Struck Out

For most of the current baseball season, Los Angeles Dodgers fans who don’t subscribe to Time Warner Cable have been shut out, unable to watch the games shown exclusively on the extremely expensive SportsNet LA cable network, jointly owned by the Dodgers and Time Warner Cable.

Most of Time Warner’s southern California competitors balked at the asking price: about $4 a month per subscriber. Had they agreed to carry the network, subscribers would ultimately pay for it during the next round of rate hikes, whether they watched sports or not.

Time Warner Cable has a 25-year, $8.35 billion dollar contract to manage the network, and observers believe they have struck out.

“They rolled the dice and lost big time,” said Jimmy Schaeffler, head of consulting firm the Carmel Group.

With networks like ESPN commanding whatever they set as an asking price, sports team owners have rushed to get a piece of the lucrative sports network pie. Even individual teams are now demanding their own exclusive networks, hoping to charge top dollar to companies agreeing to carry them.

Angry cable customers watching their bills skyrocket can primarily blame sports programming for much of the endless increases. Around 20 regional and national sports channels now comprise 20% of the wholesale cost of cable television — a high percentage considering the average cable system now carries over 200 channels. While some basic cable networks are lucky to get 10 cents a month per subscriber, regional Fox Sports North demands $4.67 a month from each subscriber, whether they watch the network or not. Smaller independent cable systems usually pay even more.

In southern California, the average cable subscriber pays $20 a month for seven sports channels. There was little interest raising that to more than $24 a month to carry what Dodgers team president Stan Kasten called, “a Dodger-only channel with Dodger-only content 24/7.”

“We’ve been approaching a tipping point in sports programming costs for years and the Los Angeles market has sent a strong message that we’ve reached it,” Andy Albert, senior vice president of content acquisition at Cox Communications, one of the distributors that declined to carry SportsNet LA, told the Wall Street Journal.

The embargo has cost both the Dodgers and Time Warner Cable plenty of advertising and subscription revenue. Ratings are dramatically down from an average of 228,000 viewers when the baseball games were shown on widely carried Prime Ticket, to just 55,000 today on SportsNet LA. Advertising rates have been slashed to compensate for the lack of an audience.

The cost of the dispute between Time Warner Cable and its competitors also included bad public relations, which attracted the attention of regulators at the FCC and area elected officials, who have loudly complained that viewers are increasingly caught in the middle of these disputes.

The pressure worked, and Time Warner Cable announced in mid-September it would broadcast the six final Dodgers games of the season locally for free on KDOC-TV, an independent channel based in Orange County mostly known for airing endless reality shows and reruns of off-network series. On a good day, KDOC attracts at most 18,000 viewers. But the station is doing better today — grabbing an average of 259,000 viewers last week during one Dodgers game — essentially the same audience the Dodgers used to have before SportsNet LA came along. Even better for the station, Time Warner Cable is paying KDOC to carry the games.

KDOC management is now desperately trying to figure out how to keep its new audience after baseball season ends, running promotions for its various shows as often as possible. The station is easy enough to find over-the-air and on every significant cable, satellite, and telco-TV operator. But with more than three dozen high power, low power, and digital sub-channels to choose from across Los Angeles, the Inland Empire, and Orange County, airing stale series and courtroom drama shows may not be enough.

[flv]http://www.phillipdampier.com/video/KDOC Los Angeles New Years Show Eve Show of FAIL 12-31-12[/flv]

Many Los Angeles residents became familiar with KDOC after the station attracted national media coverage for its infamous 2013 New Year’s special hosted by actor and comedian Jamie Kennedy. As viewers watched the slow motion train wreck unfold with D-listers like Shannon Elizabeth, they were treated to endless technical issues, dead air, sudden commercials in the middle of interviews, open mics, unbleeped profanity, a stand-up routine not suitable for children or broadcast television, and special musical guests like rappers Bone Thugs-n-Harmony who dropped F-bombs on live television. Nobody at KDOC thought of pulling the plug, despite violating just about every FCC content regulation. It finally ended with an inebriated Macy Gray hoping to hurry along the festivities and, as the credits rolled, a sudden on-stage fight. Kennedy thanked fast-food chain Carl’s, Jr. for sponsoring the event, which undoubtedly caused extreme discomfort until they could disavow their involvement. An exasperated KDOC engineer assembled this montage of the disaster, which is definitely not suitable to watch at work. (6:23)

(Original image: Musée McCord Museum) — (Re-envisioned by Stop the Cap!)

Bright House Networks customers could face much higher cable television bills and a decline in technology upgrades thanks to a merger deal between two companies that should theoretically have no impact on them.

Bright House Networks has been an odd duck among cable companies since it was created from cobbled-together systems originally owned by Vision Cable, Cable Vision, TelePrompTer, Group W, Paragon and others. In the 1990s and early 2000s, Time Warner effectively ran the cable systems still owned by the Newhouse family. After the AOL-Time Warner merger, Advance/Newhouse decided to take back control of the management and operations of its cable systems, relaunching them under the Bright House Networks brand.

While the Newhouse family continues to assert its ownership and control of Bright House, it is highly dependent on Time Warner Cable to handle cable programming negotiations and broadband technology. That is why Bright House customers were sold “Road Runner” broadband service for many years – a brand familiar to any Time Warner customer. To this day, programming blackouts that affect Time Warner cable TV viewers usually also impact those subscribing to Bright House. Time Warner Cable also retains a minority ownership interest in Bright House.

Although the company is well-known in Indianapolis, Birmingham, suburban Detroit and Bakersfield, its presence is most recognized in central Florida, where it serves customers in Orlando, Daytona Beach, Lakeland, Tampa Bay, and many points in-between.

Despite the fact Bright House serves more than two million customers and is the sixth largest cable company in the country, it is small potatoes to major programmers like Comcast-NBCUniversal, Viacom, Disney, and others. All the best discounts go to satellite television providers and giant cable operators like Comcast and Time Warner Cable. Smaller operators pay substantially more.

That is where the merger between Comcast and Time Warner Cable comes in.

The federal government is likely to count Bright House’s 2.2 million customers as part of the Time Warner Cable family, at least as far as control of cable programming pricing is concerned. Despite Comcast’s voluntary commitment to keep its national share of the cable TV business under 30 percent with the merger of Time Warner, Comcast hasn’t taken seriously counting  the customers of the uninvited cousin – Bright House.

Logistically and legally, Comcast would assume control of Time Warner Cable’s interest in Bright House if the merger is approved by state and federal regulators. That may be too much for regulators to swallow.

Because Bright House is insignificant to Comcast and Time Warner Cable’s marriage plans, Comcast could end up terminating the arrangement, which even Bright House acknowledged would put it “at risk of losing the material benefits such agreements provide, include possibly raising costs for its customers and hampering its ability to compete effectively—a result that would certainly not be in the public interest.”

The Newhouse family has evidently seen the writing on the wall, hiring Wall Street investment bank UBS to advise whether it makes sense to sell. If Bright House does decide to hang out a “for sale” sign, Time Warner Cable has the right to bid first. But by that time, if things go according to plan, it might be Comcast ultimately swallowing up yet another large cable system.

August 6, 2014

Hon. Kathleen H. Burgess
Secretary, Public Service Commission
Three Empire State Plaza
Albany, NY 12223-1350

Dear Ms. Burgess,

The country is watching New York to learn if our state regulators believe a merger between two unpopular cable operators is in the best interest of New York residents.

For the first time in a long time, the Public Service Commission has been empowered to provide much needed oversight over two companies that have enjoyed both deregulation and a near-monopoly across the region, particularly for High Speed Internet service at speeds above 10Mbps.

New Yorkers, like the rest of the country, consistently rank both Comcast and Time Warner Cable as some of the worst companies around.[1] The PSC has the power to facilitate franchise transfers that would effectively combine the two into one giant monolithic cable company dominating the northeastern U.S., or it can reject the proposed assignment of franchises to Comcast, letting both companies know “in the public interest” means something in New York State.

Section 222 of the New York Public Service law[2] provides the PSC with the authority to reject the application for a transfer of a franchise, any transfer of control of a franchise or certificate of confirmation, or of facilities constituting a significant part of any cable television system unless, and I paraphrase, the transfer is in the public interest.

The Commission is on record partly articulating its standard for determining the public interest. In 2013, the Commission stated several principles it considered in the matter of the acquisition of Central Hudson Gas and Electric by Fortis, Inc., to determine if the transaction would provide customers positive net benefits.[3] The Petitioners in that case were held to a standard requiring them to demonstrate the expected intrinsic benefits of the transaction exceeded its detriments and risks.

However, there are considerable differences between energy utilities and the largely deregulated marketplace for multichannel video distributors and broadband providers. While legacy telephone regulations still provide for significant oversight of this vital service, cable operators have won the right to set their own rates, service policies, and broad service areas.

Although many of us believe broadband has become an essential utility service, federal regulators do not, especially after telephone and cable companies have successfully lobbied on the federal level to weaken or eliminate regulation and oversight of television and broadband service with arguments they do business in a fiercely competitive marketplace.[4]

Regulators cannot compel cable operators to provide service in communities where they have chosen not to seek a franchise agreement, and broadband expansion programs in rural, unserved areas have largely only been successful when communities elect to construct their own broadband networks or federal funds (tax dollars and subsidies funded by ratepayers) defray the expense of last-mile networks.  While it is enticing to seek a voluntary agreement from the applicant to expand its rural service area, the public interest benefit to the relatively small number of New Yorkers getting broadband for the first time must be weighed against the interests of millions of existing subscribers in New York who are likely to see further rate increases, usage-limited broadband service, and worse service from Comcast.

New Yorkers will remain captive in most areas to choosing between one telephone and one cable company for packages of phone, television, and Internet access.[5] Promises of competition have never materialized for vast numbers of state residents, particularly those upstate who have been left behind after Verizon ceased its FiOS fiber to the home expansion project.

Unless Comcast was compelled to wire the entire state, any proposal seeking a voluntary agreement to expand Comcast’s service area in New York is likely to be insufficient to solve the pervasive problem of rural broadband availability. It would also saddle millions of New Yorkers with a company unwelcomed by consumers, with no alternative choice.

As you will see in our filing, Comcast has often promised improvements it planned to offer anyway, but held back to offer as a “concession” to regulators.

The result of past deals is one monopolistic cable operator is replaced by another, and as the American Consumer Satisfaction Index reported, bigger is not better for consumers.[6]

The nation’s two largest cable operators, Comcast and Time Warner Cable, now seek further “value creation” for their already very profitable businesses by merging.[7]

News reports indicate further consolidation is likely in the telecommunications marketplace, largely in response to this merger proposal. Soon after Comcast made its announcement, AT&T announced its desire to acquire DirecTV,[8] and Charter Communications’ efforts to bolster its size are likely to be realized acquiring Time Warner Cable customers cast off as part of the Comcast-Time Warner Cable transaction.[9]

How does this benefit New Yorkers? In our attached statement, we go far beyond the testimony offered by Comcast’s representative at the public information meeting we attended in Buffalo. It is vital for any merger review to include a careful analysis of exactly what Comcast is proposing to offer New York. But it is even more important to consider the costs of these improvements. As you will see, many of the promised upgrades come at a steep price – set top box platforms that require a $99 installation fee, the prospect faster broadband speeds will be tempered by broadband usage limits and usage penalties largely unfamiliar to New Yorkers, and other technology upgrades that are accompanied by subscriber inconvenience and added costs.

Comcast’s promised commitments for customers must also be carefully weighed against what it promised shareholders. While Comcast claims it will spend millions to upgrade acquired Time Warner Cable systems (many already being upgraded by Time Warner Cable itself), the merger announcement includes unprecedented bonus and golden parachute packages for the outgoing executives at Time Warner Cable, including a $78 million bonus for Time Warner Cable CEO Rob Marcus, announced less than 60 days after taking the helm.[10] Comcast’s biggest investment of all will be on behalf of its shareholders, who will benefit from an estimated $17 billion share repurchase plan.[11]

The PSC should be aware that previous efforts to mitigate the bad behavior of cable companies have nearly always failed to protect consumers.

Professor John E. Kwoka, Jr., in his study, “Does Merger Control Work? A Retrospective on U.S. Enforcement Actions and Merger Outcomes,[12]” found past attempts at behavioral remedies spectacularly failed to protect against rapacious rate increases after  mergers are approved.[13]

In short, it is our contention that this merger proposal offers few, if any benefits to New York residents and is not in the public interest even if modestly modified by regulators.

The implications of this transaction are enormous and will directly impact the lives of most New Yorkers, particularly for broadband, now deemed by the industry (and consumers) its most important product.[14]

We have attached a more detailed analysis of our objections to this proposal and we urge the New York Public Service Commission to recognize this transaction does not come close to meeting the public interest test and must therefore be rejected.

Yours very truly,

Phillip M. Dampier

—

[1]http://arstechnica.com/business/2014/05/comcast-time-warner-cable-still-have-the-angriest-customers-survey-finds/

[2]http://codes.lp.findlaw.com/nycode/PBS/11/222

[3]http://documents.dps.ny.gov/public/Common/ViewDoc.aspx?DocRefId={A55ECCE9-C3B2-4076-A934-4F65AA7E79D1}

[4]http://www.mi-natoa.org/pdfs/The_Ten_Disappointments_of_Cable.pdf

[5]http://www.newyorker.com/news/daily-comment/we-need-real-competition-not-a-cable-internet-monopoly

[6]http://www.theacsi.org/component/content/article/30-commentary-category/179-acsi-quarterly-commentaries-q1-2008

[7]http://corporate.comcast.com/images/Transaction-Fact-Sheet-2-13-14.pdf

[8]http://www.usatoday.com/story/money/business/2014/05/13/att-directv-deal-analysis/9044491/

[9]http://www.reuters.com/article/2014/04/28/us-charter-communi-comcast-idUSBREA3R0N620140428

[10]http://money.cnn.com/2014/03/21/news/companies/time-warner-cable-golden-parachute/

[11]http://www.cleveland.com/business/index.ssf/2014/02/comcast_agrees_to_purchase_of.html

[12]John E. Kwoka, Jr., “Does Merger Control Work? A Retrospective on U.S. Enforcement Actions and

Merger Outcomes,” 78 Antitrust L.J 619 (2013)

[13]7 John E. Kwoka, Jr. and Diana L. Moss, “Behavioral Merger Remedies: Evaluation and Implications for

Antitrust Enforcement,” at 22, available at

http://antitrustinstitute.org/sites/default/files/AAI_wp_behavioral%20remedies_final.pdf

[14]http://online.wsj.com/news/articles/SB10001424052702303657404576359671078105148

Comcast has offered the Commission a vague preview of how it intends to improve cable television service for New York customers, but rarely discloses important details about the costs and limitations their “improvements” will bring.

While Comcast is excited about the proposition of transitioning Time Warner Cable customers away from the current mixed analog-digital platform to an all-digital lineup, Time Warner Cable customers have paid less and avoided costly, unwanted extra equipment as a result of the choices consciously made by Time Warner Cable.

Comcast and Time Warner Cable have different philosophies about how to best deliver the bulging cable television packages most cable systems now offer:

• Time Warner Cable adopted “Switched Digital Video” from BigBand Networks, a technology that lets Time Warner deliver only the digital signals that are being watched in a service group or node, instead of the entire lineup.[1] Since it is unlikely subscribers are watching every niche channel on offer, Time Warner has been able to reclaim unused bandwidth. As a result, customers using older cable-ready televisions can continue to access analog television channels without the use of a costly, often unwanted set top box.
• Comcast has more aggressively chosen a  path to all-digital television service, moving most of their television channels to encrypted digital technology that requires a Comcast set top box, a less costly Digital Transport Adapter (DTA) designed for secondary-use televisions, or a CableCARD. Customers must choose one of these technologies, usually at an added-cost to access their cable television service.[2]

Time Warner Cable also began deploying DTA equipment in certain areas to free up additional bandwidth on its cable systems while still leaving most analog channels intact. The DTA boxes are supplied free of charge during an introductory phase lasting up to a year, after which a $0.99 monthly charge for each box is imposed.[3] (That fee has recently been raised in certain markets, including New York City, to $1.50/mo.[4] [5])

In contrast, Comcast customers were initially entitled to receive up to three no-cost DTAs to install on televisions not equipped with a Comcast set top box.[6]

On January 1, 2013 Comcast began informing subscribers a new $1.99/month “additional outlet service charge,” now applied for each DTA installed. [7]

Public officials in Eagan, Minn., responding to consumer complaints about the new charge, suspected Comcast was attempting an end run around the Federal Communications Commission’s prohibition of “excessive fees for cable equipment.”[8] The additional outlet fee was deemed by Comcast to be a service fee, not an equipment charge.[9]

Attorney Mike Bradley was hired by a group of suburban Minneapolis cable commissions to investigate the legitimacy of Comcast’s new DTA service charge. If the fee were classified as an equipment charge, Comcast would charge 50 cents per DTA based on rate forms filed with the Minnesota cable commissions he represents, Bradley told The Pioneer Press.[10]

For the average Comcast subscriber, the result was another rate increase in return for digital television service. Subscribers with three DTA’s now pay up to $5.97 extra per month in order to continue to receive the exact same programming on the same number of televisions within their household – a $25 annual surcharge per DTA, $75 if the customer uses three DTA’s, complained Eagan, Minn. Mayor Mike Maguire in a letter to Sen. Amy Klobuchar.[11]

Comcast’s fees, in addition to being well in excess of the actual cost of the equipment, will earn the company at least $550 million annually in new revenue – all for equipment that costs the company around $50 per unit.[12] Because Comcast is encrypting its lineup, even televisions equipped with QAM tuners, capable of receiving digital television signals without a set top box, will also eventually need the new equipment to unscramble television signals.

—

[1]http://www.cedmagazine.com/news/2009/09/time-warner-cable-serves-up-sdv-in-n.y.,-dallas,-l.a.

[2]http://customer.comcast.com/help-and-support/cable-tv/how-bill-will-change-with-digital-migration

[3]http://www.cedmagazine.com/news/2012/01/time-warner-cable-wraps-up-all-digital-conversion-pilot-in-maine

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

[5]http://www.timewarnercable.com/en/residential-home/support/faqs/faqs-tv/basictvencryption/what-will-the-digital-adapter-cost.html

[6] http://www.twincities.com/ci_22617153/comcast-fee-plan-cause-confusion-controversy

[7]http://customer.comcast.com/help-and-support/cable-tv/how-bill-will-change-with-digital-migration

[8]http://transition.fcc.gov/Bureaus/Cable/News_Releases/nrcb4009.txt

[9]http://stopthecap.com/2013/02/21/comcast-calls-1-99-charge-for-digital-adapters-a-service-fee-to-avoid-fcc-complications/

[10]http://www.twincities.com/ci_22617153/comcast-fee-plan-cause-confusion-controversy?IADID=Search-www.twincities.com-www.twincities.com

[11]https://dl.dropboxusercontent.com/u/9008/pioneerpress/yourtechweblog/Eagan%20-%20Sen%20Klobuchar%20ltr%20re%20Cable%20Rate%20Concerns%203-5-13.pdf

[12]http://cisco-news.tmcnet.com/news/2011/04/25/5464600.htm

Since Thomas Rutledge was hired on as CEO at Charter Communications, a steady stream of his former colleagues from Cablevision’s executive suites have followed him to his new employer.

This week, James Nuzzo announced his departure from Cablevision, taking the position of executive vice president for business planning at Charter.

Nuzzo will report to Charter chief operating officer, John Bickham, and will oversee business planning for the company, working with the field operations, customer care, marketing, network operations, technology and product teams.

“Jim’s extensive background and experience in the cable industry makes him the ideal choice to lead Charter’s Business Planning efforts,” said Bickham. “During his time at Cablevision, Jim was instrumental in building a highly effective Business Planning organization and I am confident he will provide Charter the same great leadership.”

Bickham should know as he served as president of cable & communications at Cablevision until Rutledge hired him away to join him at Charter in 2012.

Nuzzo has been with Cablevision since 1986, so his sudden choice to leave, along with other long-time Cablevision executives, continues to fuel speculation Cablevision won’t be around much longer, especially if Comcast successfully wins approval to acquire Time Warner Cable. Of course, Wall Street analysts have made similar predictions for years without anything to show for it.

The Dolan family has controlled Cablevision since its start in 1973. The company used to own cable systems scattered across the country, mostly serving suburban and rural areas outside of its core northeastern service area in the tri-state region of New York, New Jersey, and Connecticut. At its peak in the mid-1990s Cablevision offered service to 2.9 million subscribers in 19 states, but eventually refocused attention on the tri-state, selling its other cable properties further afield.

Today, Charter resembles Cablevision in the 1990s — willing to grow and expand beyond the cable systems it already owns.

Helping them accomplish that includes these former Cablevision executives hired by Charter this spring:

• Jim Blackley, executive vice president of engineering;
• Catherine Bohigian, executive vice president of government affairs;
• Jon Hargis, chief marketing officer;
• Kathleen Mayo, executive vice president of customer operations;
• Gary Schanman, executive vice president;

Rutledge himself used to be Cablevision’s chief operating officer but left for Charter in 2011.