Pai

WASHINGTON (Reuters) – The U.S. Federal Communications Commission’s chairman said Tuesday the agency does not have authority to revoke broadcast licenses, despite suggestions from President Donald Trump.

Ajit Pai, a Republican who was named chairman of the telecommunications regulator in January, broke days of silence by rejecting Trump’s tweet that the FCC could challenge the license of NBC after stories Trump declared were not true.

“Under the law, the FCC does not have the authority to revoke a license of a broadcast station based on the content,” Pai said at a forum. “The FCC under my leadership will stand for the First Amendment.”

The First Amendment of the U.S. Constitution guarantees freedom of speech and freedom of the press.

Democrats had been pushing Pai to denounce Trump’s suggestion that broadcast licenses could be threatened following reports by NBC News that his secretary of state, Rex Tillerson, had called him a “moron” after a discussion of the U.S. nuclear arsenal.

“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” Trump tweeted last Wednesday.

Trump and his supporters have repeatedly used the term “fake news” to cast doubt on media reports critical of his administration, often without providing any evidence to support their case that the reports were untrue.

Any move to challenge media companies’ licenses, however, would likely face significant hurdles.

The FCC, an independent federal agency, does not license broadcast networks, but issues them to individual broadcast stations that are renewed on a staggered basis for eight-year periods.

Comcast Corp, which owns NBC Universal, also owns 11 broadcast stations, including outlets in New York, Washington, Los Angeles, San Francisco, Boston, Dallas and Chicago.

When reviewing licenses the FCC must determine if a renewal is in the public interest. Courts have held that a station exercising its First Amendment rights is not adequate grounds to challenge a license.

The agency does not issue similar licenses for cable networks such as CNN and MSNBC, or regulate internet news or other websites.

In the early 1970s, then-President Richard Nixon and his top aides discussed using the FCC’s license renewal process as a way of punishing The Washington Post for its coverage of the Watergate burglary that ultimately brought down his presidency.

Reporting by David Shepardson; Editing by Jonathan Oatis

As Puerto Rico approaches the first month anniversary of Hurricane Maria, only small amounts of incremental progress have been made restoring the island’s telecommunications networks badly damaged by the storm.

Wireless Service

According to the Federal Communications Commission, 75.3% of Puerto Rico’s cell towers are still out of commission and many of those restored to service are functioning on generator backup, often using portable cell tower infrastructure that offers a fraction of the coverage area normal service used to provide. The majority of restored towers are in the immediate vicinity of San Juan, while many other parts of the island remain totally without service. Claro, a Mexican-owned cell company that used to offer the best coverage across Puerto Rico still remains the most reliable after the storm. All four wireless companies operating in Puerto Rico are offering free roaming to customers so as towers are restored to service, the companies can provide coverage to as many residents as possible.

Satellite Cells on Light Trucks (COLTs) have been deployed in Aguadilla, Arecibo, Cayey, Caomo Sur, Fajardo, Guayama, Manati, Mayaguez Mesa, San German, Vega Baja, and Yauco and Terrestrial Cells on Wheels (COWs)/COLTs in Humacao, Quebradillas, Rio Grande, and Utuado.

The FCC believes approximately 61% — one percent higher than last week — of the population can now get some cell signal. But that figure is slightly misleading because the largest percentage of the population lives around or in San Juan, the city with the best service restoration so far.

In contrast, most cell sites in Texas, Louisiana, Mississippi, Alabama, Georgia, and the Florida Panhandle affected by two earlier hurricanes were restored to service within two weeks. Cellular providers point out the reason for the difference is the availability of commercial power and reliable backup generators, both not widely available in Puerto Rico even now.

The U.S. Virgin Islands, also devastated by Hurricane Marie, are also struggling with repair efforts. At least 55.4% of cell towers are out of service on those Caribbean islands, with 88.9% still down on St. John, the smallest of the three islands that make up the U.S. territory. Because repair efforts have been more effective on the other two islands, about 88% of the territory can now get a cell signal.

Electricity

NBC News reported today that 17.7% of Puerto Rico now has electricity, but it is very unreliable and there are daily outages that sometimes extend for hours. The Army Corps of Engineers hopes to have in place by next week — more than a month after Hurricane Maria made landfall in Puerto Rico — two 25-megawatt generators at a plant in San Juan to help stabilize electricity there. The generators arrived Oct. 13, and a target date of Oct. 25 may be missed because of ongoing inclement weather. Once installed, the generators will extend electricity to about 30% of the island — mostly in the northeastern section around San Juan — and stabilize power for those who already have it.

The government is prioritizing electricity restoration for public safety and hospitals, public/government institutions including sewage and water treatment plants, schools, and then the island’s large pharmaceutical industry, which own several large drug manufacturing plants.

The order of priority the government is giving to service restoration is upsetting Claro, one of the island’s largest cell companies.

“Businesses and the government itself can hardly operate efficiently without an appropriate telecommunications structure,” said Claro representative Pedro Andrés. “For example, without telecommunication services the bank could not operate and that means that there would be no access to money for people, businesses could not handle electronic transactions, medical plans would not work and suppliers could not dispatch. That is, the country would be paralyzed.”

Andrés wants the power authority to make sure that electric service is restored to cell towers as soon as practical.

Residents are being told they can expect 95% electricity service restoration by Dec. 15.

Cable and Telephone

Liberty Cablevision of Puerto Rico is only working for about 1% of its customers, so it is focusing on offering free Wi-Fi hotspots for now.

Diesel generators are currently powering some of the island’s 911 service centers, which are now back up and running normally.

Cable service remains basically non-existent in Puerto Rico because of the lack of electricity. Liberty Cablevision of Puerto Rico has reported it has restored full service to about 1% of its customers, although a significantly higher number will have service back immediately after electricity is restored. Liberty promises automatic service credits for the duration of the outage and has told customers to ignore billing that was already in the mail when the storm hit. Liberty is currently focused on reaching and retaining the goodwill of its customers with a network of free Wi-Fi hotspots.

The island’s landline provider reports there are six central switching offices out of service on the island and there are problems connecting long distance calls.

Broadcast Media

The following TV stations are confirmed operational: WKAQ, WIPR, WIPN, WTIN, and WNJX, but these nine are still off the air: WAPA, WIPM, WTCV, WUJA, WELU, WECN, WRSV, WORO, and WRUA.

As of today, 44 AM radio stations are confirmed to be on-the-air: WA2XPA, WALO, WAPA, WBMJ, WBQN, WCMN, WCPR, WDEP, WENA, WEXS, WGDL, WI2XAC, WI2XSO, WI3XSO, WIAC, WIDA, WIPR, WISO, WJIT, WKAQ, WKFE, WKJB, WKUM, WKVM, WLEO, WLEY, WMDD, WMNT, WNEL, WNIK, WOIZ, WOLA, WPAB, WPPC, WPRA, WPRP, WQII, WSKN, WSOL, WTIL, WUKQ, WUNO, WVJP, and WXEW.

These 29 AM radio stations are confirmed out of service: WABA, WBSG, WBYM, WCGB, WCMA, WDNO, WEGA, WFAB, WGIT, WHOY, WIBS, WISA, WIVV, WLRP, WMIA, WMSW, WNVI, WOQI, WORA, WOSO, WQBS, WRRE, WRSJ, WRSS, WUPR, WVOZ, WYAC, WYEL, and WYKO.

There are 36 FM radio stations back on the air: WAEL-FM, WCMN-FM, WEGM, WERR, WFID, WIDA-FM, WIDI, WIOA, WIOA-FM1, WKAQ-FM, WLUZ, WMAA-LP, WMEG, WNVM, WODA, WORO, WOYE, WPRM-FM, WPUC-FM, WPUC-FM1, WQML, WRIO, WRRH, WRTU, WRXD. WTOK-FM, WUKQ-FM, WVDJ-LP. WVIS, WVJP-FM, WXLX, WXYX, WYQE, WZNT, WZNT-FM1, and WZOL.

But these 22 FM radio stations are still out of service: W227CV, WCAD, WCAD-FM2, WCRP, WELX, WFDT, WIOC, WIPR-FM, WJDZ, WMIO, WNRT, WNVE, WQBS-FM, WTPM, WVQR, WXHD, WYAS, WZAR, WZCA, WZET, WZMT, and WZOL-FM3.

The FCC is preparing to pay about 1,000 TV stations and cable operators $1 billion dollars to subsidize necessary expenses to change over-the-air channels to make room for cell phone companies.

The channel changes are a result of a now-complete spectrum auction that will reallocate part of the UHF TV dial for use by cell phone companies for wireless broadband. Part of the auction proceeds will be used to reimburse TV stations and cable operators for the expenses associated with changing channel positions and equipment needed to receive those signals.

The move will significantly compress the UHF TV dial, requiring viewers to rescan their local channel lineups in what the industry is calling a “repack” of stations to closer dial positions. When complete, the UHF TV band will shrink from channels 14-51 to 14-36. Channels 38-51 are being reallocated to the wireless industry (channel 37 remains reserved for radio astronomy use only).

Some stations will need to buy a new antenna or transmitter, others may require interim or larger facilities to manage the change. The National Association of Broadcasters complains the FCC is not allocating enough money to cover what it estimates will eventually cost TV station owners $2.139 billion. TV tower rigging crews, who climb antenna towers and perform installation and maintenance services, are booked well in advance and are charging prices consistent with the urgent need to prepare for the biggest TV transition since the switch to digital broadcasting.

Because nobody is certain exactly how much the free TV repack and transition will eventually cost, the FCC intends to partly reimburse commercial stations about 52% of their costs (62% for non-commercial stations) during the first round of funding. Another $750 million is expected to be allocated for the second round of funding to cover the rest.

The agency also intends to scrutinize receipts to make certain stations are not dipping into the fund to help pay for the forthcoming transition to ATSC 3.0 broadcasting, which will eventually make current TV sets and some station equipment functionally obsolete. TV stations can only recoup expenses directly related to the repack. The FCC suspects as repack deadlines near, TV tower rigging crews could raise prices further and take a bigger percentage of the fund than station owners may realize. If costs rise out of proportion to what is now deemed reasonable, some stations may face out-of-pocket expenses the FCC will not reimburse if the fund is exhausted.

The FCC did not account for cell companies stepping in and directly assisting TV stations to vacate their existing channel positions faster than the FCC initially planned. T-Mobile, which won a large number of licenses that cannot be used until certain TV stations make channel changes, is reaching agreements with stations directly, offering incentives to move faster. In New York City, an agreement between FOX and T-Mobile will save the FCC fund almost $80 million. FOX-owned stations WWOR and WNYW will move their transmitters from the Empire State Building to One World Trade Center, allowing them to switch channel positions and make room for T-Mobile more than a year ahead of schedule.

When the repack is complete, viewers watching over-the-air will need to rescan their televisions to find their local stations once again.

A Public Service Announcement from the FCC explains the “rescanning” process to keep or receive new digital over-the-air stations. (1 minute)

Pai

“We want to eliminate, as much as we can, government regulation of the telecommunications marketplace so as to permit present players to provide new and innovative services to consumers and likewise permit new players to come in and compete,” FCC Chairman Ajit Pai told an audience attending a speech at the Ronald Reagan Library in Simi Valley, Calif.

He was quoting and affirming words first spoken by Reagan era FCC Chairman Mark Fowler. It was a core theme in Pai’s speech, entitled “Morning in Digital America,” and it signaled Pai and his Republican colleagues would do everything possible to inspire and affirm the country’s largest telecom companies’ investments that he felt would only grow with the obliteration of rules and regulations established by his predecessor during the Obama Administration.

Pai cited the wireless industry’s transition to 5G service, quoting the CTIA — the wireless industry’s top lobbying organization, as creating “three million jobs and over $500 billion in additional economic growth over seven years.”

“The most powerful tool for expanding digital opportunity is market-based, light-touch regulation—for this maximizes private investment in high-speed networks,” Pai predicted. “That’s why we’ve sought to break down regulatory barriers to installing wireless and wireline infrastructure. Too often, government at all levels makes it hard for companies to construct next-generation networks. So we’re focused on cutting as much of this red tape as we can.”

Pai also claimed he restored the “collaborative and collegial traditions of the FCC.”

“Under my leadership, about 80% of the major items voted on at our monthly meetings have been approved with bipartisan support and without dissent, compared to less than 50% under my predecessor,” Pai claimed.

All but one of the current commissioners were in place during the second term of the Obama Administration, meaning under Pai’s predecessor, it was Republican commissioners Pai and O’Rielly that dissented the most at the time.

As the wireless industry awaits an announcement that T-Mobile and Sprint have an agreement to merge, some on Wall Street are skeptical the merger deal will win approval, especially if Republicans lose their majority in the House and Senate in the 2018 mid-term elections.

Matthew Niknam of Deutsche Bank has warned his clients any merger deal not approved by next November is more likely to fall apart if  Democrats take back control of Congress:

“There also may be greater incentive for both sides to evaluate a potential deal sooner rather than later, given the risk that deal approval may slip beyond mid-term elections in late 2018 (with the risk that more populist/less corporate-friendly sentiment may become more pervasive in D.C.) In fact, we note that the Democrats’ ‘Better Deal’ agenda (unveiled in July 2017, targeted towards 2018 elections) highlights ongoing corporate consolidation as a threat to U.S. consumers, and proposes sharper scrutiny of potential deals.”

Nikram writes there has not been a lot of interest by cable operators to acquire Softbank’s Sprint, which has been effectively up for sale or merger for at least a year.

Fierce Wireless notes Cowen & Company Equity Research last month suggested the chance of a merger between T-Mobile and Sprint was now 60-70%, down from 80-90% originally. The reason for the pessimism is their estimate that any deal’s chance of winning approval was only about 50%. The odds get even worse if the Democrats start to check the Trump Administration’s power.

Public policy groups and well-compensated industry opinion leaders are already preparing to wage a PR war over a deal that would reduce America’s major wireless carriers to just three.

Professor Daniel Lyons, well-known for writing pro-industry research reports defending almost anything on their corporate policy wish list, is hinting at a possible strategy by the merging carriers by suggesting neither could survive without a merger.

Good analysis but incomplete. This assumes #Sprint and #TMobile would both remain viable w/o merger. I’m not convinced (either way yet). https://t.co/8WaZ2b8iJT

— Daniel Lyons (@ProfDanielLyons) October 10, 2017

Most analysts predict that with just three national wireless carriers, the U.S. wireless marketplace would more closely resemble Canada — widely seen as more carrier-friendly and expensive.

Wall Street analysts are debating exactly how many tens of thousands of jobs will be lost in a merger, and the numbers are staggering.

Jonathan Chaplin of New Street Research predicts the merger would cost the country more jobs than now exist at Sprint.

He predicts “approximately 30,000 American jobs” will be permanently lost in a merger. Together the two companies currently employ 78,000 — 28,000 at Sprint and 50,000 at T-Mobile.

Craig Moffett of MoffettNathanson Research was more conservative, predicting 20,000 job losses would come from a merger. But the impact would not be limited to just direct hire employees.

“We conservatively estimate that a total of 3,000 of Sprint and T-Mobile’s branded stores (or branded-equivalent stores) would eventually close,” Moffett’s report said.

Golden parachutes will make some executives at Sprint and T-Mobile very wealthy if a merger succeeds.

Many T-Mobile and Sprint stores are located in malls and retail “power centers” where maintaining both stores would be unnecessary. Also hard hit would be wireless tower owners and those employed to care for them. Most believe Sprint’s CDMA wireless network would eventually be decommissioned in a merger, and many of its cell sites would be mothballed. Sprint’s biggest asset is its currently unused trove of high frequency wireless spectrum it could use to deploy future 5G services, but those services would likely be provided from small cells mounted on utility poles and street lights.

The biggest winners in any deal will likely be top executives at Softbank, Sprint, and T-Mobile, Wall Street banks providing deal advisory services and financing, and shareholders, who can expect higher earnings from a less competitive marketplace. Fierce competition from T-Mobile and Sprint were both directly implicated for threatening revenues for all four wireless companies, who have had to respond to aggressive promotions by cutting prices and offering more services for less money.

The Trump Administration’s choices of Ajit Pai for Chairman of the FCC and Makan Delrahim as United States Assistant Attorney General for the Antitrust Division of the Justice Department are both widely seen as signals the White House is not going to crack down on competition-threatening merger deals. Mr. Pai has recently improved the foundation for a T-Mobile/Sprint merger by declaring the wireless industry to be suitably competitive, something required before seriously contemplating reducing the number of competitors.

Eight Democrats sent a letter to the FCC chairman last week calling on both the FCC and the Justice Department to begin an investigation into the possible merger as soon as possible, citing possible antitrust concerns.

The text of the letter:

Dear Chairman Pai and Assistant Attorney General Delrahim:

We write to ask you to begin investigating the impact of a merger between T-Mobile International and Sprint Corporation. According to Pew Research, over three-quarters of Americans now own smartphones, driven by a 12 percent increase in smartphone ownership among adults over age 65 and a 12 percent increase in smartphone ownership in households earning less than $30,000 a year since 2015. Today, smartphones are not really just phones at all. For many, they are the primary connection to the internet. An anticompetitive acquisition would increase prices, burdening American consumers, many of whom are struggling to make ends meet, or forcing them to forego their internet connection altogether. Neither outcome is acceptable.

We believe that an investigation is appropriate for three reasons. First, aggressive antitrust enforcement benefits consumers and competition in the wireless market. Second, a combination of T-Mobile and Sprint would raise significant antitrust issues and could dramatically harm consumers. Third, although a deal has not been announced, the two parties have made repeated attempts to merge, and current reports suggest they are close to an agreement. Your agencies should be in a position to fully – but expeditiously – investigate and analyze this deal should it occur.

Competition among wireless carriers has lowered prices, increased quality, and driven innovation

Consumers have benefited from competition among the four national carriers, and we have effective antitrust enforcement to thank for that competition. In the summer of 2011, the Department of Justice’s (DOJ) Antitrust Division filed suit to block AT&T’s proposed acquisition of T-Mobile despite claims that T-Mobile was a weak competitor and, without the deal, remaining options “won’t be pretty.”  The FCC likewise outlined its opposition to the deal that fall. The deal collapsed, but T-Mobile did not. It competed. It spent billions improving its network, and it offered better terms; for example, it eliminated two-year contracts and data overages. It enticed customers to switch providers by paying their termination fees. And, its competitors had to respond in kind. As William Baer, former head of DOJ’s Antitrust Division, has explained, consumers have enjoyed “much more favorable competitive conditions” since that transaction was blocked.  In May 2017, the Wall Street Journal reported that cellphone plan prices were down 12.9 percent since April 2016, the largest decline in 16 years, and attributed the drop to “intense competition” among the top cell service providers: Verizon, Sprint, T-Mobile, and AT&T.  Paul Ashworth, chief U.S. economist at Capital Economics, specifically suggested that it was caused by the “price war that has broken out among cell-phone service providers, with all the big providers now offering unlimited data plans at cheaper rates.”

Further, the fact that T-Mobile and Sprint appear to be each other’s primary competitor raises additional concerns about this potential horizontal merger. That direct competition has particularly benefited lower-income families and communities of color, many of whom rely on mobile broadband as their primary or only internet connection.  Sprint and T-Mobile have offered products and service options that are more appealing to lower-income consumers. For example, T-Mobile was the first major carrier to offer a no contract plan,  and both Sprint and T-Mobile have been leaders in offering prepaid and no credit check plans, which allow people who may have poor credit to obtain a cell plan and ultimately access the internet.

A combination of T-Mobile and Sprint would raise significant antitrust concerns

Not surprisingly, when T-Mobile and Sprint first discussed a merger in 2014, both of your predecessors expressed skepticism. William Baer stated that “[I]t’s going to be hard for someone to make a persuasive case that reducing four firms to three is actually going to improve competition for the benefit of American consumers.”  Similarly, former FCC Chairman Tom Wheeler simply explained, “[f]our national wireless providers are good for American consumers.”

What is surprising, however, is that a few years later the two companies have revived their merger talks. Whether one looks at cellphone competition as a national market or as numerous local markets, T-Mobile’s acquisition of Sprint would very likely be presumptively anticompetitive. We are concerned that this consolidation would increase prices, reduce incentives to offer new plans, and allow the remaining carriers to curtail their investment in their networks. Further, given both companies’ focus on competing for lower-income customers, the combination of Sprint and T-Mobile could disproportionately harm those consumers. In addition to potentially raising retail prices, the remaining carriers are also likely to increase prices to companies like Straight Talk, which buys bulk access to one or more of the four national carriers and advertises almost exclusively to lower-income communities.

T-Mobile and Sprint will no doubt claim that the merger will leave sufficient competition, increase cost savings, and spur investment. The agencies will need to examine these issues in depth and make the ultimate determination as to whether the effect of such a deal would be to undermine or promote competition. The very complexity of the issues only further justifies the need for the agencies to begin examining the markets and investigating the competitive dynamics sooner rather than later.

Initiating an investigation is appropriate

Although the antitrust agencies often wait for an official filing before opening an investigation, nothing requires this delay. For example, in May, the Antitrust Division announced an investigation of the possible acquisition of the Chicago Sun-Times by the owner of the Chicago Tribune.  The two companies in question here have had a longstanding interest in combining, and, according to reports, an agreement between Sprint and T-Mobile may be weeks away.

Beginning an investigation into a merger of T-Mobile and Sprint now will allow your agencies to quickly, but fully, review the agreement if it is announced. Indeed, multiple news sources are reporting that the two parties are close to a deal in principle. The likelihood of the transaction occurring combined with the serious issues that it raises provide compelling reason for DOJ and the Federal Communication Commission to begin investigating the potential transaction.

For the reasons stated above, we urge you to begin to examine this potential transaction now. Competition among four major cell phone carriers has benefited consumers with lower prices, better service, and more innovation. We are concerned that consolidation will thwart those goals. Thank you for your prompt attention to this matter.

Sincerely,

Amy Klobuchar (D-Minn.)
Al Franken (D-Minn.)
Patrick Leahy (D-Vt.)
Richard Blumenthal (D-Conn.)
Ron Wyden (D-Ore.)
Kirsten Gillibrand (D-N.Y.)
Ed Markey (D-Mass.)
Jeff Merkley (D-Ore.)