Moffett

Nearly 20 years after the 1996 Telecom Act deregulated much of the cable industry, the renewed threat of increased consumer protection and oversight by the Federal Communications Commission and the dwindling chance regulators will approve the merger of Comcast and Time Warner Cable has increased pessimism about guaranteed high cable industry profits on Wall Street.

Craig Moffett, senior analyst at MoffettNathanson has departed from his usual optimism about the prospects of cable industry stocks and downgraded Comcast, Time Warner Cable and Charter Communications this morning to “neutral,” suggesting the Title II reclassification of broadband could eventually lead to FCC mandated price cuts on broadband after the agency finalizes Net Neutrality regulations.

The cable industry had maintained high hopes for the Republican majority in Congress to trample Net Neutrality and allow the cable industry to continue boosting rates and introducing other pricing schemes including usage-based billing, but Moffett has grown increasingly convinced Republicans cannot override President Obama’s veto power if Congress attempts to change or end FCC oversight over the broadband business.

The cable industry has grown increasingly panicked over a new spirit of activism inside the FCC, particularly after FCC chairman Thomas Wheeler began asserting their “worst-case scenarios” for broadband speed and Net Neutrality. The National Cable and Telecommunications Association has warned Net Neutrality and Title II would stifle innovation. But Moffett fears it will more likely stifle profits.

“It would be naïve to suggest that the implication of Title II, particularly when viewed in the context of the FCC’s repeated findings that the broadband market is non-competitive, doesn’t introduce a real risk of price regulation,” Moffett wrote. “Not tomorrow, of course, so yes, near term numbers won’t change. But terminal growth rate assumptions need to be lowered. Multiples will have to come down.”

Moffett, who had been optimistic about the likely approval of the merger deal between Comcast and Time Warner Cable is much less so today.

His earlier 70-30 odds in favor of the merger are now down to 60-40. The headwind of negative press and the reclassification of broadband to a minimum speed of 25Mbps poses considerable risk the deal will be ruled anti-competitive.

Moffett claims the cable industry was also banking on jacking up prices for Internet access, already a very profitable service, to cover reduced profits from cable television. But now the FCC will be watching.

“In the past, changes to broadband pricing would have been the natural remedy,” Moffett said. “That avenue may be no longer open.”

Welcome to Inn by the Sea, where relaxed coastal luxury comes naturally.

Come for the unpretentious elegance, but don’t stay for the broadband.

Time Warner Cable’s war on competitive broadband in the state of Maine tastes delicious, if you are a lawmaker who enjoys a $26 herb marinated skirt steak with roasted mushrooms, chimichurri, piquillo aioli, and herbed hand cut steak fries in the dining room of the Cape Elizabeth seaside resort Inn by the Sea. Time Warner Cable (and you) picked up the tab, and for those lawmakers too full to drive, the cable company was ready with complimentary rooms at the Inn that retail off-season for $205-355 a night.

Welcome to the 2015 Time Warner Cable Winter Policy Conference, held Jan 22-23 at the remodeled resort and spa where a stay during the summer can cost $500 a day.

Thursday night’s dinner was followed by an all-day information lobbying event Friday — a workday when Maine lawmakers would normally be expected to serve the public interest, but served Time Warner Cable’s instead.

The overall theme of the conference: Defending Time Warner Cable’s performance in Maine and why letting community-owned providers compete with them is a really bad idea.

While lawmakers enjoyed complimentary access to the Inn by Sea’s high-speed Wi-Fi connection, Internet service around the rest of Cape Elizabeth is considerably less sublime, with Angie’s List reporting only 23 percent of the locals consider their broadband provider reliable. Maine itself is ranked 49th out of 50 states for quality of service and availability and no steak dinner will convince honest lawmakers the state is prepared with robust broadband required for the 21st century digital economy. Several members have introduced various measures to aid communities trying to move beyond DSL provided by FairPoint Communications and up to 50Mbps broadband from Time Warner Cable.

The thought of competition is enough to give any cable lobbyist indigestion, especially if the new entrant provides fiber to the home service, something almost unknown among commercial providers in Maine.

Lawmakers caught attending the shindig claimed they attended the “educational forum” to become informed.

But a review of the presenter list suggests this was hardly a 60 Minutes/Edward R. Murrow moment. Lawmakers may not have been aware the presentations were about as balanced as a program length commercial:

• Moderator (Session 1): Jadz Janucik, National Cable & Telecommunication Association – The NCTA is the nation’s largest cable industry lobbying group;
• Dave Thomas, Sheppard Mullin Richter & Hampton LLP: A corporate attorney representing cable companies, particularly when they face competitive threats;
• Lisa Schoenthaler, National Cable & Telecommunication Association;
• Moderator (Session 2): Charlie Williams, Time Warner Cable;
• Charles Davidson and Michael Santorelli from the Advanced Communications Law and Policy Institute at New York Law School. Both have received direct compensation from Time Warner Cable for their  “research” reports and are very active and frequent defenders of Time Warner Cable’s public policy agenda;
• Joe Gillan, Gillan Associates – an economist working under paid contract with the cable industry;
• Moderator (Session 3): Tom Federle, Federle Law: Chief lobbyist for Time Warner Cable in Maine for over seven years;
• Robin Casey, Enockever LLP: Casey is one of the nation’s pre-eminent cable industry lawyers, called by the Texas Cable Association “the authority on the telecom industry;”
• Mary Ellen Fitzgerald, Critical Insights: A Maine pollster hired by Time Warner Cable to carry out the company’s carefully worded survey on broadband issues;
• Moderator (Session 5): Melinda Poore, senior vice president of governmental relations, Time Warner Cable Maine.

“If we want good public policy, there’s reason for all of us to be worried,” utilities expert Gordon Weil, the state’s first Public Advocate, who represented the interests of ratepayers before regulators, told the Maine Center for Public Integrity. Such treatment of legislators is “obviously intended to persuade them by more than the validity of the arguments; it’s intended to persuade by the reception they’re given.”

That sentiment was echoed in a glowing review from a Time Warner colleague given to Tom Federle, the company’s top lobbyist.

“Tom has been the primary lobbyist for Time Warner Cable’s Maine operations for the past seven years,” said Melinda Poole, an executive vice president for governmental relations at Time Warner Cable. “He has a real knack for distilling complex issues for policy makers, has always been able to advance our positions effectively, and consistently has outperformed for us. Tom is well respected by legislators on both sides of the aisle.”

Lawmakers contacted by the Maine Center for Public Integrity seemed to sidestep or downplay the ethical issues of attending the company-sponsored event.

“I think this idea of meals and conversations is how Augusta functions on some level,” said Rep. Mark Dion (D-Portland), who attended the event in Cape Elizabeth, did not stay overnight but was provided dinner and breakfast by Time Warner.

Sen. Andre Cushing (R-Hampden), for whom Time Warner paid the cost of meals and the room, said he thought “about a dozen” legislators attended the Thursday night dinner. Dion said “30 or 35″ attended the second day’s sessions.

Scott Pryzwansky, Time Warner Cable’s director of public relations for the eastern U.S., declined to answer any specific questions but replied by email: “As one of Maine’s leading employers and telecommunications companies, we designed this second biannual educational forum to help policymakers and others better understand some of the complex telecommunications issues confronting Maine and the nation.”

Critics contend such “educational” meetings held at posh locations where company lobbyists hand out free meals and room keys do more to obfuscate than clarify issues for lawmakers, who are likely to remember the accommodations and who provided them more than the seminar.

“I would have said, ‘Fine, if you want to meet with me, come meet on state facilities, no steak dinner,’ said Weil. “If steak dinners didn’t work, they wouldn’t give them steak dinners.”

Time Warner Cable’s two-day event included a packet of handouts, obtained by Stop the Cap!, that illustrate exactly how one-sided the affair was:

• A highly slanted (refuted here) presentation opposing “Government Operated Networks” (or GONs – a favorite acronym used by industry-funded think tanks to oppose municipal broadband) produced by the Advanced Communications Law and Policy Institute;
• an NCTA-produced sheet opposing taxes on Internet access;
• a Time Warner Cable-written summary of recent Maine Public Utility Commission conclusions about the availability of affordable telephone service;
• a guest letter to the editor from Fred Campbell, who has a long history running industry-funded groups that are supposed to advocate for competition, except when an industry friend’s merger deal is on the line;
• and a blog post from the Koch Brothers-funded corporate-friendly Reason.com.

The slanted push-poll part of the presentation was also unsurprisingly predictable.

“Do you approve or disapprove of the current practice of Maine’s government using tax dollars and fees on consumers to subsidize public entities to compete with private businesses?” asked one question.

Another asked if residents would favor “using taxpayer supported debt to build government-owned broadband networks,” ignoring the fact many projects are covered by bonds that carry little or no risk to taxpayers. Some profitable projects could even return money to local communities.

At least one lawmaker was quickly skeptical of the veracity of the company-sponsored poll.

State Rep. Sarah Gideon (D- Freeport) said some of the questions were “leading.”

“Nobody’s going to say ‘Yes, I want my state to incur debt,’” said Gideon. “We see lots of surveys as policymakers and we have to be smart enough to look at what questions are asked.”

Since 2008, Time Warner has donated more than $240,000 to Maine politicians: $127,360 to Democrats and Democratic PACs, and $113,250 to Republicans and Republican PACs. Most of the minor improvements in the state’s broadband rankings since 2013 come from community providers providing a quantum speed leap over traditional DSL and cable broadband services most Maine residents receive.

The National Cable & Telecommunications Association (NCTA), the nation’s largest cable lobbying group, has outdone itself with a brand new fact-challenged video truth-seekers will quickly discover is little more than industry propaganda.

“For nearly 20 years, cable has been building Internet networks that are empowering everyone from innovators and entrepreneurs to kids in the garage,” says the NCTA in its introduction of its new video “The Infinite Internet.” “The Internet propels business, education, entertainment – whatever we want. It’s a platform of possibilities and the fast growing technology in history. Cable is proud of the part we’ve played in advancing America’s future and we’ll continue to make it faster and more accessible.”

Except many NCTA member companies want to introduce usage caps and consumption billing that limit those possibilities on an already absurdly profitable service. The same broadband duopoly of cable and phone companies also holds America’s broadband rankings back, and has demonstrated its real priority is to charge more money for less service.

We’ve reviewed the video and found credibility problems with almost every claim:

Claim: “America’s ISPs have invested trillions of dollars and laid 400,000 miles of fiber optics.”

Our finding: FIB Even industry mouthpieces like the Progressive Policy Institute and NCTA members themselves have a problem with “trillions.” The chief executives of AT&T, Bright House Networks, Cablevision, CenturyLink, Charter, Comcast, Cox, Frontier, Suddenlink, Time Warner Cable, 15 other companies, and industry groups such as the National Cable & Telecommunications Association itself, the Telecommunications Industry Association, and the CTIA Wireless Association claimed in the spring of 2014 that the entire telecommunications industry (not cable alone) spent a combined $1.2 trillion on communications infrastructure. A considerable percentage of that investment was to build out cellular networks, first for mobile phone calls and only later for wireless data. The cable industry spent far less than $1 trillion on its own infrastructure and at the time of its most rapid growth, it was intended primarily to deliver cable television, not broadband.

Stop the Cap! also found the NCTA cheating in its claims of increasing investment in broadband. The trade group was citing cumulative spending, not actual year-to-year spending. A careful review shows broadband investments are generally flat or in decline and are nowhere near comparable to the investments the industry made in the late 1990s.

Although it may be true the cable industry has deployed 400,000 miles of fiber optics, the overwhelming majority of cable customers cannot directly access any of it. Virtually all the cable industry’s fiber is deployed between the company’s headquarters and individual communities where it is connected to the same coaxial cable platform that has been around since the 1960s. Most of the rest is laid for commercial purposes, notably providing backhaul connectivity for cell towers. Time Warner Cable alone deployed fiber to its 10,000th cell tower back in 2013. It’s a lucrative business, earning that cable company more than $61 million a quarter.

BroadbandNow found no cable company appearing on the list of top fiber broadband providers. In fact, as of 2012 only 23% of Americans have access to fiber broadband ranking the United States 14th among western countries in fiber optic penetration according to the OECD.

Claim: “High speed connections reach nearly every home with blazing fast speeds that power our lives.”

Our finding: HIGHLY MISLEADING The NCTA fails to define its terms here. What exactly constitutes a “high-speed connection.” The FCC currently defines broadband as providing speeds of 4Mbps or better. Is that “blazing fast?” The FCC is currently considering redefining broadband to mean speeds of at least 25Mbps, well below many cable company entry-level broadband tiers. The NCTA also likes to claim that 99% of households have access to high-speed Internet, but they include wireless technology at any speed in those figures. If you can get one bar from AT&T’s 3G wireless Internet network, you’ve got high-speed broadband in their eyes.

In fact, when it comes to stingy coverage areas, cable is notoriously not available outside of the biggest cities and suburbs, as the government’s own National Broadband Map depicts:

Map showing cable companies offering at least DOCSIS 3.0 cable broadband service.

Claim: “ISP’s want access for everyone.”

Our finding: TRUE, WITH MISSING FINE PRINT What company would not want to offer its products and services to everyone. The real question is whether they plan on doing that or simply wishing they had. The cable industry has no intention of implementing sweeping changes to the Return On Investment (ROI) formula that determines whether your home gets access to cable or not. Some companies like Time Warner Cable and Frontier Communications are expanding their cable and DSL networks, but only when the government steps in with broadband deployment grant funding.

Assuming service is available, the next hurdle is cost. BBC News reported in 2013 home broadband in the U.S. costs far more than elsewhere. At high speeds, it costs nearly three times as much as in the UK and France, and more than five times as much as in South Korea. Today it costs even more when you count the growing number of providers charging modem rental fees as high as $10 a month and often cap usage or force customers into usage-based billing schemes.

Claim: “With over 300,000 public Wi-Fi hotspots, the Internet of Things is emerging.”

Cox Cable sells their customers on accessing over 300,000 Wi-Fi hotspots, with a prominent asterisk. Access is only available for free if you are a current cable broadband customer.

Our finding: MISLEADING The NCTA is referring to collaboration between Bright House Networks, Cox Communications, Optimum, Time Warner Cable and XFINITY that allow each other’s high-speed Internet customers to use to each company’s Wi-Fi hotspots. They key word is “customers.” The hotspots may be technically reachable by the public, but unless you are a current cable broadband subscriber, using them typically requires the purchase of a daily use pass.

Claim: “Cable will continue to invest, building this platform of possibilities, if we preserve the freedom that created the Internet.”

Our finding: EMPTY CLAIMS The NCTA’s commitment that the cable industry will continue to invest is fulfilled if one cable operator spends just $1 on their network infrastructure. Notice the NCTA does not commit its members to stopping the ongoing decline in broadband investment, much less move to increase it. It also has no explanation for the annual rate increases and new fees and surcharges customers are paying, as the gap between broadband pricing abroad and at home grows even larger. 

“Preserve the freedom” is code language for maintaining the deregulation that the industry has used to its advantage to raise prices in a broadband market most Americans will find is either a monopoly or duopoly. Although the NCTA implies it, the cable industry did not create the Internet. It was a government project (gasp!) initially developed through contracts with the Department of Defense and soon broadened to include educational institutions. The first significant commercial ISPs emerged only in the late 1980s. Cable industry broadband finally showed up around a decade after that. The industry’s claims are akin to boasting Lewis and Clark discovered Kansas City… in 1966.

If the cable industry gets some oversight of its broadband service and enforced protection of Net Neutrality, does that mean investment will flee? First, providers are already spending a lower percentage of capital on broadband expansion in the current deregulatory environment. Second, as broadband becomes the cable industry’s top earner, it provides an endless supply of revenue without the headaches of negotiating programming contracts, dealing with cable television network rate increases, and the growing phenomenon of cord-cutting. In other words, without significant new competition, it remains a license to print money.

[flv]http://www.phillipdampier.com/video/NCTA The Infinite Internet 1-20-15.mp4[/flv]

The NCTA is trying to make hay with its new video, “The Infinite Internet” which purports to share how Big Cable’s vision of the Internet is making new things possible. They don’t mention many of their member companies want to place a usage cap on that innovation, even as they continue to raise prices way out of proportion of the cost of delivering the service. It’s classic cable industry propaganda. (1:08)

Wheeler

The chairman of the Federal Communications Commission has foreshadowed his revised plan for Net Neutrality will include reclassification of broadband as a utility, allowing the agency to better withstand future legal challenges as it increases its oversight of the Internet.

Tom Wheeler’s latest comments came during this week’s consumer electronics show in Las Vegas. Wheeler stressed he supports reclassification of broadband, away from its current definition as an “information service” subject to Section 706 of the Telecom Act of 1996 (all two broadly written paragraphs of it) towards a traditional “telecommunications service.” Under the Communications Act of 1934, that would place broadband under Title II of the FCC’s mandate. Although at least 100 pages long, Title II has stood the test of time and has withstood corporate lawsuits and challenges for decades.

Section 706 relies almost entirely on competition to resolve disputes by allowing the marketplace to solve problems. The 1996 Telecom Act, signed into law by President Bill Clinton, sought to promote competition and end “barriers to infrastructure investment.” Broadly written with few specifics, large telecom companies have successfully argued in court that nothing in Section 706 gives the FCC the right to interfere with the marketing and development of their Internet services, including the hotly disputed issues of usage caps, speed throttling, and the fight against paid fast lanes and Internet traffic toll booths. In fact, the industry has argued increased involvement by the FCC runs contrary to the goals of Section 706 by deterring private investment.

An executive summary of a report published on the industry-funded Internet Innovation Alliance website wastes no time making that connection, stating it in the first paragraph:

Net neutrality has the potential to distort the parameters built into operator business cases in such a way as to increase the expected risk. And because it distorts the operator investment business decision, net neutrality has the potential to significantly discourage infrastructure investment. This is due to the fact that investments in infrastructure are highly sensitive to expected subscriber revenue. Anything that reduces the expectation of such revenue streams can either delay or curtail such investments.

Unfortunately for consumers, even the chairman of the FCC concedes the broadband marketplace isn’t exactly teeming with the kind of competition Section 706 envisioned to keep the marketplace in check. In fact, Wheeler suggested most Americans live with a broadband duopoly, and often a monopoly when buying Internet access at speeds of 25Mbps or greater. Further industry consolidation is already underway, which further deters new competitors from entering the market.

Net Neutrality critics, the broadband industry, and their allies on Capitol Hill have argued that adopting Title II rules for broadband will saddle ISPs with at least one hundred pages of rules originally written to manage the landline telephone monopoly of the 1930s. Title II allows the FCC to force providers to charge “just and reasonable rates” which they believe opens the door to rate regulation. It also broadly requires providers to act “in the public interest” and unambiguously prohibits companies from making “any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.”

Both Comcast and Verizon have challenged the FCC’s authority to regulate Internet services using Section 706, and twice the courts have ruled largely in favor of the cable and phone company. Judges have no problem permitting the FCC to enforce policies that encourage competition, which has allowed the FCC some room to insist that whatever providers choose to charge customers or what they do to manage Internet traffic must be fully disclosed. The court in the Verizon case also suggested the FCC has the authority to oversee the relationship between ISPs and content providers also within a framework of promoting competition.

DC Circuit Court

But when the FCC sought to enforce specific policies governing Internet traffic using Section 706, they lost their case in court.

Although Net Neutrality critics contend the FCC has plenty of authority to enforce Net Neutrality under Section 706, in reality the FCC’s hands are tied as soon as they attempt to implement anti-blocking and anti-traffic discrimination rules.

The court found that the FCC cannot impose new rules under Section 706 that are covered by other provisions of the Communications Act.

So what does that mean, exactly?

Michael Powell, former FCC chairman, is now the chief lobbyist for the National Cable & Telecommunications Association. (Photo courtesy: NCTA)

In 2002, former FCC chairman Michael Powell (who serves today as the cable industry’s chief lobbyist) presided over the agency’s decision to classify broadband not as a telecommunications service but an “information service provider” subject to Title I oversight. Whether he realized it or not, that decision meant broadband providers would be exempt from common carrier obligations as long as they remained subject to Title I rules.

When the FCC sought to write rules requiring ISPs not block, slow or discriminate against certain Internet traffic, the court ruled they overstepped into “common carrier”-style regulations like those that originally prohibited phone companies from blocking phone calls or preventing another phone company from connecting calls to and from AT&T’s network.

If the FCC wanted to enforce rules that mimic “common carrier” regulations, the court ruled the FCC needed to demonstrate it had the regulatory authority or risk further embarrassing defeats in the courtroom. The FCC’s transparency rules requiring ISPs to disclose their rates and network management policies survived Verizon’s court challenge because the court found that policy promoted competition and did not trespass on regulations written under Title II.

The writing on the wall could not be clearer: If you want Net Neutrality to survive inevitable court challenges, you need to reclassify broadband as a telecommunications service under Title II of the Communications Act.

Major ISPs won’t hear of it however and have launched an expensive media blitz claiming that reclassification would subject them to 100 pages of regulations written for the rotary dial era. Broadband, they say, would be regulated like a 1934 landline. Some have suggested the costs of complying with the new regulations would lead to significant rate increases as well. Many Republicans in Congress want the FCC to wait until they can introduce and pass a Net Neutrality policy of their own, one that will likely heavily tilt in favor of providers. Such a bill would likely face a presidential veto.

Suggestions the FCC would voluntarily not impose outdated or irrelevant sections of Title II on the broadband industry didn’t soothe providers or their supporters. Republican FCC commissioners are also cold to the concept of reclassification.

O’Rielly

“Title II includes a host of arcane provisions,” said FCC commissioner Michael O’Rielly in a meeting in May 2014. “The idea that the commission can magically impose or sprinkle just the right amount of Title II on broadband providers is giving the commission more credit than it ever deserves.”

Providers were cautiously optimistic in 2014 they could navigate around strong Net Neutrality enforcement with the help of their lobbyists and suggestions that an industry-regulator compromise was possible. Early indications that a watered-down version of Net Neutrality was on the way came after a trial balloon was floated by Wheeler last year. Under his original concept, paid fast lanes and other network management and traffic manipulation would be allowed if it did not create undue burdens on other Internet traffic.

Net activists loudly protested Wheeler’s vision of Net Neutrality was a sellout. Wheeler’s vision was permanently laid to rest after last November when President Barack Obama suddenly announced his support for strong and unambiguous Net Neutrality protections (and reclassifying broadband as a Title II telecommunications service), No FCC chairman would likely challenge policies directly advocated by the president that nominated him.

Obama spoke, Thomas Wheeler listened. Wheeler’s revised Net Neutrality plan is likely to arrive on the desks of his fellow commissioners no later than Feb. 5, scheduled for a vote on Feb. 26. It’s a safe bet the two Republicans will oppose the proposal and the three Democrats will support it. But chairman Wheeler also listens to Congress and made it clear he doesn’t have a problem deferring to them if they feel it necessary.

“Clearly, we’re going to come out with what I hope will be the gold standard,” Wheeler told the audience in Las Vegas. “If Congress wants to come in and then say, we want to make sure that this approach doesn’t get screwed up by some crazy chairman that comes in, [those are] legitimate issues.”

If that doesn’t work, the industry plans to take care of the Net Neutrality regulation problem itself. Hours after any Net Neutrality policy successfully gets approved, AT&T has promised to challenge it in court.

[flv]http://www.phillipdampier.com/video/Fox Business News Net Neutrality Wheeler 1-8-15.flv[/flv]

Free Press CEO Craig Aaron appeared on Fox Business News to discuss Tom Wheeler’s evolving position on Net Neutrality. (3:54)

Cable One’s history as a former part of the Washington Post and its publishers — the Graham family — will come to an end next year as it is spun off to shareholders, positioned for a quick sale as the march towards consolidation of the cable industry continues.

The board of directors of Graham Holdings authorized company management to spin-off the cable company in a tax-free transaction. Many industry analysts believe that is a prelude to maximizing shareholder value by selling the cable operator to a larger cable operator, most likely Charter Communications.

Cable One serves just under 500,000 customers in rural markets in 19 states. The company struggled in 2014 with high-profile battles over programming costs, notably with Viacom, that has led to channel blackouts running nearly seven months. Cable One’s small footprint has put the cable company at a disadvantage, unable to qualify for deep volume discounts for cable programming. Frequent competitor AT&T U-verse has taken a toll on the cable company’s video subscribers, down 15% since the fall of 2013. Cable One spent much of 2014 investing in network upgrades, particularly to improve its newly prioritized broadband service.

The news boosted shares of Graham Holdings stock, increasing in value as much as 12% to $886.05 per share late last week. Shareholders are positioned to benefit the most from a sale of the company, which could fetch as much as $2.5 billion in a sale. The most likely buyer is Charter Communications, which serves similar-sized communities in the central and southern United States and is ready to grow larger with acquisitions of smaller companies like Cable One.