Staffers at the New York State Department of Public Service have recommended the Public Service Commission reject the merger of Charter Communications and Time Warner Cable unless significant concessions are made, largely because the alleged benefits are insufficient for New York cable customers.

Although cable operators are largely deregulated under federal law, state and local governments retain control over cable franchise agreements, which permit operators to sell cable television programming. To complete its merger, Charter Communications must win approval to transfer Time Warner Cable franchise agreements to the merged entity, dubbed “New Charter.” That gives state regulators leverage to win concessions and oversight mostly eliminated after the cable industry was deregulated by the federal government.

New York law requires cable operators seeking to join forces to prove the merger is in the public interest and that ratepayers will obtain a “net positive benefit” from the merger. In plain English, Charter must share the benefits of the merger with cable customers in New York, either from lower prices, better service, or both. Charter proposes to offer those benefits in the form of improved service:

• Additional investments in all-digital systems in Time Warner’s service areas by completing digitization within 30 months of the close of the proposed transaction. This would include faster (60 megabits per second (Mbps) minimum) broadband speed offerings;
• Merger-specific efficiencies, which would generate savings in a number of areas including combined purchasing power, overhead, product development, engineering, and information technology;
• Merging Charter’s New York assets, now isolated from the rest of its service territories, to create efficiencies through reduced costs, improved customer service and additional service offerings;
• Bringing overseas Time Warner jobs back to the United States and adding in-house positions;
• Expanding to New York, within three years of the close of the proposed transaction, Bright House Networks’ low-income broadband option (Connect2Compete) which partners with schools to provide a $9.95 low-cost Internet service, discounts on Internet-capable devices, and innovative digital literacy training;
• Promoting the deployment of advanced voice services and enhancing competition in the voice marketplace by creating a more robust competitor;
• Pledging not to block or throttle Internet traffic or engage in paid prioritization, whether or not the Federal Communications Commission’s (FCC) Open Internet Order is upheld. This commitment would continue for three years, without regard to the outcome of the ongoing litigation challenging federal reclassification.

The Public Service Commission staff looked at the reported annual “synergy savings” of $800 million anticipated by New Charter from streamlining operations and winning enhanced volume discounts to determine the “net positive benefit” for New York consumers from the merger. Here is the formula the PSC used:

• New York customers represent 10.879% of New Charter’s customer base — 2.6 million of New Charter’s 23,900,000 combined Charter and Time Warner Cable customers;
• The agency presumes customers and shareholders nationwide should each receive 50% of the $800 million in savings;
• Knowing New York deserves roughly 11% of that $800 million, divided equally between customers and shareholders, New Charter owes New Yorkers $43.5 million in benefits annually.

Staffers at the PSC prefer to deal in hard numbers and solid commitments when determining how New Charter intends to meet its obligation to New Yorkers, and all signs indicate the cable company was less than forthcoming. In colloquial terms, New Charter’s response to the PSC’s math can be summed up, ‘Whatever, you can trust us to work out the details after the merger.’

Alleged Deal “Benefits”

New Charter’s promises to invest more capital in New York than Time Warner Cable came with no specific investment commitments, despite repeated efforts to pin New Charter down on its spending plans. Some of the details about New Charter’s spending proposals are redacted in the document, but it isn’t difficult to discern reading between the lines New Charter has no plans to continue Time Warner Cable’s Maxx upgrade program beyond commitments already made, which in New York is limited to New York City, leaving all of upstate New York off the Maxx upgrade list. PSC staffers believe if Time Warner Cable remained independent, some or all of upstate New York would receive those Maxx upgrades in the near future.

New Charter claims another merger benefit is their plan to upgrade Time Warner customers with new and improved IP-capable ‘Worldbox’ equipment and DVR’s offering more recording capacity. While conceding there were some minor benefits from offering customers more capable equipment, PSC staffers were skeptical New Charter’s plan represented much of a “consumer benefit,” because the equipment is not cheap and New Charter’s plan to eliminate analog television signals will mean every customer will have to rent one of Charter’s new boxes or a near equivalent.

New Charter’s promises of faster Internet speeds and upgraded cable systems would normally be seen as a direct consumer benefit, except Time Warner Cable already committed to its own Maxx upgrade effort that often outperforms what New Charter is promising. “Digitalization and associated speed increases can only truly be considered a benefit if [New Charter] can adequately demonstrate that Time Warner would not have otherwise completed a similar transition to an all digital, faster network in a similar timeframe [roughly 30 months],” PSC staffers concluded.

New Charter’s promise to expand low-income Internet access to Time Warner Cable customers, utilizing Bright House Networks’ Connect2Compete program, comes with many of the same restrictions Comcast’s own Internet Essentials program include. That issue was hotly debated during Comcast’s attempt to acquire Time Warner Cable, and many public interest groups opposed the merger for that reason. New Charter has also made no commitments to continue Time Warner’s no-restriction/no-contract/no-prequalification affordable $14.99 Internet service. In fact, the merger may worsen the affordable Internet problem, not improve it.

New Charter’s proposed expansion of Time Warner Cable’s Wi-Fi hotspot program is vague and mostly undefined beyond a general commitment to deploy at least 300,000 new out-of-home Wi-Fi access points across its national footprint within four years. New York regulators want to know how many of those would be in New York. Using the same formula to find how many New Charter customers are located in New York, it seems reasonable that redacted sections regarding the Wi-Fi hotspot program included an inquiry if New Charter planned at least 30,000 new access points for New York. New Charter did mention that once the proposed transaction is complete, it expected to evaluate the merits of leveraging in-home routers as public Wi-Fi access points, much like Comcast is doing today. Because Time Warner Cable has no firm plans about its Wi-Fi hotspot deployment program beyond this year, PSC staffers found it difficult to determine which company had the better Wi-Fi proposal for New Yorkers.

New Charter’s plans for expanded business broadband were also found to be vague, making it difficult to measure how much benefit New Charter would bring commercial clients in New York.

Status Quo

Time Warner cable systems will become indirect, wholly owned subsidiaries of New Charter. New Charter states that they are not seeking authority for the transfer of customers or for any changes in rates, terms or conditions of service and New Charter will also continue to provide Lifeline Discounted Telephone Service (Lifeline).

The PSC expects that customers will keep the same digital phone number they had with Time Warner; will have the same billing account information; and, other technology will continue to work seamlessly. In other words, the transaction should be technologically transparent for consumers.

The regulator also acknowledges that, after the proposed transaction, there should be no diminution in the number of service provider options available to consumers in the video market because Charter and Time Warner do not have overlapping service areas in New York. Since the potential for direct competition no longer exists, this assertion is in no way a benefit of the proposed transaction, it simply maintains the status quo.

The Bad and the Ugly

Despite claims from both cable companies there will be no negative impact as a result of the proposed transaction, PSC staff identified a number of serious issues that are likely to result if the merger is approved without any enforceable conditions or commitments:

Charter will be among America’s top junk bond issuers. (Image: Bloomberg News)

New Charter intends to load itself with massive debt to pay for the merger. As a result, the combined company’s credit rating will take a significant hit. PSC staffers fear New Charter will be vulnerable if economic conditions decline, even to the point of default or bankruptcy. But before that happens, New Charter’s need to cope with its debt could result in reduced investment in system upgrades.

“If the operating environment declines for cable companies […] New Charter will have more difficulty maintaining the investments necessary to bring expanded products and provide good service quality to its customers and, thus, this represents the single most substantial risk of the proposed transaction,” the PSC staff warns. “Accordingly, the Commission should seek to mitigate this risk and ensure that New York receives net benefits that are sufficient to offset this and the other potential harms.”

After requesting Charter disclose its often hidden regular, non-promotional prices most cable customers eventually pay, the PSC discovered contrary to Charter’s claims its prices are lower than Time Warner Cable, in fact they are often higher. Time Warner Cable customers typically also receive more cable television channels for their dollar than Charter customers do. Consumers who bundled multiple services together got the best savings, but even those deals were priced comparably to what Time Warner Cable charges. In short, promises of savings are illusory.

Time Warner Cable offers $14.99 to anyone without paperwork. Charter does not.

Broadband customers will also lose less-expensive broadband options they receive from Time Warner Cable. New Charter will drop Time Warner’s $14.99 “Everyday Low Price” 2Mbps Internet package, along with its Basic 3Mbps ($29.99) and Standard 15Mbps ($34.99) plans. New Charter’s least expensive broadband option for all consumers will be its Spectrum Internet 60Mbps plan, which carries an initial promotional price of $39.99 a month and a regular price just under $60.

“Time Warner’s lower priced offerings represent choices for New York consumers,” PSC staff concluded. “Any loss of these services would likely result in consumers paying more to ensure they have access to the same level of high-speed Internet service and its important resources.”

Jobs: New York is at risk of losing Time Warner Cable’s five call centers employing about 1,996 staff, 61 retail/walk-in centers employing 2,674 staff, nine corporate offices employing around 1,257 staff, nine service/maintenance locations employing approximately 1,687 staff, two media offices employing 435 staff, and 11 other service related functions employing about 1,003 staff, with total employment in the state of nearly 9,052.

PSC staffers have only received a commitment New Charter will not reduce the number of “customer facing” jobs in New York, but has said nothing about where the rest of its New York employees might be heading.

“There is a real danger that New Charter will look to gain operational efficiencies by moving/consolidating customer-facing jobs and other positions to out-of-state locations, despite any claims to the contrary,” the PSC staff reports. “Out-of-state service centers would make it difficult for it to maintain its current level of customer service. Longer wait times and lack of local knowledge could lead to increased frustration and dissatisfaction on the part of New York customers, and a significant decline in the overall level of service provided.”

What New York Regulators May Demand from New Charter to Approve a Merger

The PSC wants Charter to develop gigabit broadband for New York’s top-five cities.

When the PSC staffers added everything up it found the proposed merger offered little benefit to New Yorkers and would not result in a net positive benefit for New York. The staff recommended the merger be denied unless specific commitments are made to sweeten the deal for New York customers.

First, New Charter should be required to develop a strategic implementation plan to build-out its all-digital network to every remaining unserved or underserved Charter and Time Warner franchise area in New York. This would mean that any resident in a town serviced by either cable company would be able to buy service even if the company does not now offer it. Currently, areas considered unprofitable to serve within a franchise area are often bypassed. This would no longer be permitted, and New Charter would have to wire any commercial building, business, school, or home.

Second, Charter’s record of performance in New York is already less than impressive. In Columbia County, Charter operates an ancient one-way video service-only cable system serving Chatham, N.Y. The PSC staff recommends Charter be required to bring that cable system up to date. More broadly, the staff recommends Charter be forced to spend more money on system upgrades and improved service than Time Warner Cable would have on its own.

Third, qualifications to subscribe to Charter’s proposed $9.95 discount Internet program should be broadened to exclude fewer customers. Its speed should also be raised to at least 10Mbps. For everyone else not qualified to subscribe to Connect2Compete, the PSC staff recommends requiring New Charter to continue offering Time Warner’s Everyday Low Price $14.99 Internet tier at an enhanced speed of 3Mbps for a minimum of five years.

Fourth, Time Warner customers in New York should be granted promotional broadband pricing without modem fees for a minimum of three years, making New Charter’s ongoing price of its 60Mbps tier $39.99 a month, not the $59.99 a month Charter typically charges after one year.

Fifth, New Charter should be required to offer broadband service at speeds up to 100Mbps throughout its New York footprint within 30 months of the close of the proposed merger. New Charter should also be compelled to install infrastructure capable of offering 1,000Mbps (1Gbps) service in New York City, Buffalo, Rochester, Syracuse and Albany by 2020.

Six, New York should require New Charter to change its current merger proposal to decrease leveraged debt and present a plan to restore the company’s credit rating to a level more comparable with Time Warner Cable.

Seven, New Charter should submit to oversight of its customer service performance by New York regulators, which will monitor how New Charter treats its customers. If the company falls below acceptable service standards, the PSC will have the authority to intervene based on an agreement with New Charter.

Finally, New Charter will agree to limit any significant changes to its New York call center or other customer-facing positions for at least two years and provide 90 days notice of any significant job relocations or reductions.

Time Warner Cable is nearing the end of its $60 million “Maxx” upgrade of San Antonio, company officials said in a news release.

The Maxx upgrade most noticeably boosts broadband speeds up to six times faster than what customers used to receive, at no change in price, up to 300/20Mbps.

Time Warner Cable Maxx Broadband Speed Comparison

Earthlink customers will also get a speed boost.  The traditional EarthLink Broadband plan will become EarthLink Extreme with speed up to 50/5Mbps. EarthLink Cable Max will become EarthLink Ultimate with speed up to 100/10Mbps. Customers who want faster Internet will have to switch back to Time Warner Cable to upgrade above 100Mbps.

As part of the upgrade, Time Warner has converted its analog television signals to all-digital service. Free digital adapters are available to customers until Dec. 28, 2016. After that, each adapter will cost $2.75 a month.

Residents of one of the world’s most isolated countries will soon have the option of getting fiber-to-the-home service that will offer faster Internet access than most Americans get with traditional DSL from their phone company.

Thailand’s Benchachinda Holding Company has partnered with four other technology companies to launch Myanmar Information Highway Limited (MIH), with the goal of wiring fiber-to-the-home service to every home and business that wants service in Yangon and other major economic cities. It’s a remarkable investment for a country that had until recently been run by a military dictatorship for more than 50 years and is still liberalizing its economy and implementing democratic reforms.

Benchachinda’s president, Vichai Bencharongkul, said the group’s investment in international businesses in Myanmar is the first of a few foreign investments in other nations. Bencharongkul told the Thai press fiber broadband sells itself and investment in Myanmar would make good business sense.

Bencharongkul

He can point to the fact MIH was able to quickly get permission to lay fiber-optic cable from Yangon Electricity Supply Corporation, the country’s dominant electric utility. Myanmar’s bureaucracy can prove daunting to doing business in the country, but the promise of faster broadband overcame those concerns.

Internet access in Myanmar, better known internationally as Burma, has traditionally been a frustrating experience. Despite some fiber Internet rollouts by state-owned Myanma Posts & Telecommunications (MPT), offering up to 100Mbps, the average upper income Myanmar household still relies on DSL service and gets only up to 6Mbps speed. The country is ranked 159 out of 198 by Net Index for consumer download speed, averaging just 5Mbps. Fiber optic broadband will change that.

In a cost-saving measure, MIH will launch service with speeds averaging 20Mbps — four times faster than the current average speed in the country — and raise speeds and capacity going forward. They intend to deliver stiff competition to both Yatanarpon Teleport (YTP) and the state telephone company, which charges almost $65 a month for a basic DSL line. MPT charges $1,200 a month for 20Mbps fiber broadband and focuses on business customers. MIH is expected to charge lower prices for service and will rely on its own network instead of the one owned and controlled by the state-owned telephone company.

If Windstream was hoping to make a splash with its new Kinetic IPTV service, Time Warner Cable certainly isn’t reaching for a towel.

Kinetic debuted in April in Lincoln, Neb., the first community to get Windstream’s fiber to the neighborhood TV service. Three months after being introduced, it’s available in about half of the city. But it is not proving much of a threat to incumbent Time Warner Cable because Windstream set rates roughly the same or higher than what the cable company charges.

In fact, a Stop the Cap! reader contemplating a trial run of Kinetic was quickly dissuaded when he learned Windstream charged $10 more than what he already paid Time Warner Cable.

“Windstream either does not understand Time Warner’s pricing or is artificially trying to limit demand for the moment,” our reader tells us. “I have to believe it is one or the other because the alternative is they don’t know what they are doing and are creating an experiment built to fail. When I told Time Warner I was toying with the idea of trying Kinetic, they cut my bill another $30 a month and Kinetic is now dead to me.”

Time Warner Cable’s customer retention department is well positioned to keep customers because it can sell faster Internet speeds at a lower price than Windstream has offered so far. The phone company obviously has no interest in starting a price war in Lincoln:

• Windstream Kinetic offers packages ranging from $39.99-$129.98/mo;
• Time Warner Cable offers packages ranging from $19.99-$129.99/mo.

The Lincoln Journal Star reports other customers have had similar experiences.

Ryan Pryor said he inquired about Kinetic, but the price quoted was slightly more than what he now pays for a similar bundle with Time Warner and would have offered a slower Internet speed. So he chose to stick with what he has.

Where Windstream has had some success is attracting current satellite customers. Jason Smith was tired of losing satellite service during storms and since he was already a Windstream DSL customer, upgrading to Kinetic made sense.

“The picture quality has been very impressive,” Smith told the newspaper. “The one thing I noticed was how much better the picture looked than on DirecTV with the same HDMI connection to my TV.”

Smith is also happy with a more capable whole house DVR and the fact Windstream offers wireless set-top boxes.

But Smith also admitted he wasn’t sure if we would stick with the service long-term. A significant disadvantage of Kinetic is its reliance on copper wiring part of the way between Smith’s home and Windstream’s central office. All fiber to the neighborhood projects have bandwidth limitations that would not exist with a straight fiber to the home upgrade. Kinetic’s limits become clear when trying to watch three HD signals at once while being on the Internet. He can’t. Kinetic limits customers to two HD video streams at a time, compared with DirecTV’s five. Broadband speeds slow if other members of the household are also accessing telephone and television services.

With competition like that, Time Warner Cable has done little to strengthen its position, with no immediate plans to upgrade service in the city. All that has changed recently is a channel realignment that groups like-channels together starting at channel 100. Time Warner began that nationwide channel realignment in Syracuse, N.Y., in the spring of 2013. More than two years later, that change is only now reaching Lincoln.

Bryan Brooks, the Windstream vice president of business development, did not offer the newspaper many specifics about how Kinetic was performing, except to say demand has met expectations.

“I thought I was watching Comedy Central,” said Ralph Wilson, a longtime Charter customer in suburban Los Angeles. He was actually watching a Bloomberg News interview with the CEO of Charter Communications regarding yesterday’s formal merger announcement. “What cable company was Thomas Rutledge talking about when he said Charter would bring better service to Time Warner and Bright House? Charter blows.”

Wilson is just one of several unimpressed Charter customers responding to the news their cable company is about to grow more than four times larger with the acquisition of the larger Time Warner Cable and the smaller Bright House Networks.

“They promise you 60Mbps and you are lucky to see 40Mbps unless it is raining,” said Aaron Peters, a Charter customer in Texas. “Then you are lucky if you get anything. You sure won’t get anyone on their support line.”

“I’d rather have my fingernails pulled out than have to deal with Charter,” writes Betty, a 74-year old Stop the Cap! reader in Wyoming. “I’ve had cable out sometimes for five days and when the last time it was out, the slobs that showed up to fix it were shabbily dressed and one had his zipper down. It’s disgraceful.”

“Maybe it will go from F-minus to an F,” Terence Allen of Atlanta told the New York Times. Allen, among others, recited a litany of service problems familiar to many Charter customers around the country: Screen freeze and pixelation, unresponsive remote controls, uneven broadband speeds, slurring and skipping over dialogue, and problems getting a real person on the phone.

For Time Warner Cable customers in particular, it is unlikely that prayers for better service from a new owner are going to be answered.

“‘Not quite as bad’ may be about as good as they can get with this deal,” reflected the Times.

“Charter is not going to revolutionize Time Warner’s service quality, because Charter’s service quality is not that much better,” said Mark Cooper, director of research at the Consumer Federation of America.

Pay for 60Mbps, get 40ish instead.

One of the key arguments in favor of the merger is that long-suffering Time Warner Cable customers will finally get faster Internet speeds. Time Warner Cable Maxx upgrades, now likely to be shelved by Charter, were already outperforming several of Charter’s own speed commitments. Charter’s theme pushing faster speeds for one and all might appeal to the broad masses of Time Warner Cable customers yet to be upgraded.

“Except what Charter advertises is often not what they actually deliver,” complains Wilson. “They tell you it’s 60Mbps, but here in LA it is often closer to 40Mbps and when you complain, they claim they don’t guarantee speeds.”

Allen in Atlanta also signed up for faster speeds from Charter, but never got them.

“Their high end doesn’t seem to be very high-end,” Allen said.

He also called Charter to complain but never got to speak a customer service agent. Instead, an automated attendant instructed him to unplug his modem to reset it, to no avail.

“Getting a human on Charter’s customer service line to help you with a problem is a laugh,” said Sue Turner, a Charter customer in Montana. “They keep telling us Charter is better than the last three owners of our cable system because their repair service calls are way down. Well of course if you cannot actually reach anyone to schedule a service call, that works too.”

Turner has seen three cable companies come and go in her part of Montana since April 2002. Comcast sold many of its cable systems in the sparsely populated states of the Rockies to Bresnan Communications that year. Cablevision acquired Bresnan in 2010 and rebranded her cable system Optimum West. Just three years later, Cablevision sold all of its interests outside of the northeastern U.S. to Charter Communications, which runs things today.

“Badly,” Turner said. “The biggest problem is the weather which always affects our television and Internet service. Charter has been here six times in two years to try to fix things, but the only realistic way to get service is to go down to the cable office and demand they do something. You don’t get help on the phone.”

“I would say my impression overall of Charter is that they talk very well about their services and their breadth and depth, but quite honestly they don’t deliver very well,” Mr. Allen told the newspaper. “One of the things they push quite a bit is the bundle — telephone, Internet and cable. I would never even consider getting the telephone because their cable and Internet can be so dodgy.”

The Better Business Bureau in St. Louis, which tracks complaints about Charter, found at least 5,183 unsatisfied customers over the last three years willing to escalate matters to them. Most are about problems with Charter service, which would seem to show there is a problem.

Nonsense, counters Alex Dudley, one of Charter’s senior spokesmen.

“Charter takes our customer service very seriously,” Dudley said. “There are millions of Charter customers who are satisfied with our products.”

Shaneice Johnson in Connecticut isn’t one of them.

“Oh my God I thought Frontier was awful when they took over AT&T here,” she tells Stop the Cap! “But then when we switched to Charter my modem has dropped weekly and all I get is attitude from customer service about how they know how the Internet is supposed to be run and it must be my fault. Years of good service with AT&T with no problems but now it must be my fault because their service is off up and down the street? I don’t think so. We need to get some competition in here.”

On that point, many would agree.

“If Charter had Google Fiber here chasing them, I guarantee they would clean up their act, but when their only competition is AT&T DSL, they just don’t care,” said Wilson.