA.  Comcast managed to control 77.8 percent of the market by 2002.  Despite competition from satellite television and one struggling cable competitor — RCN, Comcast still controlled nearly 70 percent of the market as late as 2007.

Who Pays for the Shopping Spree?  Comcast Customers, Say Plaintiffs

Six Comcast customers upset with the relentless rate increases that came with Comcast’s acquisitions joined forces and filed suit against Comcast in 2003.  The plaintiffs charged Comcast with anti-competitive business practices and violations of the Sherman Act for building a monopoly presence in the market that also helped keep competitors at bay.

One plaintiff’s expert was able to calculate what he called “a conservative estimate” of how much Comcast has effectively overcharged customers in Philadelphia by preventing effective competition: $875,576,662.

That figure was hotly disputed in Comcast’s court appeal, but last Tuesday the Court rejected Comcast’s arguments.  In fact, the Court found merit in the formula used to arrive at the amount of overcharging Comcast has allegedly engaged in — in Philadelphia alone.  Comcast’s argument that customers enjoy lower pricing through promotions and other special pricing arrangements fell apart when the Court learned at least 80 percent of Comcast subscribers pay regular “list prices” for service, and the expert who created the ‘wallet damage‘ formula had taken that special pricing into account.

The plaintiffs suggest that had Comcast not engaged in system clustering, one or more of the area’s cable systems might have decided to compete against the other cable systems.  In that scenario, customers might have been able to choose from Comcast, Lenfest Communications, Marcus Cable, and/or Patriot Cable for cable service, resulting in increased price competition.  While there have been instances of traditional cable operators overbuilding into each other’s territories, those instances have been rare — a point Comcast made in an effort to have the case tossed out.  Comcast’s case is that the majority of Americans are served by a single cable provider, but that’s not a problem because the industry faces increasing competition from satellite TV providers and, as of late, large phone companies.

But the Court found the reason for this lack of competition could be, as plaintiffs argue, the successful outcome of the alleged anti-competitive, cable system-clustering strategy.

As an example, a railway monopoly from 100 years ago could claim it isn’t economical for more than one railroad to serve a particular community, but that isn’t a problem because other forms of transportation exist to move goods and people.  That argument would be based on a market reality created by the railway industry, which routinely bought out the competition through withering price wars, cross-subsidized by higher prices in other monopoly markets. The end effect was a shrinking number of competitive markets, increasing profits (and prices), and a strong deterrent for would-be competitors to enter the business.

A similar case has been brought by the plaintiffs struggling with high cable bills.  In their eyes, cable customers paid for the Monopoly game board on which cable properties were traded or sold.  When the shopping spree was complete, higher rates were the result, indefinitely.

The Case of RCN — Programming Denied

Most traditional cable companies do not compete in areas already served by another cable company.  It’s a tradition some liken to a cartel, where companies carve up territories and enjoy the market benefits afforded by a lack of competition.  But this model is also considered standard operating procedure by Wall Street and other private investors, who fear all-0ut price wars cutting revenues and destroying value and profits.  But there are some companies whose entire mission is to challenge this economic model: the cable overbuilders.  The business plan of the cable overbuilder is to challenge the status quo and deliver service where cable TV already exists and do so profitably.

One such overbuilder is RCN Corporation, which delivers competitive cable service in Boston, Washington, D.C., New York City, Chicago, and parts of the Lehigh Valley.  RCN began operations in 1996 in Boston, just before the cable industry’s quest for clusters went into hyper-drive.  Their plans to compete have been challenged by the ever-increasing concentration in the cable-TV marketplace ever since, and the company has had a particularly tough time attracting subscribers in the Philadelphia area.  Much of RCN’s service area these days is limited to multi-dwelling units like high-rise condos and apartments, where wiring costs are lower.

One of the most effective ways to keep customers from switching to a competitor is to develop or maintain exclusive programming rights.  If a Comcast customer discovered his favorite sporting events could only be seen with a Comcast subscription, that could be a deal-breaker for signing up with RCN.  Before the 1992 Cable Act, the cable industry which owned and controlled a number of popular cable networks refused to sell those channels to would-be competitors (or charged unreasonable prices for access).

When this lawsuit was filed in 2003, RCN found itself locked out of Comcast’s SportsNet, just one of several regional sports networks that cable operators withheld from satellite and cable competitors.  That’s because the 1992 Cable Act included a loophole: it applied only to networks distributed on satellite.  Several regional sports channels were not on satellite, so they could, and were, legally withheld from competitors like RCN.  That loophole was finally closed by the FCC last summer.  But for more than a decade, RCN had to convince sports fans to sign up for a competing service that didn’t have one of the most popular sports channels on the lineup.

Satellite competitors DirecTV and DISH Network were in the same boat, and the legal case recognizes the impact: satellite TV competition in Philadelphia has a below-average percentage of the market, when compared to other cities.

Plaintiffs argued RCN never had fair access to programming, leaving them to compete with one hand tied behind their back.  Even worse, they allege Comcast compelled local contractors into non-compete contracts agreeing not to work for any Comcast competitor, and signing customers up to unusually long contract terms with hefty cancellation penalties in RCN service areas.

All of these accusations were deemed credible by the Court, much to the objection of Comcast, which argued RCN was in serious financial distress and would never be a strongly viable competitor in Philadelphia.  Last week’s Court decision found that ironic, accepting that RCN’s present condition could be, as plaintiffs allege, the result of the anti-competitive, unfair business practices Comcast is charged with.

The evidence on the record “demonstrates that Comcast’s alleged clustering conduct indeed could have reduced competition, raised barriers to market entry [by other competitors] … and resulted in higher cable prices to all of its subscribers in the Philadelphia Designated Market Area,” the court ruled.

Comcast: A Competitive Marketplace Begins And Ends Only at Home

One of the most-disputed elements in the case is determining how much, if any, damage was done to consumers in the greater Philadelphia area.  Much of the plaintiffs’ case rests on pricing anomalies found in the Philadelphia region, where customers are alleged to be paying significantly higher prices for cable service and not enjoying a significant amount of competition.  To build that case, lawyers measured cable rates and available competitors in the various counties in and around the city of Philadelphia.

This is also critical for determining the size of the “class” in the class action lawsuit.  The larger the class, the greater risk of significant damages if the court rules against the cable company (or if the case reaches a settlement.)  Plaintiffs claim their case should include all cable television customers who subscribe or subscribed at any time since December 1, 1999, to the present to video programming services (other than solely to basic cable services) from Comcast, or any of its subsidiaries or affiliates in Comcast‘s Philadelphia cluster.

They specifically defined the cluster as “areas covered by Comcast‘s cable franchises, or any of its subsidiaries or affiliates, located in the following counties: Berks, Bucks, Chester, Delaware, Montgomery and Philadelphia, Pennsylvania; Kent and New Castle, Delaware; and Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer and Salem, New Jersey.”

Comcast counters the geographic market is exactly the size of one, single household.  They argue that subscribers can only choose among video providers serving that customer’s specific home, so what cable competition exists in other counties or communities isn’t relevant.

The side effect of such an argument would be the end of a class action case, since the class size would be reduced from a number in the millions to just one, requiring every impacted consumer to file their own case.

The three judge panel was wholly unimpressed with Comcast’s argument, throwing it out and allowing the case to proceed.

Facebook and Twitter have officially signed up for the Net Neutrality battle on the side of consumers demanding a free and open Internet.

Facebook co-founder Mark Zuckerberg and Twitter’s Evan Williams added their signatures to a letter expected to reach Federal Communications Commission Chairman Julius Genachowski this morning. The letter, signed by 24 high profile Internet executives, calls on the FCC to continue efforts to “begin a process to adopt rules that preserve an open Internet.”

Both companies have not been major players in the political debate surrounding Net Neutrality until now.

The correspondence comes after two weeks of sustained attacks on Net Neutrality from several dozen Republicans on Capitol Hill and intense lobbying from telecommunications companies to drop the issue.

One signer, Echostar CEO Charlie Ergen, is no stranger to pro-consumer telecommunications legislation.  Prior to the launch of DISH Network, Ergen sold satellite dish equipment to consumers and was an active participant in the battle to pass the 1992 Cable Act, which mandated fair and open access to cable programming networks making DirecTV and DISH Network possible.  Ergen’s company owns Sling Media, manufacturer of the Slingbox, a device that streams television programming over the Internet for private use.  The Slingbox has been banned from certain wireless mobile networks, a prohibition that would end should Net Neutrality rules take hold.

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