Should regulators bless the coupling of Comcast and Time Warner Cable, some TWC customers will not be invited to the wedding.

In an effort to appease Washington, Comcast is voluntarily abiding by a 30% market share cap the company itself successfully sued to overturn in federal court. That means Comcast plans to voluntarily shed the three million Time Warner Cable customers that would put the company over its self-imposed limit.

Comcast is so confident its merger will win approval, the company is already contemplating what to do with the orphaned customers. Bloomberg News reports Comcast is considering launching a new publicly traded independent cable company to manage the ex-Time Warner customers. It would automatically be the fourth largest cable company in the country, behind the super-sized Comcast, Cox Communications, and Charter Cable. Comcast would use the new entity to claim it was creating a new “cable competitor” in the industry, despite the fact it would almost certainly never compete in markets where other cable companies already offer service.

Other cable companies are already expressing interest in picking up the stranded TWC customers. Among the suitors:

• Charter Communications, which lost its original bid to take over Time Warner Cable;
• Bright House Networks, which now serves markets in the southern U.S.;
• Suddenlink Communications, which primarily serves rural communities and small cities ignored by larger providers.

Comcast hasn’t announced what cities will not be included in the Comcast-TWC merger, and does not plan to decide until at least late spring. Financial strategists are recommending Comcast “spinout” the subscribers to a new entity that would be loaded up with debt to win significant tax savings from the transaction. The new cable company would likely be worth at least $17 billion.

[flv]http://www.phillipdampier.com/video/Bloomberg Comcast Might Spin Off TWC Subs 2-28-14.flv[/flv]

Bloomberg News reports Comcast would be in the enviable position of creating its own “competitor” by spinning off certain Time Warner Cable customers into a new company Comcast would launch. (2:45)

Bright House Networks’ long standing relationship with Time Warner Cable — which negotiated programming deals on behalf of the smaller cable operator with operations in the south — may come to an end with an approval of a merger between Comcast and Time Warner. That could make Bright House a prime candidate for a takeover.

Charter Communications is likely to seek consolation prizes now that Comcast has outbid the smaller cable company for Time Warner Cable. Liberty Media’s John Malone and Charter’s CEO Tom Rutledge are meeting with advisers and board members to discuss where Charter will go next to grow its operations.

Malone and Rutledge believe the cable industry must consolidate to better position it against competition from online video, phone companies, and satellite television. Malone would like to see the United States served by just a few cable operators, and feels acquisitions are the best way to accomplish his vision.

Charter is almost certain to buy at least some of the three million Time Warner Cable customers Comcast intends to cast-off if it wins regulator approval of its buyout deal. But Team Charter has assembled enough financing to go much farther than that.

Among the most likely targets, according to CRT Capital Group and Raymond James Financial are family held Cox Communications, the third largest cable operator in the country with more than four million customers, Bright House Networks, the tenth largest operator with just over two million customers, and Suddenlink Communications and its 1.4 million subscribers.

Cox, like Cablevision, has been closely controlled by its founding family for years, so rumors of sales of one or both have never come to fruition. But with the merger announcement of Comcast and Time Warner Cable, Wall Street pressure to consolidate is growing by the day. There is talk that if Comcast succeeds in its buyout effort, even satellite providers like DirecTV and DISH are likely to seek a merger. Even Cablevision, which serves suburban New York City may finally feel enough pressure to sell.

A Cox spokesperson this week continued to insist the company is not for sale, but money often has a way of changing minds, if there is enough of it on the table.

Other small regional operators also likely to be approached about selling include: MidContinent, Mediacom, and Cable ONE.

Few were surprised more by the sudden announcement that Comcast was seeking to acquire Time Warner Cable all by itself than the negotiating team from Charter Communications.

Working for weeks to settle how Comcast and Charter would divide the second largest cable company in the country between them, they learned about the sudden deal with Comcast the same way the rest of the country heard about it — over Comcast-owned CNBC.

After Charter endured weeks of rejection from Time Warner Cable executives over what they called “a lowball offer,” Comcast had entered the fray to help Charter boost its offer and bring more cash to the table to change Time Warner Cable’s mind. In return, Comcast expected to acquire Time Warner’s east coast cable systems and much more.

That is where the trouble began.

According to Bloomberg News, the talks broke down because Charter wanted to hold onto as many Time Warner Cable assets as possible. Comcast chief financial officer Michael Angelakis expected Charter to divest more than just the New England, New York, and North Carolina Time Warner Cable systems. Angelakis also wanted control of Time Warner’s valuable regional sports networks in Los Angeles. When he didn’t get them, he stormed out of a meeting threatening to do a deal for Time Warner Cable without involving Charter at all.

The Wall Street Journal confirms the account, adding that both Comcast CEO Brian Roberts and Angelakis agreed the talks with Charter seemed to be going nowhere.

Roberts

Roberts called a secret meeting with top Comcast executives including Angelakis, Comcast Cable head Neil Smit, Comcast’s lobbying heavyweight David Cohen, and NBCUniversal CEO Steven Burke. Roberts asked each about the options on the table and their conclusion was to buy Time Warner Cable by themselves and cut Charter out of the deal.

Within days, Comcast CEO Brian Roberts reinitiated talks with Time Warner Cable CEO Robert Marcus. The two companies had talked off and on ever since Charter Communications set its sights on acquiring Time Warner Cable. It was clear from the beginning Marcus and his predecessor Glenn Britt were cool to Charter’s overtures. Not only was Charter a much smaller operation, it also had a checkered past including a recent bankruptcy that wiped out shareholder value and was loaded with debt again.

The alliance between Charter and Liberty Global’s John Malone was also unsettling. Those in the cable industry had watched how ruthless Malone could be back in the 1990s when a then much-smaller Comcast secretly attempted to acquire control of Tele-Communications, Inc. (TCI) — then the nation’s largest cable operator run by Malone. Malone was furious when he learned about the effort and went all out to kill the deal, acquiring the stake Comcast sought himself.

Malone’s cable empire would eventually fall with the sale of TCI to AT&T just a few years later. When AT&T decided it didn’t to stay in the cable business, it sold TCI’s old territories to Comcast, making it the largest cable operator in the country.

Malone

Malone’s brash attitude has also occasionally rubbed the cable industry’s kingpins the wrong way, especially in his public comments. Last year, Malone criticized Roberts’ more conservative operating style, which means Comcast pays a higher tax rate. Malone specializes in deals that leave his acquisitions with enormous debt loads, manipulating the tax code to stiff the Internal Revenue Service. In June, Malone was back again criticizing the lack of a unified national cable cartel better positioned to defeat the competition.

Under his leadership at TCI, many cable programmers didn’t get on TCI’s cable dial unless they sold part-ownership to TCI. Competitors were dispatched ruthlessly — home satellite dish service, then the most viable competitor, strained under TCI-led efforts to enforce channel encryption.

TCI-owned networks routinely required satellite subscribers to sign up with the nearest TCI cable system, which often billed them at prices higher than what cable subscribers paid. Subscribers had to buy not one, but eventually two decoder modules for several hundred dollars apiece before they could even purchase programming. The cable industry also worked behind the scenes to promote and defend enhanced zoning laws that made installing satellite dishes difficult if not impossible, and denied access to some programming at any price, unless it was delivered by a cable system.

Malone called today’s divided industry “Snow White and the Seven Dwarfs” and insisted on a new major consolidation wave to enhance “value creation” and deliver some major blows to satellite and telephone company competitors.

Despite Liberty Global’s ongoing consolidation wave of European cable systems, his lack of financial resources to put his money where his mouth was left Time Warner Cable executives cold.

Already loaded with debt, Malone’s part ownership stake in Charter could not make up for Charter’s current status — a medium-sized cable operator with dismal customer ratings primarily serving smaller communities bypassed by larger operators.

A deal with Charter would mean Time Warner Cable’s bonds would be downgraded to junk status.

Moody’s Investor Service warned Charter’s offer to acquire Time Warner Cable was primarily financed with the equivalent of a credit card, and would leave the combined entity with $60 billion in debt with bonds promptly downgraded to junk level. Time Warner Cable had always considered its bonds “investment grade.”

Charter’s first clue something was wrong came when Comcast stopped returning e-mail and phone calls. That’s always cause for alarm, but Charter officials had no idea Comcast was secretly negotiating with Time Warner Cable one-on-one. In fact, Comcast’s Roberts was negotiating with Time Warner Cable over a cell phone while attending the Sochi Olympics.

Malone finally got the word the deal was off just a short while before Comcast and Time Warner Cable leaked the story to CNBC.

Ironically, it was Malone who convinced Comcast to seek out a deal with Time Warner Cable. Comcast’s thinking had originally been it had grown large enough as a cable operator and sought out expansion in the content world, acquiring NBCUniversal. But Malone warned online video competitors like Netflix would begin to give customers a reason to cut cable’s cord or at the very least take their business to AT&T or Verizon’s competing platforms.

Comcast executives were convinced that gaining more control over content and distribution was critical to protect profits. Only with the vast scale of a supersized Comcast could the cable company demand lower prices and more control over programming. By dominating broadband, critics of the deal warn Comcast can also keep subscribers from defecting while charging higher prices for Internet access and imposing usage limits that can drive future revenue even higher.

Just like the “good old days” where customers had to do business with the cable company at their asking price or go without, a upsized Comcast will dominate over satellite television, which cannot offer broadband or phone service, as well as the two largest phone companies — AT&T, which so far cannot compete with Comcast’s broadband speed and Verizon, which has pulled the plug on further expansion of FiOS to divert investment into its highly profitable wireless division. If Comcast controls your Internet connection, it can also control what competitors can effectively offer customers. Even if Comcast agrees to voluntarily subscribe to Open Internet principles like Net Neutrality, its usage cap can go a long way to protect it from online video competitors who rely on cable broadband to deliver HD video in the majority of the country not served by U-verse or FiOS.

Comcast will announce later this morning it has reached an agreement to acquire all of Time Warner Cable in an all-stock deal worth $44 billion.

If approved by regulators, Comcast will dramatically increase its size as the nation’s largest cable operator with over 33 million subscribers — vastly outnumbering every other cable company in the country. It also likely means Time Warner Cable broadband subscribers will eventually be subject to Comcast’s usage caps and overlimit fees, now being market tested around the country.

The offer of $159 a share for Time Warner Cable stock – $1 less than what TWC CEO Rob Marcus demanded for a buyout – is far higher than the $133 a share in cash and stock offered earlier by Charter Communications.

Tonight’s revelation that Time Warner Cable and Comcast reached a deal, first reported by CNBC, likely caught Charter by surprise. Charter had tried to acquire Time Warner Cable for months, going as far as nominating candidates for TWC’s board of directors that could have influenced a sale of the company. At the same time, Charter thought it was negotiating a friendly deal with Comcast to divide Time Warner Cable territories between the two companies.

Time Warner Cable management offered no clues they were negotiating with Comcast and delivered a presentation to shareholders last week promising major upgrades for Time Warner customers and future success as a standalone cable operator. All of those plans are now in doubt.

Comcast and Time Warner Cable reportedly believe the deal will quickly pass any antitrust review before the end of the year because neither company competes in the same markets, but Comcast will offer to divest a token three million subscribers from the combined company, according to sources.

The FCC formerly limited cable companies from owning or controlling more than 30% of the cable industry, but Comcast successfully sued to have that ownership cap overturned. A belief the deal would present looming antitrust problems could be grounds for the U.S. Department of Justice to oppose the deal, likely terminating it.

Consumer groups hope the deal gets derailed as soon as possible.

“In an already uncompetitive market with high prices that keep going up and up, a merger of the two biggest cable companies should be unthinkable,” said Free Press president Craig Aaron. “This deal would be a disaster for consumers and must be stopped. No one woke up this morning wishing their cable company was bigger or had more control over what they could watch or download. But that — along with higher bills — is  the reality they’ll face tomorrow unless the Department of Justice and the FCC do their jobs and block this merger. Stopping this kind of deal is exactly why we have antitrust laws.”

Hostile Takeover

Charter Communications does not like the resistance it is getting from Time Warner Cable executives over its bid to acquire the company so Charter has nominated 13 new members for TWC’s board of directors in an effort to force executives to reconsider.

Charter calls the baker’s dozen a slate of “independent candidates” that will be willing to evaluate Charter’s offer of $132.50 a share. Time Warner Cable’s current management says it won’t negotiate with Charter unless they offer $160 a share.

“It is clear from our meetings with Time Warner Cable shareholders that there is an overwhelming desire to combine these two companies to increase Time Warner Cable’s competitiveness, grow market share and create shareholder value.  Now is the time for the current Board and management of Time Warner Cable to respond to their shareholders and work with us to complete a merger to the benefit of shareholders while minimizing their execution and market risks,” said Tom Rutledge, Charter’s CEO.  “We are nominating a full slate of highly qualified, independent directors to elect to the Time Warner Cable Board and believe that stockholders will use this opportunity to express their views.  Our purpose in this proxy contest is to enable shareholders of TWC to raise their voice, and to provide a very capable board who will hear them.”

Charter has gotten a lucky break because all 13 current TWC board members are up for re-election at the same time this spring. Many companies avoid that practice to prevent a hostile bidder from taking control of an entire company’s board.

Charter’s roster of nominees includes a number of current or former CEOs, three former Wall Street lawyers and an ex-chief technology officer that used to work for Time Warner Cable. Many were associated with hedge funds, cable operators that sold out to larger players, or companies that either went bust during the Great Recession and were bailed out by U.S. taxpayers.

Charter Communications’ ‘Rescue Team’ for Time Warner Cable

1. James Chiddix: A cable industry veteran who formally retired in 2007, Chiddix worked for Time Warner Cable from the mid-80s until 2001. He now serves as a director at Arris Group, a manufacturer of cable equipment. Chiddix served on the board of Virgin Media, acquired last year by Liberty Global — which also has an ownership interest in Charter Communications;
2. Bruno Claude: Known primarily as a “turnaround” expert, Claude has a record of restructuring troubled telecom operators by cutting jobs and negotiating with the large investment banks that generously loaned the money that fueled overvalued takeovers to write down that debt when banks realize they have no hope of being repaid in full;
3. Isaac Corre: Currently a lecturer at Harvard Law School, where he teaches a seminar on executive compensation and corporate governance, Corre spent a decade at Eton Park Capital Management, L.P., a global hedge fund. Corre specialized in “event-oriented” investments and “distressed corporate debt”;
4. Marwan Fawaz: Spent a year in a leadership role at Motorola Mobility/Motorola Home Division. He has the distinction of serving as an executive at two bankrupt cable operators: Charter Communications and Adelphia. Charter eventually emerged from bankruptcy, Adelphia did not and two members of its founding family are spending 15 years in the Allenwood federal prison, convicted of wire and securities fraud. Charter’s press release says Fawaz would be a valued addition to the board because he has “a deep understanding of the cable television industry”;
5. Lisa Gersh: Lasted less than a year as CEO of Martha Stewart Living Omnimedia. Under her leadership, the company capped a year of turmoil that included layoffs, titles closing and the failure of Martha’s underwhelming Hallmark Channel show, according to Adweek. She was also a co-founder of Oxygen Media, which was sold to NBC;
6. Dexter G. Goei: An investment banker at Morgan Stanley back when it was hip deep in sub-prime mortgages and a taxpayer bailout, Goei was gone by 2009 and became CEO of Altice, S.A., a multinational cable company growing through acquisitions and takeovers. Goei is raising more capital through a stock IPO managed by Goldman Sachs and… Morgan Stanley;
7. Franklin (Fritz) W. Hobbs: In addition to serving as an adviser to private equity firms and director of Molson Coors Brewing Co., Hobbs has served as board chairman at Ally Financial, formerly GMAC, as GM declared Chapter 11 bankruptcy and was bailed out by U.S. taxpayers;
8. Neil B. Morganbesser: An investment banker, Morganbesser worked on mergers and acquisitions at Bear Stearns & Co., until the company’s sub-prime hedge funds sank like the Titanic. The investment firm was seeking taxpayer assistance, but ended up being acquired by J.P. Morgan in a hastily arranged deal instead. Charter claims Morganbesser has 20 years of experience providing financial and strategic advice to a full range of clients, including entrepreneurs, large corporations, governments, etc., but evidently wasn’t much help to his employer during the global financial crisis.
9. Eamonn O’Hare: Served as the chief financial officer of Virgin Media Inc., the UK’s leading cable television business, from 2009 until 2013. Unfortunately for him, most U.K. residents prefer satellite TV. But that didn’t hurt his bottom line. After Liberty Global acquired the operation in 2013, O’Hare got to share over $367 million in cash bonuses with certain other Virgin executives coming from a company that also has a vested interest in Charter Communications;
10. David A. Peacock: Another beer guy, Peacock most recently served as the president of Anheuser-Busch;
11. Michael E. Salvati: Another mergers and acquisitions guy, Salvati has been president at Oakridge Consulting, Inc., which provides interim management, management consulting and corporate advisory services to companies ranging in size from start-ups to multinational corporations, since February 2000. In short, he tries to promote financial growth at companies recently merged or acquired;
12. Irwin Simon: Founder of the Hain Celestial Group, a leading “natural and organic products company.” Brands including Arrowhead Mills, Bearitos, Rosetto and Rice Dream are well-known in organic food sections of local supermarkets, although few customers probably realize they belong to a giant conglomerate. Other divisions, specializing in “woo-woo personal care” offer dubious “calming body washes” costing $13 or more that feature extract of marigold. Charter says Simon would bring “his unique perspective on all aspects of advertising and marketing services” to a newly merged Charter-Time Warner Cable;
13. John E. (Jack) Welsh III: president of Avalon Capital Partners LLC — another private equity investment firm.

“If Time Warner Cable management refuses to negotiate on reasonable terms, we believe Charter will likely secure the votes required to win a proxy fight,” said Jonathan Chaplin, a research analyst with New Street Telco.

“It is clear that Charter is nominating a slate of directors for the sole purpose of pressuring our Board into accepting the same lowball offer that it previously considered and unanimously rejected,” said Time Warner Cable CEO Rob Marcus. “Our Board remains focused on maximizing shareholder value. We are confident in our strategic plan, which was detailed publicly on January 30, and we are not going to let Charter steal the company.”

Marcus may have one last card to play should Charter’s nominees end up on Time Warner Cable’s board of directors. All board members must serve the best interests of the company they oversee, not the company that helped get them elected. An independent evaluation of Charter’s offer must not be influenced by outsiders, or the board members may face lawsuits from angry shareholders. The Wall Street Journal notes this requirement has tripped up hostile bidders before. Air Products & Chemicals Inc. won three board seats at Airgas Inc. which Air Products had tried to buy back in 2010. Once on the board, the new board members recommended against the deal.