The Federal Communications Commission today approved a request from the National Cable and Telecommunications Association (NCTA), the chief cable industry lobbying group, that will allow cable operators to acquire competing phone companies under certain circumstances, which the Commission says will increase competition.

“Acquisitions of competitive [phone companies] by cable operators often will strengthen facilities-based competition for telecommunications services, which will in turn provide customers with better service and functionality and lower prices,” the Commission ruled.

The FCC theorizes that when a community is served by two (or more) telephone companies, there will be no degradation in competition if the local cable operator acquires one of them. The Commission suspects most cable operators seek out competing phone companies that target business customers for commercial telephone service. The FCC believes that such acquisitions will enhance the cable company’s competing phone service. That, in turn, will theoretically force the dominant phone company to lower its prices to compete with a strengthened cable competitor.

But officials from Montgomery County, Maryland thought some of the FCC’s logic was short-sighted, noting cable companies have been substantially boosting investments in commercial services on their own, without buying the competition. Montgomery County officials worry the unintended consequence of fewer players in the market could be higher prices for residential customers:

“With this level of growth in commercial services revenues by cable companies, any new cable-[telco] merger might reduce competition by merging two competitors rather than “injecting” competition in a local marketplace as the [NCTA] claims,” the county’s legal team wrote. “And the impact on the local residential marketplace of any cable-[telco] merger can only serve to lessen competition for residential customers as the cable companies already are dominant wireline providers in their local residential markets. Thus, a declaratory order will not necessarily promote competitive market conditions at all, and could in fact facilitate a substantial decrease in competition.”

AT&T has sent the Federal Communications Commission a bait and switch checklist that, despite the stated purpose of modernizing telecommunications networks, would also allow the company to completely abandon its landline network and win near-complete deregulation of its broadband service.

On Tuesday, August 28, Christopher Heimann and I met with Matthew Berry and Nicholas Degani, respectively Chief of Staff and Legal Advisor to Commissioner Pai, to discuss actions the Commission can and should take to facilitate the retirement of legacy TDM-based networks and services and transition to an IP-based Network/Ecosystem, consistent with federal policies and objectives, including those enunciated in the National Broadband Plan.

At the request of Commissioner Pai, AT&T has prepared and is submitting herewith a checklist of those actions, which identifies the critical first steps the Commission should undertake without delay to begin the transition as well as additional steps that would facilitate completion of that transition.

Under the existing statutory and regulatory framework, carriers already can undertake the steps necessary to make the transition, including, in some cases, steps requiring Commission approval (such as withdrawing legacy TDM-based services). But, insofar as the transition raises a number of novel and likely contentious issues, Commission action on the items included on the attached list would greatly facilitate and thus hasten completion of the transition. The steps we identify implicate an array of issues raised in the above-referenced dockets. Accordingly, we are filing the checklist in each such docket.

Respectfully submitted,

Robert W. Quinn, Jr.

AT&T’s letter and attached checklist are documents only a policy wonk or careful observer of Big Telecom could easily navigate. Despite the thicket of opaque terms like “TDM” and the not-immediately-apparent importance of the difference between an “information service” and a “telecommunications service,” AT&T has, to borrow a phrase from President Obama, some brass ones making its intentions perfectly clear.

With the help of Bruce Kushnick, executive director of New Networks Institute and a former telecom industry insider, we will guide you through AT&T’s filing and what it really means.

AT&T lists several “critical first steps” (we have put them in bold) to achieve the transition to an all-IP telecom world, retiring the traditional “public switched telecommunications network” (PSTN) which you know better as a landline.

1. Establish a date certain for an official TDM-services sunset, after which no carrier would be required to establish and maintain TDM-based services/networks, and purchasers of such services (including circuit-switched and dedicated transmission services) would have to switch to IP or other packet-based services.

No casual observer of FCC filings would be expected to understand the implication of setting a date to officially sunset “TDM services.” TDM is synonymous with the landline network Ma Bell established more than 100 years ago — the one that gives you a dial tone, DSL, and access to dial-up Internet where broadband is unavailable. AT&T wants the FCC to manage what the company has not been able to consistently accomplish on the state level: setting a final date when traditional landline service can be permanently disconnected, preferably at the convenience of the phone company.

2. Clarify that any state requirements forcing service providers to maintain TDM networks and services […] following the TDM sunset are preempted. Such requirements could deter investment in broadband, and thus are inconsistent with and pose an obstacle to federal law and policies encouraging the transition to all IP networks and services.

This provision would effectively eliminate any existing state laws or regulations that require AT&T to deliver a fairly-priced, well-run landline service for customers throughout its service area. Some states have not bought into AT&T’s lobbying juggernaut, often delivered with the help of the American Legislative Exchange Council (ALEC). Despite the enormous sums spent lobbying legislators, some states have kept oversight in place requiring AT&T to serve everyone that wants phone service. With this provision, those state laws and regulations would be pre-empted.

AT&T claims state requirements somehow deter broadband investment, a curious conclusion considering AT&T has already largely ceased its expansion of DSL and U-verse services.

3. Complete action in the IP-enabled services proceeding, and classify such services as information services, subject to minimal regulation only at the federal level. The Commission could permit service providers to offer DSL or other broadband transmission services on a common carrier basis if they so choose, but in no event should a provider be required to do so. 

Quinn

This is AT&T’s provision to kill regulation and destroy competition. Government rules, regulations, and oversight apply largely to “PSTN” landline services, not to IP-based or broadband networks. Basic landline service is designated a “telecommunications service” by the FCC, which makes it subject to regulator review. Broadband, on the other hand, and anything else using IP, is typically classified as an “information service,” where most oversight regulations do not apply.

AT&T’s plan is to shut down today’s landline “telecommunications” service in favor of IP-based Voice over IP, which would effectively reclassify your phone line as an “information service.” That means by changing just one word — “telecommunications” to “information” — AT&T can walk away from a century of basic consumer protection rules and regulations. AT&T also gets a divorce from its telecommunications service obligations as a “common carrier,” which requires AT&T to deliver service to any customer who requests it, at a fair and reasonable price, without changing its form or content.

If AT&T’s broadband networks were reclassified as a “telecommunications service,” Net Neutrality would be easy to enforce under the “without changing its form or content” provision of common carrier rules. Back in the 1996 Telecommunications Act, AT&T’s lobbyists had already made their mark, creating new “distinctions” of telecommunications services, some more regulated than others. Now AT&T is back to kill off the last regulatory obligations it still has to endure, taking Net Neutrality to the grave once and for all.

4. Reform Interconnection – after the official date for the TDM sunset, no carrier or other provider of TDM based services should be entitled to require others to interconnect in TDM. The Commission should take action to maintain the market-based, regulation-free interconnection regime that has applied to IP-based interconnection for decades.

[…] Reform wholesale obligations under section 251/271 to eliminate unbundling, resale, collocation and other requirements that could require ILECs to maintain TDM networks and services.

These particularly opaque sections give AT&T’s competitors real nightmares because they would wipe out requirements that phone companies open certain facilities to competitors who deliver services over AT&T’s network. If AT&T’s recommendation is adopted, no competitor would be safe if AT&T eventually padlocks access to its network.

But AT&T does not want its intentions to be that obvious. It throws a transparent bone to regulators to offer a facade of competition in both this and the preceding recommendation.

AT&T instructs the FCC it can mimic the time-honored patina of an open, competitive industry by allowing AT&T’s competitors to sell DSL or other broadband services over AT&T facilities, but only if AT&T feels like it (at comfortable prices that don’t undercut AT&T).

5. Eliminate regulatory underbrush/superstructure that accompanies TDM-based services. For example, phase out equal access, residual ONA/CEI, record-keeping, accounting, guidebook, dialing parity, payphone, and data collection (which should be limited to that which is collected on the Commission’s Form 477) requirements.

AT&T leaving town.

What AT&T calls “underbrush,” consumers and regulators call oversight and consumer protection.

“Sayonara any telco rules, regulations and oh yes, your rights,” says Bruce Kushnick. “Your service breaks… tough. Prices go up and there’s no direct competition — too bad. Networks weren’t upgraded — so what.”

Kushnick notes this provision would allow AT&T to avoid maintaining a public record of its performance (and its potential abusive practices, bad service, and high prices), including any requirement on the state or federal level to tell the public anything about how well we are being served by the wired monopoly.

Other things on AT&T’s hit list: “Equal Access,” which opened the door to competitive long distance calling and lower rates, “Dialing Parity” which lets you avoid dialing ten (or more) digits for every call (or being forced to learn more complicated numbers for things like directory assistance or other shortened dialing numbers), and public payphones. AT&T’s desire to kill off “residual ONA” refers to the costs to establish Open Network Architecture — the framework for opening up the nation’s phone monopoly for competition. Re-establish the monopoly and there is no reason to fret about the costs to maintain access for competitors AT&T will eventually eliminate.

6. Further reform USF to provide support for broadband regardless of the regulatory classification of broadband services, eliminate any obligation to offer such services on a common carriage basis to be eligible for such support, and provide incentives for service providers to invest and offer services necessary to ensure that no one is left behind by the transition to an all-IP, broadband ecosystem.

The reform of the Universal Service Fund has already opened up opportunities for rural telecommunications companies to apply for broadband infrastructure grants to expand broadband in rural America. Only AT&T has refused to participate in the current round of broadband grants because they do not like the rules. AT&T wants a free hand to receive broadband funding, so long as it faces no questions about where the money gets spent. Under AT&T’s recommendation, the company would receive money with no obligation to ensure everyone who wants broadband in rural America can get it. It also wants the government to hand out money to providers to implement their goal of regulatory nirvana — the conversion of basic landline service to Voice over IP, idolized as the golden calf of ultimate deregulation.

But although providers won’t be left behind, consumers might be:

7. Establish/reform rules to facilitate migration of customers from legacy to IP-based services and to prevent customers that procrastinate or fail to migrate from holding up the transition. For example, establish a process for identifying a default service provider if a customer fails to migrate, and/or permit service providers to notify customers that they will be dropped from service as of a date certain if they have not migrated to an alternative service/service provider. 

This particularly arrogant provision would put a stop to Aunt Maude holding up AT&T’s grand plan to live a regulation-free lifestyle. How dare she drag her feet with AT&T’s agenda at stake? If your elderly parents or extended family don’t understand why AT&T is meddling with their landline service and don’t want to change, AT&T has an unsympathetic solution. Under their recommendation, your parents would find themselves with a “default service provider” they might not want to do business with or, even worse, simply leave them with a dead phone line AT&T has no interest in repairing. But AT&T would likely still get their way. In rural areas they already cover, AT&T would be the “default service provider” because it is the only service provider. If Maude wants her phone line back, the only way she will get it is choosing the migration to Voice over IP AT&T intended all along.

AT&T’s language is remarkably frank, but was never intended to be viewed and explained to the public at large. It was the product of a phone company lobbyist talking to a politician, staffer, or regulator that one day could become an employee of that phone company. The only way to stop this cozy relationship is to tell regulators you are watching (and understanding) the game being played here.

Phillip “Artificial Scarcity for Fun and Profits” Dampier

It would be an understatement to say I’ve heard the argument once or twice that there is simply no economic room for additional players to enter what Big Telecom companies always claim is a robustly competitive marketplace for Internet access.

Virtually every company facing inquiries from regulators, politicians, and consumers always makes the point today’s deregulated broadband playing field is an excellent example of free market competition at its best.

While they advocate for even more deregulation, oppose the entry of community-owned broadband services, and demand more spectrum from Washington lawmakers, we endure a veritable monopoly/duopoly for Internet access. Their defense, after a dismissive rolling of the eyes, is that we just don’t understand business.

Enter Tim Lee, writing for the alternate reality reader of Forbes, who decided to prove his argument by comparing broadband with Supercuts:

Being the first to build a hair-cutting shack in a particular customer’s backyard can be pretty lucrative. It gives you a de facto monopoly on that household’s haircut business. Let’s assume that it takes 4 years worth of haircuts to recoup the costs of building a shack for a particular household. While barbers will need to raise some extra capital to build the shacks, in the long run the owner of the first shack may be able to earn big monopoly rents.

Now along comes a new barber who wants to enter the hair-cutting business, but every household already has at least one hair-cutting shack. So he needs to build hair-cutting shacks in backyards where another barber has already built one. And that’s an economically precarious situation. Remember, we assumed a monopolist needs to do 4 years worth of haircuts in order to break even. But if you build a shack in a backyard that already has another barber in it, you shouldn’t expect to get more than half of the customer’s business, on average, over the long run. Not only that, but competition will push down prices, so you’ll have to do more haircuts to recover the costs of construction. So you’ll be lucky to recover your initial investment within 8 years, and it could easily take more than a decade.

And things are even worse for the third or fourth barber who builds in a particular backyard. The fourth barber will be building in a yard that already has three barbers. He can only expect to attract 25 percent of the household’s business, and strong competition among barbers means his margins will be pretty thin. It’s hard to see how he could ever recover the costs of his investment.

Brushing away the hair-cutting analogy, Lee’s point is that it is wasteful and inefficient for competitors to overbuild new networks where others already exist. The phone and cable companies that dominate the marketplace today decry additional competition as a death blow to their business models, because with so many providers fighting for customers (by lowering prices and offering better service), not every provider can sustain a profit Wall Street investors expect quarter after quarter. This argument is particularly common when attacking those dastardly socialist community-owned broadband providers they say destroy private enterprise (while unconvincingly also warning they will always fail and cost taxpayers millions on the way down). It is also why Wall Street continues to beat the drum for additional consolidation in the wireless marketplace, where anything more than AT&T and Verizon Wireless represents too much revenue destruction.

Lee does make some valid points:

1. Infrastructure costs are the biggest expense in launching a new network, especially wiring the last mile to customers;
2. Verizon FiOS overestimated its potential market share and found it harder to turn a profit than first anticipated;
3. Other utilities have avoided building redundant networks (ie. you don’t have two companies providing their own electric, water, and gas lines).

When communities decide to offer their own broadband service, incumbent cable and phone companies spend big bucks to scare residents.

But Lee’s conclusion is entirely favorable to the industry he often defends — that is just the way things are and customers should not expect anything better.

Those arguments are usually also the basis for free market declarations that if a private company cannot find a way to deliver a service at a profit, then those left out will just have to do without.

Thankfully, despite Lee’s criticism of Google Fiber in Kansas City as “extremely wasteful,” the search engine company is perhaps best positioned of all to turn the industry’s common refrain against new competition on its head.

Every so often, a surprising third party shows up with the resources to ignore Wall Street’s conventional wisdom. Enter the deep pockets of Google Fiber or a bond-backed community provider threatening to deliver service far better than what a community currently enjoys. The predictable defense from incumbent providers:

• Nobody needs faster broadband speeds;
• Community networks are a government takeover of the Internet;
• Fiber optics are expensive and represent an unnecessary investment;
• Public broadband destroys private investment and jobs at incumbent commercial providers;
• This is just a political stunt, not a real effort at taking Internet speeds to the next level.

Without the kind of competition on offer from Google, community providers, and private providers like Verizon taking a chance on FiOS fiber optics, there would be no room for innovation in the marketplace.

Provider tolerance for today’s marketplace duopoly and the lackluster service that results is reminiscent of a joke told by President George W. Bush’s in 2000: “If this were a dictatorship, it would be a heck of a lot easier…just so long as I’m the dictator.”

It is easy for today’s comfortable duopoly providers to take shots at would-be competitors while dragging their feet on network upgrades. They have little to fear with Wall Street on their side, joining opposition to new competition as harmful to profits. Even Verizon Communications, one of the two dominant providers, quickly heard from analysts irritated with the infrastructure expenses involved upgrading to a fiber optic network. At the heart of that criticism was a sense it was an unnecessary expense, with no reason to change the safe and reliable status quo. Innovation that costs money is the enemy of Wall Street, unless competition warrants the investment.

Therein lies the key. Effective, disruptive competition demands companies do something different. Lee may be right that three companies cannot easily bring home the big profits. Wall Street may have to make do with less. In a competitive market, the player offering the least will be the first to innovate to keep or attract customers, or eventually close their doors. Those remaining will compete in turn to deliver the best possible service at the lowest possible price. That itself is a departure from the comfort zone enjoyed by phone and cable operators today where neither feels much pressure. Cable companies won’t ever compete with other cable companies and the same is true for phone companies. But if a company like Google arrives, the decade-long coffee break is over.

Want proof? Just look at cable operators struggling to keep video customers who are now finding alternatives with Netflix and online viewing. They are increasingly looking for ways to enhance the value of cable television by offering online viewing themselves. Even rate increases have slowed. If Netflix and cord-cutting were not factors, would cable companies have changed the way they do business?

Google’s marketplace disruption delivers for consumers.

Lee is right saying it is not easy to break into the broadband business. Only some might realize the same investors and Wall Street barons that dislike profit-eroding competition also often happen to be in the business of loaning money to finance new businesses. More than a few will turn those loans down as too risky to contemplate.

But here comes the rhetorical trap Lee’s argument gets ensnared in: If running redundant networks is wasteful and we still need competition, the logical solution would be to construct or nationalize one advanced network on which all providers would market their services. Why waste time and money on duplicate copper and coaxial networks when a single fiber to the home network could deliver improved service well beyond what the local phone and cable company can offer.

Isn’t the answer to run a single telecommunications line into customer homes (one preferably not controlled by any provider), and let competition bloom on that advanced infrastructure? That is the solution Australia has chosen, scrapping the country’s ancient copper wire phone lines in favor of one national fiber network. Most community providers also operate open networks that other cable and phone companies can utilize (but often petulantly refuse).

Somehow, despite the enormous savings possible from sharing or offloading network infrastructure expenses, I doubt providers will consider that the kind of innovation they want or need.

Earlier this year, Bell Canada announced a blockbuster $3.38 billion offer to buy Astral Media, Inc. It is just the latest rush towards media concentration in Canada as the country’s largest cable and phone companies acquire a growing number of television networks, cable services, radio and broadcast television outlets, magazines, and other media.

Bell Canada already owns CTV – a major broadcast network, and TSN sports. Now it is back for more — Astral Media, the company that owns HBO Canada, The Movie Network, Family, Viewers Choice and lots more.

If this deal wins approval, one company will control 37.6% of TV viewing in Canada, more than twice the amount of its largest competitor. It means Bell will be able to set rates for some of Canada’s most popular cable networks and shows — putting competitors at a major disadvantage and forcing you to pay more to watch.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Say No to Bell Canada.flv[/flv]

Say No to Bell’s ad campaign fighting Bell Canada’s attempt to buy Astral Media.  (1 minute)

The federal government has to approve this deal, and a growing number of competing media companies, consumer groups, and politicians are coming together to oppose it.

Stop the Cap! believes Bell Canada owns too much already, and has repeatedly demonstrated that when it flexes its marketplace muscle, consumers pay more for less service. Add your voice against this deal by submitting a letter to Canada’s Ministers of Heritage and Industry, the Competition Bureau, the CRTC and your Member of Parliament and visiting the other opposition websites noted below.

No company needs to own and control 79 TV channels, 107 radio stations and more than 100 major Canadian news, entertainment, and cultural websites.

Even smaller Canadian cable companies fear this deal. Cogeco Cable, Eastlink, and Quebecor (parent company of Vidéotron), have joined forces to launch saynotobell.ca, a website to help consumers fight back. Quebec-based consumer group Option consommateurs has its own online petition in French, and Openmedia’s Stop the Takeover Coalition includes a range of pro-consumer forces opposed to the deal:

• OpenMedia.ca
• the Public Interest Advocacy Centre (PIAC)
• the Canadian Internet Policy and Public Interest Clinic (CIPPIC)
• Canada Without Poverty and the CWP Advocacy Network,
• the Canadian Media Guild (which represents over 6,000 media workers, including those from CBC, Reuters, the Canadian Press, and Shaw Media),
• the Consumers’ Association of Canada,
• the Council of Canadians (Canada’s largest citizens’ group),
• the Council of Senior Citizens’ Organizations of British Columbia (COSCO),
• Union des consommateurs.

Some of the arguments against the deal to consider:

• Bell Canada’s TV audience share would be 50% greater than the share of any TV network in the US, Japan, UK, Australia, France, and Russia. It would allow one corporation to control the programming (including news) on a scale not seen outside of countries like Italy, Brazil, and Mexico. When politicians have that much control of the media, they use it to influence viewers. Would Bell do any different?
• Bell can set the rates, terms, and bundling requirements for popular cable programming and services. They have already shown a willingness to tell independent ISPs they must set usage limits on their customers just as Bell does already. What would stop them from insisting you subscribe to more services in order to watch the programming you want?
• Mergers=job losses and cost cutting to pay for inflated bonuses and “cost savings” to help finance these blockbuster deals. Without competition, original Canadian productions can be slashed to the bone or canceled altogether. Why deliver quality when you can limit viewers’ alternative choices instead?
• America allowed media consolidation in radio and television and turned vibrant local stations into corporate money-machines at the expense of local news, original shows, and local content. How many radio stations in the United States now operate like automated electronic jukeboxes? How many local TV newscasts signed off for good to “save money.” Can Canadian local news, weather, and informational programming survive Bell’s ax? If it happened in the United States, it can happen in Canada too.

Ensure diversity by disconnecting this Bell deal permanently, and tell your elected leaders to stop allowing endless media consolidation.

[flv width=”576″ height=”344″]http://www.phillipdampier.com/video/Globe and Mail How much of a competition threat is Bells Astral deal 8-24-12.flv[/flv]

The Globe and Mail considers the issue of Bell’s takeover bid for Astral Media. How will it affect Canadian consumers? (2 minutes)

A surprise announcement from the U.S. Supreme Court that it will hear an appeal brought by Comcast Corporation in a class action lawsuit brought on behalf of Philadelphia consumers, despite a pending settlement, may mean the Supreme Court is on the verge of issuing another business-friendly ruling that will make class action cases more difficult to file.

Comcast had reached a tentative settlement in June with lawyers who brought a $875 million class-action lawsuit on behalf of Philadelphia area cable subscribers. The antitrust case, originally filed in 2003, accused Comcast of strategically swapping or acquiring cable systems owned by Marcus Cable, Greater Philadelphia Cablevision, Inc., Lenfest Communications, Inc., AT&T, Adelphia Communications Corp., Time Warner, and Patriot Media in and around Philadelphia for the purpose of creating a super-sized Comcast cable system that could deter competitors from entering the market and allow Comcast to charge higher prices for service.

RCN Telecom Services originally intended to compete for cable customers in the Philadelphia region, but found it could not break into the market because Comcast allegedly hired as many available technicians it could find and tied them down with exclusive contracts. RCN also claimed Comcast targeted potential customers with special, allegedly below-cost deals to retain their business. RCN later filed for bankruptcy.

“Stated bluntly, Comcast and other large cable operators have demonstrated both the inclination and the wherewithal to use their market power to crush broadband competition in their local markets whenever it has the audacity to appear,” RCN alleged.

In 2002, RCN went public with a series of allegations:

Comcast intimidates independent construction and installation contractors. Comcast prevented or tried to prevent about 15 Philadelphia-area contractors from doing business with RCN through “non-compete” clauses, RCN alleged. The company provided specific names of contractors and Comcast personnel in sealed documents.

Those practices dated at least to the late 1990s, when Comcast acquired Suburban Cable, RCN said. Both Suburban and Comcast went “to extraordinary lengths to document ‘violations’ and intimidate contractors who were thought to be in contact with, or working for, RCN,” RCN said.

RCN cited instances of Suburban Cable employees, many of whom later worked for Comcast, allegedly following contractors in their trucks and taking photographs to document contractors seen at an RCN office or work site. These photographs then became “evidence,” RCN said, to support contractors’ termination.

As for predatory pricing, RCN claimed that before its entry into Folcroft in 2000, Comcast allegedly established a sales “swat team” instructed to sign up customers for 18-month contracts in exchange for cheaper cable services.

The plaintiffs’ attorneys want subscribers to receive refunds representing the savings they would have enjoyed had a competitor successfully forced prices down.

Comcast and the plaintiffs’ counsel reached a tentative settlement in June after both sides learned the lawsuit would proceed to trial this September. But in a surprise announcement, the U.S. Supreme Court suddenly decided to step in and hear an appeal filed by Comcast. Comcast immediately declared the settlement incomplete and has now declined to proceed with it, believing it has a more favorable outcome waiting at the Supreme Court.

Kenneth A. Jacobson, a professor at Temple University’s law school, told the Philadelphia Inquirer the Supreme Court does not typically decide to hear a case “during the settlement negotiation and approval process.”

Other Supreme Court watchers suspect the Court’s sudden involvement in the case means it is likely to issue a precedent-setting decision, more likely than not in Comcast’s favor, that will be talked about in law journals for the next decade.

Comcast Center in downtown Philadelphia

The specific point of Comcast’s appeal that interests the Supreme Court has to do with how a class action case certifies damages to the court hearing the case. The Supreme Court agreed to hear the case based on, “whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

Currently, courts insist that the burden of proof for damages lies with the plaintiff, but they are not necessarily required to demonstrate the actual individual damages suffered by each member of a proposed class action. Many judges accept the concept of fixed group damages based on a composite of an average proposed class member. That amount gets multiplied by the number of members in the certified class action to arrive at the total requested damages. Typically, both sides negotiate a final settlement, deduct attorney fees and costs, and then class members typically get a change in a company’s policies, coupons good for a future purchase or an actual refund in the mail.

The Supreme Court may find that concept inadequate, and insist on a detailed analysis of actual harm done to each proposed class member — a high and potentially expensive hurdle to cross for many class action cases. Legal analysts suggest the intended effect of such a decision would be to further deter class action lawsuits against companies, because the costs and complexities involved would increasingly not be justified.

In the Comcast case, the cable company wanted the court to dismiss the case, and for some very novel reasons:

1. Since Comcast effectively kept competing “overbuilding” cable systems out of Philadelphia, there is no evidence of any theoretical competition benefits such as reduced prices;
2. Since no competitor actually got their service up and running in Philadelphia, Comcast argues there was no competition to eliminate;
3. RCN, in Comcast’s view, was never actually going to start service in Philadelphia because of their own financial woes;
4. Without actual competition in Philadelphia, there is no basis for any expert witness hired by the plaintiff to credibly estimate damages;
5. Even if Comcast was engaged in anti-competitive behavior in Delaware County, that cannot be used by plaintiffs to serve as evidence of class-wide impact for the entire multi-county Philadelphia Comcast cluster.

Over the past few years, the Court has ruled in favor of corporations trying to compel less-costly legal avenues — like mandatory arbitration — for consumers who feel harmed by a company’s actions.