While AT&T argues its blockbuster merger with Time Warner, Inc., will not represent an increased risk of media consolidation and antitrust abuse, that same phone company is now facing time in court to answer a lawsuit filed today by the Justice Department accusing AT&T of unlawful collusion with cable operators over the pricing of a Southern California regional sports channel.

DirecTV — now owned by AT&T — is accused of being the ringleader of an illegal “information-sharing” scheme that traded confidential information between the satellite provider, AT&T, Cox Communications, and Charter Communications regarding carriage contract negotiations between SportsNet LA (now known as Spectrum SportsNet) and competing pay television companies.

SportsNet LA has been in the news since its launch. Owned by the Los Angeles Dodgers and initially distributed by Time Warner Cable, SportsNet LA was rejected by most of its pay TV rivals after they balked over the asking price.

Now the Justice Department is accusing DirecTV of a secretly coordinating the sharing of confidential information between the area’s cable operators and AT&T that “corrupted” negotiations with Time Warner Cable over the price to carry the channel.

With all of Southern California’s major cable companies and AT&T allegedly colluding with DirecTV, the providers could create a united front to demand a better price and terms for the sports channel. In the end, it didn’t work and Charter, Time Warner Cable’s new owner, remains the largest operator in the region to carry the network. Critics suggest Charter changed its mind about carrying the channel only to remove it as a potential issue in its merger with the larger Time Warner Cable.

“Dodgers fans were denied a fair competitive process when DirecTV orchestrated a series of information exchanges with direct competitors that ultimately made consumers less likely to be able to watch their hometown team,” said Justice Department lawyer Jonathan Sallet.

The Justice Department brought the case exclusively against DirecTV’s parent company — AT&T.

Cox was relieved not to be sued.

“We are gratified that we were not named as a defendant. We continue to be committed to making independent decisions on program content,” a Cox spokesperson said in a statement. Charter has refused to comment.

For now, AT&T plans a robust defense in court.

“The reason why no other major TV provider chose to carry this content was that no one wanted to force all of their customers to pay the inflated prices that Time Warner Cable was demanding for a channel devoted solely to LA Dodgers baseball,” AT&T said in a statement. “We make our carriage decisions independently, legally and only after thorough negotiations with the content owner. We look forward to presenting these facts in court.”

But the case highlights critics’ concerns that allowing AT&T to grow even larger with the acquisition of Time Warner, Inc., only increases the chances of more alleged antitrust violations and collusion between players in the increasingly concentrated pay television market. Since SportsNet LA launched in 2014, Charter Communications has merged with Time Warner Cable — changing the name of the sports channel to Spectrum SportsNet, Verizon Communications has sold its FiOS network to Frontier Communications, which already provides service in parts of California, and AT&T has purchased DirecTV outright. Only Cox remains untouched by the recent wave of consolidation, although many analysts expect a takeover bid from Altice USA sometime in 2017.

The deck is stacked against independent cable operators fighting to stay competitive in a marketplace obsessed with consolidation and volume discounts on cable programming. The excessive costs paid by small, often family owned cable operators have now become so great, they are impeding broadband upgrades and expansion, according to the American Cable Association.

The ACA represents small and medium cable operators that live in a different world than Comcast and Time Warner Cable. For years, these smaller, usually rural operators have been at a disadvantage negotiating with cable programmers for reasonable programming rates. The largest cable operators win the best volume discounts, often offset by higher rates for the smaller cable companies that are typical of ACA’s membership roster.

With the FCC now enforcing Section 706 of its mandate requiring the Commission to advance the cause of competitive and ubiquitous broadband, the ACA has gotten creative in comments urging the FCC to crack down on the kinds of unfair programming contracts that force small operators to spend an ever-increasing amount of their budgets on cable television networks instead of broadband expansion.

Video margins are dropping, which means smaller operators have less to invest in broadband. (Chart: SNL/Kagan)

“It has become evident that the increasing prices video programmers and broadcasters charge multichannel video programming distributors (MVPDs) can act as a drag on broadband deployment,” said ACA president Matt Polka. “If these prices continue their upward spiral, existing providers of both broadband and MVPD services and new entrants will be deterred from expanding their broadband networks or otherwise undertaking new builds.”

Removing barriers to investment is one of the requirements the FCC is supposed to enforce under Section 706 and it has recently shown a willingness to do that by overturning Tennessee and North Carolina laws restricting the growth of municipal broadband. The ACA now wants to learn if the FCC will give small cable operators some relief as well.

The ACA argues that broadband providers must offer consumers video along with broadband and voice services, yet they face ever-increasing video programming costs that squeeze margins.  As a result, smaller triple play providers’ ability to achieve a sufficient return on investment for deploying broadband, particularly in new areas, is quickly diminishing.

The trade group wants the FCC to reform program-access rules to guarantee fairer treatment for smaller cable operators who depend on group buying power through buying co-ops like the National Cable Television Cooperative. The ACA also wants a prohibition on programmers yanking their signals in the middle of retransmission consent contract negotiations. The ability to pull a signal off a cable system gives programmers an unfair negotiating advantage according to the ACA.

Several million Time Warner Cable and Bright House customers in New York, California, Texas and Florida will lose CBS programming this Wednesday at 5pm if the three companies do not iron out their differences in contract renewal negotiations.

CBS and Time Warner Cable have taken their fight public over retransmission consent talks that have left the two sides far apart. The cable operators say CBS has gotten greedy asking for as much as 600 percent more than what the cable companies paid under the old agreement that expired in June. CBS says the fact its stations have never been thrown off cable systems before is proof that their terms are reasonable.

Cable analysts say CBS’ old agreement cost the two cable operators between 75 cents and one dollar a month per subscriber. Most believe CBS is now asking for between $1-2 a month per subscriber to renew the agreement.

CBS wants to be paid at levels comparable to the most popular cable networks and believes the fact the network is now number one in the ratings delivers negotiating power. CBS has not made its aggressive position on carriage fees a secret. Executives have told investors it plans to quadruple cable and satellite fees over the next four years with a goal to raise an extra $1 billion. Wall Street analysts have recommended the stock to investors and its value has risen at least 65% in the past year.

But Time Warner Cable spokeswoman Maureen Huff believes CBS is asking for too much.

“Broadcasters have already hit customers with 84 broadcaster blackouts in the past 18 months,” Huff said in a statement. “Les Moonves, president and CEO of CBS, has always been outspoken about the programming fees he believes he deserves. He has said ‘the sky is the limit’ when talking about the price he thinks he deserves for his CBS stations, and he clearly means it. He doesn’t seem to care about our customers’ budgets or the going rates for CBS programming.”

But critics contend Time Warner Cable does not come to the table with clean hands on the issue of expensive carriage fees. Time Warner Cable seemed less concerned about the skyrocketing costs of cable programming when it set high asking prices for TWC-owned regional sports networks SportsNet and TWC Deportes.

CBS says it deserves at least as much as what Time Warner Cable pays Time Warner Entertainment’s TNT, which reportedly charges at least $1 a subscriber.

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CBS is now running this ad in New York City warning Time Warner Cable customers they are about to lose WCBS-TV, the local CBS affiliate.  (1 minute)

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Not so fast, says Time Warner Cable. CBS wants 600% more for WCBS, driving up the price customers pay for cable television. (1 minute)

If no agreement is reached, CBS expects customers will lose access to its network-0wned affiliates starting at 5pm Wednesday afternoon. Although most media reports are focused on the fact CBS stations in New York, Los Angeles, and Dallas are affected, not all are CBS affiliates. In fact, customers in a few other cities will also find their CBS-owned stations dropped:

• New York: WCBS (TWC)
• Los Angeles: KCBS, KCAL (TWC)
• Dallas-Ft. Worth: KTVT, KTXA (TWC)
• St. Petersburg-Tampa: WTOG (Bright House)
• Riverhead (Long Island): WLNY (TWC)

Some Bright House customers are also affected by dispute.

The Wall Street Journal reported that Time Warner Cable and Bright House would also drop Showtime from lineups across the country in a retaliatory move, but this was not confirmed by either cable company.

Station owners are seeking higher retransmission consent payments from cable and satellite operators to establish additional sources of revenue. Pay television customers ultimately foot the bill with higher priced cable television service. As prices rise, pay television operators increasingly worry customers will either defect to a competitor or cut the cable television cord for good. Some operators are adopting a tougher stance, willing to drop stations from the lineup.

Most station owners believe the larger number of stations they own or control, the less likely a cable operator will actually throw a station off the lineup. This month, Wisconsin-based Journal Broadcast Group is threatened with the loss of nearly half of its 15 television stations on Time Warner Cable systems in Wisconsin, Nebraska, and California:

• WTMJ Milwaukee
• KMTV Omaha
• WGBA Green Bay/Appleton, Wisc.
• WACY Green Bay/Appleton, Wisc.
• KMIR Palm Springs, Calif.
• KPSE Palm Springs, Calif.

Bigger is better

Some stations have been off the lineup since July 10 in some markets, with digital sub-channels first removed by Time Warner Cable in a warning shot in others.

Larger station owners like Sinclair Broadcast Group have felt less threatened. The more stations under negotiation, the more leverage station owners have in contract renewal talks.

Sinclair is further boosting its position in the local TV station business, spending almost $2 billion in the last 18 months buying 81 more television stations.

Sinclair owns and operates, programs or provides advertising sales services to 140 television stations in 72 markets nationwide. They are a force to be reckoned with. Despite angry words over the station owner’s asking price, both Dish Networks and DirecTV renewed their carriage agreements with Sinclair without disrupting viewing.

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The Wall Street Journal’s “Moneybeat” looks into the retransmission dispute between CBS and Time Warner Cable and what impact it may have on viewers. (5 minutes)

We know what you are watching.

AT&T’s efforts to expand its U-verse platform to more communities is all about improving AT&T’s growing revenues in the broadband business and further monetizing customers’ broadband usage.

Those are the views of Jeff Weber, AT&T’s president of content and advertising sales. Appearing at last week’s Nomura Global Media Summit Conference, Weber also admitted AT&T is using viewer data collected from U-verse TV set-top boxes to help decide what networks to carry and which can be dropped because of lack of viewership.

Weber appeared at the conference to talk about the implications of Project Velocity IP — AT&T’s investment in expanding its U-verse platform and its proposal to transition rural landline customers to AT&T’s wireless service.

AT&T claims when the project is complete, two-thirds of its landline customers will have access to U-verse, and 99 percent of AT&T’s wireline service areas will be covered by AT&T’s mobile network.

Weber’s job primarily focuses on AT&T’s U-verse TV service — dealing with all the networks on the lineup and selling advertising time.

Although television programming is an important revenue generator for AT&T, broadband revenue is the real focus behind AT&T’s U-verse expansion.

“At the core, it is about improving the fundamental broadband business, extending our footprints to be able to cover more of our customers,” Weber said. “Because our core belief is that the broadband business is [going to be] a very good business for a long time.”

Weber

One way AT&T can further increase revenue is to limit broadband usage and charge overlimit fees for customers who exceed their monthly allowance. AT&T currently limits DSL customers to 150GB of usage per month, 250GB for U-verse broadband. The overlimit fee is $10 for each additional 50GB of usage. At present, both the usage limits and overlimit fees are not broadly enforced in many areas.

“I think very clearly incremental broadband usage is going to drive incremental revenue,” explained Weber. “Part of that assumption is that as traffic continues to grow, you need to be able to monetize that traffic in some way, shape or form. At the end of the day, it’s a pretty efficient market and a really efficient way for customers to pay. In almost every other way the more you use, the more you pay. And I don’t think that’s a radical notion and I suspect that’s a kind of thing we’ll see.”

AT&T already earns $170 a month in average revenue per U-verse customer, mostly from package sales of telephone, broadband, and television service.

Television programming content continues to be a major and growing expense for AT&T, eating into profits. Weber complained programming costs are “too high” and limit AT&T from asking subscribers to pay more when rate increases are contemplated.

Instead, AT&T is increasingly playing hardball with programmers, refusing to pay growing programming costs for certain networks and dropping others that do not have many viewers.

How does AT&T know what channels its customers are watching? The company tracks viewing habits with U-verse TV set-top boxes, which automatically report back to AT&T what channels and programs customers are watching.

“Everybody is facing [profit] margin pressure as content costs go up but the question is how will customers react to higher prices as content costs go up,” Weber said. “Everybody is having to make tough decisions and we’ve been able to use that data and make very smart decisions for our customers.”

As an example, Weber noted AT&T uses real viewer numbers during contract negotiations, suggesting that lower-rated networks deserve a lower rate. If a programmer refuses, AT&T can successfully drop a little-watched network without significant customer backlash.

Weber said the numbers are even more valuable when negotiating carriage fees for expensive regional sports networks. Weber said in one city, AT&T decided to not carry a regional network because it found the majority of customers never watched many of the sports teams featured.

Comcast’s Sportsnet for Houston is not available to some U-verse subscribers because AT&T determined the audience for the sports teams on the network was too small.

“We looked at how many of our customers watched zero of those games, one, two, all the way through 150 games for baseball and 80 games for the basketball team that we’re talking about,” Weber said, noting that if a particular viewer watched 30 or more games, AT&T considered that customer a passionate viewer likely to cancel service if the channel was dropped from the lineup.

“It was very clear the viewership intensity in that particular market was low and we didn’t need to pay the rates that were being asked and we’re not,” Weber said, calling the tracking a “perfect insight” into programming costs vs. viewership value.

AT&T also made it clear if programmers went around the company to sell channels direct to consumers over the Internet, AT&T would bring significant pressure for a wholesale rate cut, which some programmers might see as a deterrent to offering online viewing alternatives.

“If they’re going to [stream their programming online], then that’s a very different conversation and a very different value for our customer,” Weber said. “That’s a choice the content providers can make. We’re totally OK with that, but exclusivity versus non-exclusivity has materially different value for our customers, and I think we would want that reflected,” he added.

Monitoring customer viewing habits also helps AT&T earn more revenue by selling targeted commercial messages to specific viewing audiences.

“If an advertiser wanted to buy The Ellen DeGeneres Show, we know based on our data who that audience is,” Weber said. “We can go find that same audience outside of Ellen and maybe extend reach or drive [the ad] price a bit [higher]. We can also go find that same audience online or on your mobile phone.”

AT&T has told more than 75 call center workers in the Triad they have three weeks to either start looking for another job or consider relocating to Birmingham, Ala. if they wish to remain employed by the telecom giant.

The holiday layoff took workers partly by surprise, but some told a local Fox affiliate they felt something was coming when they noticed AT&T stopped updating the affected workers’ training to handle customer calls.

The Communications Workers of America called the announcement devastating news for career employees and their families during the holiday season. The union is trying to get AT&T to extend the deadline to give workers more time to consider their options.

Local AT&T workers have had a tough year at the company, with difficult contract talks and technicians complaining about the company’s policy to allow customers to have AT&T U-verse installed on Christmas Day.

CWA’s Local 3902 chapter, which represents AT&T workers in the Triad, claims the company has systematically tried to drive its workers out of the middle class with benefit and pay reductions and a race to the bottom mentality cutting labor costs and demanding longer work hours for less money:

[CEO Randall] Stephensons’ philosophy is as old as time. It is a belief that he is entitled and workers are not.  It has been called “wage slavery” and worse. People rose against it. Governments that stood by it have been toppled.

In America, the people began to say no more beginning in the late 1880’s. It took the Great Depression of the 1930’s to cause our great-grandparents to finally hit the streets. CWA began to see real successes in the 1950’s. A strike that lasted 72 days in 1955 set the stage for our best days. The strike itself did not win much, but it left a scar AT&T did not soon forget. Contract negotiations after that were easier. That period lasted through 1980. In that period we won solid pensions and no-premium healthcare. By 1980 we were a solid part of the middle class and thought we would be always.

By 1981 we had begun to lose our way. Those hired during the boom of the ’70’s did not want to hear of  the prior struggles. They just happily enjoyed the hard won gains of the generation before them. They began to vote against their own interests. They began to believe that AT&T and BellSouth loved them and would always take care of them. That is the period we find ourselves in today. But we are beginning to see it for what it is.

During this period we have lost most of our pension gains. We are again paying a large part of our healthcare. Our wages are stagnant. Workers are fired almost at will. AT&T is out of control. Politically, they control the state legislatures who deregulate the industry. They run roughshod over the American worker. They contract out and off-shore at will. It has been a devastating period for CWA and for all unions.

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WGHP in Greensboro covered the sudden holiday announcement AT&T was letting go at least 75 North Carolina workers by the end of December unless they agreed to relocate to an AT&T call center in Birmingham, Ala.  (2 minutes)