Pai

Like President Donald Trump, Ajit Pai is a busy man. He’s spent his first month as FCC chairman gutting his predecessor’s legacy, reversing pro-consumer policies, ending forays into set-top box competition, fair pricing for inmate phone calls, cheap internet access for the poor, ending reviews of data caps and zero rating practices, and threatening to terminate Net Neutrality with extreme prejudice.

No wonder Bob Quinn, AT&T senior executive vice president of external & legislative affairs applauded President Trump’s appointment of Pai, proclaiming he will “quickly and decisively put back in place the commonsense regulatory framework necessary to support the President’s agenda for job creation, innovation and investment. We look forward to working with him and his team and the FCC to support President Trump’s growth agenda.”

AT&T’s only growth agenda is sending customers ever-increasing bills, and with Mr. Pai at the helm of the FCC, they are sure to get their wish.

Over their terms at the FCC under the Obama Administration, Republican Commissioners Ajit Pai and Michael O’Rielly frequently complained their minority voices on the Commission were ignored and newly proposed regulations or policies would come before the FCC so quickly, there was inadequate time for public review. But since Pai teamed up with O’Rielly to abolish many of the most important achievements of his predecessor, Chairman Thomas Wheeler, they have reportedly all but ignored the sole remaining Democrat currently serving on the Commission — Mignon Clyburn.

Last Friday, Clyburn accused Pai of hypocrisy for complaining about policies being rushed for a vote without explanation before doing the same thing himself late last week.

Clyburn

“Today is apparently ‘take out the trash day.’ In an eponymous episode of the West Wing, White House Chief of Staff Josh Lyman stated: ‘Any stories we have to give the press that we’re not wild about, we give all in a lump on Friday . . . Because no one reads the paper on Saturday,'” Clyburn said in a statement. “Today multiple Bureaus retract—without a shred of explanation—several items released under the previous administration that focus on competition, consumer protection, cybersecurity and other issues core to the FCC’s mission. In the past, then-Commissioner Pai was critical of the agency majority for not providing sufficient reasoning behind its decisions.”

Clyburn’s office asked for more than the allotted two days to review a dozen items that suddenly appeared on the FCC’s agenda.

“We were rebuffed,” Clyburn wrote.

Clyburn then accused Pai of violating the Administrative Procedure Act, which requires adequate public notice and a comment period for public input. When she asked the chairman to comply with the “reasoned decision-making requirements of the APA,” she was told ‘No deal.’

Mr. Pai’s regulatory rollback agenda has moved with breathtaking speed, according to some FCC observers. Consumer group Free Press today called Pai’s progress “Orwellian.” Over less than a month, Pai — with the help of Commissioner O’Rielly — has:

• Announced the formation of a Broadband Deployment Advisory Committee that is expected to be stacked with industry stakeholders that will recommend reform the FCC’s pole attachment rules, identify “unreasonable” regulatory barriers to broadband deployment, encourage local governments to adopt “deployment-friendly” policies, and develop a “model code” for local franchising, zoning, permitting, and rights-of-way regulations for telecom infrastructure like cell towers. Few expect the eventual “model code” to stray far from Big Telecom companies’ wish lists;
• Near-unilaterally loosened rules allowing AM radio stations to continue making their presence felt on the overcrowded FM band through the use of low-power FM “translator” stations that rebroadcast the AM station’s programming;
• Changed FCC policies to give broader notice of upcoming agenda items and policy proposals, ostensibly to improve public access to FCC rulemaking procedures. But observers suggest the change will primarily benefit industry lobbyists who will have advance detailed notice about the FCC’s upcoming agenda items, allowing them time to lobby for or against the proposals, or suggest changes;
• Rescinded “Improving the Nation’s Digital Infrastructure,” a policy paper promoting rural broadband deployment and other broadband improvements released just prior to the inauguration of President Trump. On Feb. 3, the FCC set “aside and rescinds the Digital Infrastructure Paper, and any and all guidance, determinations, recommendations, and conclusions contained therein. The Digital Infrastructure Paper will have no legal or other effect or meaning going forward.”
• Rescinded “in its entirety and effective immediately, earlier guidance provided in a March 12, 2014, public notice, DA 14-330, “Processing of Broadcast Television Applications Proposing Sharing Arrangements and Contingent Interests,” which attempted to limit ongoing media consolidation controversies including allowing one TV station to effectively operate and provide content for so-called ‘competing’ stations in a local area.
• Closed the FCC’s investigation into wireless carriers’ zero-rating policies, which allow subscribers free access to “preferred provider content” without it counting against their data plan. Critics call zero rating an end run around Net Neutrality, because providers treat their own content as “preferred.” AT&T charges other content providers to participate in its zero rating program.
• Instructed the FCC’s legal team to stop defending court challenges to its authority to ensure fair and reasonable telephone rates for incarcerated prisoners held captive to using a single carrier to make phone calls at prices much higher than what the public pays. Those rates were as high as $5.70 for a 15-minute in-state collect call placed from an incarceration facility in Kentucky. In that state alone, consumers effectively paid $2.79 million in kickbacks to state prison systems or a county jail. In contrast, a similar 15-minute call placed from a West Virginia jail or prison would cost $0.48. As a result of Pai’s actions, companies like Global Tel*Link, Securus, and Telmate “can continue the practice of price gouging prisoners and their families,” according to Prison Phone Justice;
• Ended former FCC Chairman Wheeler’s attempt to force competition in the cable set-top box marketplace, allowing consumers to take a bite out of the $20 billion cable companies make in rental fees annually. At least 99% of subscribers now pay an average of $231 a year to lease the boxes, even after the company has fully recouped their original cost. Customers in Canada can buy their own set-top boxes and DVRs.
• Killed an expansion of the FCC’s Lifeline program to offer discounted internet access to the poor. Pai reversed approvals made to nine providers — none accused of waste, fraud, or abuse — including Kajeet, Spot On, Boomerang Wireless, KonaTel, FreedomPop, Applied Research Designs, Liberty Cablevision of Puerto Rico, Northland Cable Television and Wabash Independent Networks. Pai later defended the move claiming his predecessor rushed through approval of the providers and he was rescinding those “midnight rules” as current chairman. Many Republicans are seeking a complete elimination of the Lifeline program.
• Rescinded the latest progress report on modernizing the Universal Service Fund’s E-Rate program, which is designed to subsidize telecom services for schools and libraries. It could be the first step in eliminating or dramatically reforming the Fund;
• Gave two violators of the FCC’s rules on properly collecting and reporting information about the source of political advertising aired on stations air a free pass.
• Threw out a white paper from the FCC’s own Homeland Security Bureau advising the agency on cybersecurity issues. Pai doesn’t think the FCC should be involved in cybersecurity, so anything contrary to his agenda of reducing the role of the FCC is likely destined for the nearest wastepaper basket.

FCC letter to AT&T’s Bob Quinn letting him know the company is off the hook with the FCC on zero rating.

“Ajit Pai has been on the wrong side of just about every major issue that has come before the FCC during his tenure,” said Craig Aaron, president of Free Press. “He’s never met a mega-merger he didn’t like or a public safeguard he didn’t try to undermine. He’s been an inveterate opponent of Net Neutrality, expanded broadband access for low-income families, broadband privacy, prison-phone justice, media diversity and more. If Trump really wanted an FCC chairman who’d stand up against the runaway media consolidation that he himself decried in the AT&T/Time Warner deal, Pai would have been his last choice — though corporate lobbyists across the capital are probably thrilled.”

This is part two of a multi-part series examining Time Warner Cable’s internal documents, made partly public as a result of a lawsuit filed by the New York Attorney General. You can read part one here.

In the summer of 2014, Time Warner Cable had a problem. For three years, the Federal Communications Commission had been issuing reports about the quality of broadband service from the nation’s largest internet service providers. The raw data collected by about 800 subscribers of Time Warner Cable who volunteered to participate in the project began to worry executives because it showed their broadband service was oversold in certain large cities and was no longer capable of consistently achieving advertised speeds. Even worse, the company’s congestion problems threatened to lower Time Warner Cable’s internet performance score at the FCC.

Sam Knows (but so does Time Warner Cable): The Not-So-Independent, Not-So-Confidential FCC Speed Test Program

The FCC commissioned a private company – Sam Knows – to distribute modified internet routers to gather data about the internet connections of thousands of volunteers and shared the results with the FCC to incorporate into its Measuring Broadband America program. After the FCC issued its first report in 2011, providers quickly learned the consequences of overpromising and underdelivering when Cablevision was called out for dramatically overselling its broadband service and not delivering the speeds customers paid to receive. While Cablevision executives publicly attacked the FCC speed test program as unreliable and wrong, they also quietly opened the company’s checkbook and spent millions quickly upgrading their facilities. The metric they failed to achieve was the FCC’s 80/80 test: “speed that at least 80% of the subscribers experience at least 80% of the time over peak periods.”

Here is what broadband performance on an oversold broadband service looks like. Notice Cablevision’s 2011 speed ranking plummets during peak usage periods when too many customers are sharing too little available bandwidth.

The incident embarrassed and damaged Cablevision’s reputation, and no cable operator wanted to be the next highlighted company for a public spanking by the FCC.

Time Warner Cable’s “Slow-Motion Train Wreck”

In 2013, a Time Warner Cable executive recognized the company’s practice of limiting company-financed expansion of their upstream connections with the rest of the internet would have serious implications for their own speed test scores, because customers were encountering nightly slowdowns on popular websites like YouTube caused by overcongested connections. Company executives feared customers participating in the Sam Knows/FCC program would soon reveal Time Warner Cable’s internet speeds were beginning to suffer some of the same peak usage problems Cablevision was encountering in 2011. The executive’s solution? Temporarily expand upstream connections just long enough to protect Time Warner Cable’s broadband speed scores:

“Our Sam Knows scores are like watching a slow-motion train wreck. We need to get in front of this. One thing I think we may need to be prepared to do is just give more ports to Cogent during sweeps month [when FCC results are measured for purposes of the MBA report]. We don’t have to make any promises, we just have to make it work temporarily.”

But even tricks like that failed to help Time Warner Cable’s speed scores in New York City, where serious congestion problems were obvious, even as late as last year:

The lawsuit filed by New York’s Attorney General revealed that FCC panelists in New York were getting speeds consistently well below the speeds they paid for, especially those paying for premium speeds:

FCC/Sam Knows Time Warner Cable Maxx Panelists in New York Speed Test Reports:

100Mbps subscribers received 73-87% of advertised speed (<80% advertised speed over six month period)
200Mbps subscribers received 49-58% of advertised speed (<60% advertised speed over six month period)
300Mbps subscribers received 33-52% of advertised speed (<38-74% advertised speed over six month period)

Speed test results showed consistent speed deficiencies between 2013-2016 occuring for many reasons, according to the lawsuit, including customers using outdated, company-supplied cable modems insufficient to support the customer’s speed plan, chronically oversold neighborhood groups that Time Warner Cable did not split or upgrade with additional capacity, and inadequate upstream/backbone connections to properly deliver content originating outside of Time Warner Cable’s own broadband network.

Overprovisioning Your Broadband Speed = “Putting Lipstick on a Pig”

We subscribe to 50/5Mbps service but receive closer to 62/6Mbps because Spectrum/Time Warner Cable overprovisions our service.

Instead of investing adequately in network upgrades and node splits, a July 7, 2014 internal email from Time Warner Cable’s former head of corporate strategy told senior colleagues the best way out of this dilemma was to cheat on the FCC broadband tests:

“We recommend increasing over-provisioning our modem speeds to around 20% to drive our Sam Knows scores >100% and then to market that we deliver more than promised speeds.”

In plain English, Time Warner Cable boosted the maximum allowed speed of each customer by about 20%. As a result, during non-peak usage times customers would find, for example, a plan advertising 50/5Mbps speed now delivered around 60/6Mbps. Although some customers considered overprovisioning a hidden free upgrade, Time Warner Cable’s motives were not altruistic. Because the Sam Knows testing program averages scores received from periodic testing, Time Warner Cable padded the results with higher-than-advertised speeds when their network was not congested, which compensated for the slower speeds and worse performance customers were getting during peak usage times. The lawsuit also alleges the practice helped to hide the abundance of obsolete rented cable modems still in use across Time Warner Cable’s broadband network.

The strategy worked to boost Time Warner Cable’s scores, but only as far as the FCC was concerned. Some customers were still finding their visits to YouTube, Netflix, and other websites littered with buffering problems and degraded resolution videos just about every evening. In 2013, before Time Warner Cable went ahead with its overprovisioning plan, the company’s own network engineers called the practice putting “lipstick on a pig.”

The Attorney General had its own analogy:

Using the highway analogy, Spectrum-TWC’s overprovisioning strategy amounts to allowing cars to go faster than the posted speed limit at certain times to compensate for the fact that often the highway slowed to a crawl. Boosting the average results with outlier results masked the enormous frustration for most subscribers stuck in traffic.

Breaking the FCC’s Rules

The lawsuit also alleges Time Warner Cable broke its own commitment to the FCC in the Code of Conduct it signed as a participant in the FCC’s testing program.

The FCC’s Code of Conduct required Spectrum-TWC to “at all times act in good faith” and not do anything “if the intended consequence of such act or omission is to enhance, degrade or tamper with the results of any test.” Specifically, the Code of Conduct prohibited the company from “modifying or improving services delivered to any class of subscribers” that was not “consistent with normal business practices.”

Stop the Cap! has also learned Time Warner Cable was able to identify each participant of the FCC/Sam Knows Time Warner Cable panel. This allowed the cable company to secretly verify the line quality and equipment in use by each participant, and give extra attention to those customers/volunteers to make sure service was performing as well as possible. In fact, executives instructed customer service representatives to assign FCC panelists “VIP treatment” and “best in class devices” when swapping modems, even as the company continued to supply deficient equipment to other customers who were not FCC panelists.

Still to Come: Playing games with online gamers, company officials tell the truth about bandwidth costs and Net Neutrality, and more….

In an effort to keep up with Comcast, Cox Communications has quietly expanded its internet overcharging scheme to customers in Arkansas, Connecticut, Kansas, Omaha, Neb, and Sun Valley, Ida. (perhaps the only community that can afford Cox’s threatened overlimit fees). Cox’s customers have noticed and told DSL Reports about the forthcoming highway robbery.

These unlucky customers join those in Cleveland, Oh., Florida and Georgia who have already been enduring Cox’s usage cap and penalty fee system.

Cox hasn’t shown any interest in listening to customers who do not appreciate usage allowances and have repeatedly told the company they want unlimited access, especially considering how much they already pay Cox for service.

“It’s a total ripoff and customers have no option to keep unlimited, unless they move to the next city over where Charter/Spectrum offers internet access without any data caps,” notes Cleveland resident Shelly Adams.

Cox has followed Comcast by boosting most usage allowances given to customers to 1TB, an amount many believe was set high enough to avoid threatened regulatory scrutiny of stingy data caps by the FCC under the former Obama Administration.

As with every provider that has ever conjured up an internet overcharging scheme, no matter what the allowance is, the company always claims it is generous and impacts almost nobody. Cox claims 99% of their customers will never hit the cap, which always begs the question, if it affects so few customers why spend time, money and energy creating a data cap, usage measurement tools, and billing scheme for only a handful of customers? Is that Cox’s idea of innovation?

Usage caps for one and all.

In fact, Comcast has claimed the same thing, but their math came into question when more than 13,000 Comcast customers managed to stumble their way to the FCC’s complaints bureau in one year and write a formal protest about Comcast’s own overlimit fee scheme. We are certain there are many more customers with overlimit fees on their bills than that, and guess only a small fraction took the time to write a complaint and submit it.

As Stop the Cap! has said for almost a decade, beware of cable company “generosity” because it usually comes with fine print.

“Cox High Speed Internet packages include 1 TB (1,024 GB) of data to provide you with plenty of freedom to stream, surf, download, and share,” the company writes on its support website (its much rarer Gigablast gigabit plan includes 2TB). For now, if you use Cox Wi-Fi or CableWiFi hotspots, usage on those networks does not count toward your data plan.

Cox reserves itself some extra freedoms, such as automatically charging customers who exceed their allowance a $10 overlimit penalty for each 50GB of usage they incur until the next billing cycle begins. Cox’s generosity ends with the unused portion of your allowance, which Cox keeps for itself, not allowing customers to roll over unused data to the following month.

In an effort to get customers to accept the scheme, Cox calls it a “data plan,” similar to what wireless customers might pay, and says other companies have data caps too. But none of this justifies the practice.

You’re over our arbitrary usage limit!

In another “generous” move, Cox is offering a grace period for two consecutive bill cycles before it slaps overlimit penalties on customer bills for real in Arkansas, Connecticut, Kansas, Omaha, and Sun Valley. The grace period window begins with bills dated on or after Feb. 20, 2017. To make sure you get the message, the company will bill you the overlimit fee it claims almost nobody will ever pay along with a corresponding grace period credit for two months, just to put the scare in you. After May 22, it is time to pay up.

Cox will make sure you can’t claim you “didn’t know” you ran through your allowance by harassing you with data usage messages via Cox browser alert, email, text message, or an automated outbound call when you have used about 85% and 100% of your monthly data plan. You will receive additional alerts when you have reached 125% of your monthly data plan, at which point Cox will throw a party in your honor with thanks for allowing them to run up your bill.

Coincidentally, Cox isn’t testing their scheme in markets rife with competition from providers like Verizon FiOS, where usage is effectively unlimited. In many of Cox’s usage-capped markets, customers have AT&T as their alternative, and they have a 1TB usage allowance as well.

Incoming FCC chairman Ajit Pai is on record opposing any involvement in regulating usage-based pricing schemes, claiming it amounted to government meddling in business. But customers can complain directly to Cox and threaten to cancel service. It may be a good time to renegotiate your cable bill to win discounts that may help cover any overlimit fees that do make it to your bill.

There remains little, if any justification for a company like Cox to peddle data plans with usage allowances to their customers. The company is moving towards gigabit broadband speeds but apparently lacks the resources to manage customers that want a hassle-free unlimited experience? If Cox is being honest about how few customers will ever be affected by the cap, there is no reason the company cannot continue an unlimited plan at current prices.

Cox’s scheme does shine light on the uncompetitive broadband marketplace that continues to afflict this country. As one reader pointed out, customers are constrained by the offerings of whatever provider has set up shop in a city that typically has, at best, one other choice (usually a phone company selling DSL or up to 24Mbps U-verse). A truly competitive market would give customers a wide choice of “data plans” that include unlimited plans customers enjoyed for years and want to keep. But safe in their broadband duopoly, cable companies like Cox have no incentive to treat customers to a better or even fair deal.

The real reason for usage caps and data plans with penalty pricing was exposed by Wall Street analysts like Jonathan Chaplin, a research analyst for New Street Research LLP. Although he was speaking to a cable company executive at the time, his words traveled to our ears as well:

“Our analysis suggests that broadband as a product is underpriced,” Chaplin said. “Our work suggests that cable companies have room to take up broadband pricing significantly and we believe regulators should not oppose the re-pricing (it is good for competition & investment).”

“The companies will undoubtedly have to take pay-TV pricing down to help ‘fund’ the price increase for broadband, but this is a good thing for the business,” Chaplin added. “Post re-pricing, [online video] competition would cease to be a threat and the companies would grow revenue and free cash flow at a far faster rate than they would otherwise.”

Exactly.

Verizon Communications has opened preliminary talks with officials close to Charter Communications about a possible merger of the two companies, concerning regulators worried the massive combined telecommunications company would have a near-monopoly on residential broadband service in New York and western Massachusetts.

The Wall Street Journal reports Verizon is working with advisers to study the potential transaction, and warned there is no guarantee a formal deal will materialize. A merger of Verizon and Charter would combine more than 114 million Verizon Wireless customers, 16 million landline customers, and over 6 million broadband customers with Verizon DSL or FiOS with Charter’s 21 million television, phone and broadband customers. The deal could fetch a price of more than $80 billion, no small amount for Verizon, already $100 billion in debt. An acquisition by Verizon would be a remarkable development for a cable company that became America’s second largest only eight months ago with the acquisition of Time Warner Cable and Bright House Networks.

Preliminary Talks

The newspaper reported Verizon CEO Lowell McAdam has talked with Liberty Broadband CEO Greg Maffei. Liberty has a 25% voting stake in Charter Communications, and Maffei is a close ally of John Malone, Charter’s largest single shareholder. McAdam’s back channel discussions have likely been designed to test Charter’s potential interest in a deal. For Malone and the former owners of Bright House Networks who control another 7% of Charter’s shares, making money appears to be their primary motivation and neither would likely to stand in the way of a deal.

McAdam

The newspaper was less certain about Charter’s CEO Thomas Rutledge. Rutledge is approaching his fifth anniversary as president and CEO of Charter Communications, now greatly enlarged with the combination of Time Warner Cable and Bright House. He spent the last 34 years in lesser roles at Cablevision, Time Warner Cable, and its predecessor American Television and Communications (ATC). Rutledge is reportedly interested in continuing his leadership role at Charter as it seeks to grow even larger, something unlikely to happen if Verizon acquires the cable company and rebrands it as Verizon under their own management. However, Rutledge’s personal interests will likely be secondary to the potential shareholder and executive windfall likely to come from any deal.

A Verizon/Charter Merger Would Establish a Broadband Monopoly in New York and Western Massachusetts

Verizon and Charter are the only significant direct competitors in residential broadband and landline telephone service in western Massachusetts and most of New York State, except a portion of New York City, Long Island and Westchester County (served by Altice’s Cablevision) and Rochester (served by Frontier Communications). A source at the New York Department of Public Service told Stop the Cap! this morning New York regulators would have a tough time approving a merger of this size and scope unless Verizon divested its landline and FiOS network in the state or Charter sold its cable properties in New York. A Verizon divestiture would likely attract Frontier Communications as a buyer, while a Charter sale of New York assets would probably bring bids from companies like Comcast or Altice.

“We would be very concerned about how this would impact broadband service competition and to lesser degree wireline service for New York,” the source, not authorized to speak to the media, told us this morning. “Gov. Cuomo has an ambitious agenda for broadband deployment in rural New York and this deal could also be a problem for the governor’s office. Verizon is perfectly aware of the regulatory challenges such a deal would face in Albany.”

Verizon’s Heavy Dependence on Wireless Was a Mistake

Verizon is under significant pressure to act after Wall Street punished the company for a poor fourth-quarter earnings report that illustrated the days of easy money in the wireless business seem to be over. Verizon suffered the third quarter in a row of sales declines after six years of continuous growth. Analysts point to increasing competition from T-Mobile and Sprint as the single biggest factor for Verizon’s struggles. As Verizon Wireless remained slow to cut prices and remained militant about not giving new and current customers access to unlimited data plans, customers have cut back on services or switched to other providers. Revenue dropped 4.9% in the last quarter and a growing number of Verizon’s most valuable postpaid customers are now leaving — mostly for T-Mobile and Sprint. Wireless churn reached a higher-than-expected 1.1% in the last three months.

Verizon Wireless is also having trouble attracting new customers. Analysts expected Verizon would add 726,000 customers during the last quarter, but only managed to attract 591,000. Wall Street punished Verizon’s latest financial results with a 4.4% slash in the stock price, Verizon’s worst day in more than five years.

Several Wall Street analysts have urged Verizon to diversify its business to reduce its dependency on wireless. In the last three years, Verizon has invested most of its attention and resources on bolstering its wireless network. In 2014, AT&T decided to spread its risk around with significant investments in its U-verse wireline broadband network, an acquisition of satellite-TV provider DirecTV, and its bid to buy content company Time Warner, Inc. In contrast, in 2014 Verizon spent $130 billion buying out its partner’s share of Verizon Wireless. That made UK-based Vodafone cash-rich and left Verizon mired in debt.

So far, Verizon’s diversification efforts have relied on acquiring affordable companies whose best days are long past, including AOL and Yahoo. An effort to entertain Millennials with video clips and other content over its go90 mobile app has largely been a flop, and investments in telematics and machine-to-machine wireless communications are years away from paying off, if they ever do.

Verizon May Want Charter’s Extensive Fiber Backhaul Network

Verizon executives have shown little interest in acquiring assets that rely primarily on linear/live television, which is why the company never moved to counter AT&T’s acquisition of DirecTV with an offer for its satellite competitor Dish Networks.

Verizon is very interested in fiber optics — ironic for a company that largely abandoned expanding its FiOS fiber to the home service seven years ago.

Verizon will need a lot of fiber assets to power the 5G wireless networks the company is interested in deploying. This will require a massive network of fiber-connected “small cells” that will deliver wireless services at speeds faster than today’s 4G networks. These small cells will be capable of serving individual neighborhoods or planned communities and could theoretically rely on Charter’s fiber backbone to deliver service. Without access to Charter’s network, Verizon would have to undertake to build out its own fiber network throughout its service areas.

Regulatory Climate Warms for Big Business Mergers

Although President Donald Trump has voiced his opposition to AT&T’s merger with Time Warner, Inc., his appointments to manage the day-to-day affairs of government are strident believers in deregulation and are unlikely to stand in the way of merger deals. The most likely opposition to a Verizon-Charter deal would come from state telecommunications regulators in New York and Massachusetts. On the federal level, significant opposition may be unlikely. Among the Trump appointees that would likely review a Verizon-Charter merger:

• Joshua Wright is the leading contender to head the Justice Department’s antitrust division. He’s a conservative law professor who believes regulator reviews of corporate mergers should be hands-off to a degree that has failed to withstand court scrutiny. Wright’s approach during his term as a commissioner at the Federal Trade Commission was so business-friendly, some joked his middle name should be “Laissez-Faire.” He believes mergers rarely have a bad impact on competition and prices and in fact offer consumer benefits. Courts have blocked mergers he supported and judges have criticized his standards of proof that “had no support in the law.”
• Sen. Jeff Sessions is Trump’s nominee for Attorney General. While Sessions claimed he had no problem blocking anti-competitive mergers and acquisitions, Wall Street believes the Trump Administration will not stand in the way of a frenzy of mergers. Evercore ISI’s Terry Haines made it clear what is likely to come from a Sessions-led Justice Department: “Sessions’ likely nomination and confirmation by the Senate, in which he has served since 1997, is a market positive for merger and acquisition activity. Sessions as attorney general would shift immediately from the current mostly ‘red light’ Obama antitrust/competition policy and move towards one that would be friendlier to M&A activity.”
• The Federal Communications Commission would also scrutinize the deal, but under the chairmanship of Ajit Pai and a Republican majority, any significant opposition to the deal seems unlikely. Pai has never opposed any major telecommunications merger deal on principle, although he has fought with former chairman Thomas Wheeler over the terms and conditions the FCC sought to impose in return for the agency’s approval.

Ajit Pai

Meet America’s next chairman of the Federal Communications Commission Ajit Varadaraj Pai (born January 10, 1973): a lawyer formerly representing Verizon who wants to take a “weed-wacker” to Net Neutrality, thinks data caps represent innovation, opposes almost every consumer protection measure introduced by his predecessor Thomas Wheeler, and believes the best solution to improving broadband is to take pressure off companies like Comcast, AT&T, Charter, and Verizon.

Pai has been a commissioner at the FCC since 2012 where he and his fellow Republican Michael O’Rielly have strongly opposed most of Chairman Wheeler’s pro-competition agenda and broadband reforms:

• Pai and his chief of staff Matthew Berry vocally opposed efforts by Wheeler to monitor and manage providers’ implementation of data caps and zero rating schemes that exempt provider-preferred content from usage allowances or speed throttles. Pai said Wheeler’s inquiries to carriers regarding zero rating practices showed “the era of permissonless innovation is over,” followed by a Tweet from Mr. Berry complaining that, “If you come up with an innovative service, you will be hauled into FCC to explain yourself.” In 2012, Pai decried allowing Net Neutrality to take hold because it could lead to eventual regulation of usage-based pricing policies.
• Pai fiercely opposes Net Neutrality and told an audience at the conservative Free State Foundation in December he will remove “outdated and unnecessary regulations” and “fire up the weed-wacker and remove those rules that are holding back investment, innovation, and job creation.”
• In 2015, Pai cut and pasted large sections of AT&T’s website into a dissent over the FCC’s plan to fine the phone giant $100 million for deceiving customers about its “unlimited data” plan. Pai’s statement defended AT&T’s business practices and blamed consumers for not understanding AT&T’s definition of “unlimited.”
• Pai voted against the Charter – Time Warner Cable/Bright House Networks merger not because he opposed it. He was upset that Chairman Wheeler insisted on a seven-year ban on Charter implementing data caps. “Chairman Wheeler’s order isn’t about competition, competition, competition; it’s about regulation, regulation, regulation. It’s about imposing conditions that have nothing to do with the merits of this transaction. It’s about the government micromanaging the Internet economy,” said his spokesperson.
• Pai partly dissented from the AT&T buyout of DirecTV because he didn’t like the deal’s conditions mandating affordable internet access for consumers, marketplace protections for competing online video services, and a strongly empowered compliance officer assigned to make certain AT&T met its obligations — a lesson the FCC learned after Comcast was accused of skirting its obligations in its acquisition of NBCUniversal.
• Complained Comcast’s efforts to buy Time Warner Cable would be dead on arrival ‘because the Obama administration has shown itself much less likely to approve major telecom mergers — such as the blocked AT&T-T-Mobile merger — than a Republican administration might be.’
• Opposed Wheeler’s effort to force open the set-top box marketplace to competition so consumers can buy their own cable boxes at a lower cost.
• Called Wheeler’s push to have the minimum broadband speed standard reset to 25Mbps “incoherent,” claiming that 71 percent of consumers who can already buy access at those speeds don’t want or need it and that there was no need to push wired providers to deliver faster access because Verizon and AT&T already offer 4G LTE service to 98.5% of America.

Where your next FCC complaint will likely end up.

“Ajit Pai has been on the wrong side of just about every major issue that has come before the FCC during his tenure,” noted Craig Aaron, president of Free Press. “He’s never met a mega-merger he didn’t like or a public safeguard he didn’t try to undermine. He’s been an inveterate opponent of Net Neutrality, expanded broadband access for low-income families, broadband privacy, prison-phone justice, media diversity and more.”

In contrast, Comcast was thrilled with President Trump’s appointment.

“We commend [Pai’s] tireless efforts to develop and support policies that benefit American consumers and spur greater investment and innovation in broadband technologies to connect all Americans and drive job creation,” said David Cohen, senior executive vice president and chief diversity officer at Comcast. “This is a terrific appointment for the American consumer and the companies the FCC regulates and we look forward to continuing to work with Chairman Pai in his new role.”

That may not be too surprising, considering he spent his formative years in Washington as an associate general counsel at Verizon, where he helped the company deal with pesky regulatory matters. Pai has already given the public clues about how he is likely to respond to consumer complaints about the state of American broadband.

In January 2016, Pai complained the FCC should not be responding to the whims of public interest and consumer groups that “protest a particular [provider] offering,” referring to T-Mobile’s zero rating plan, claiming the “agency is going to jump to the tune” as a result. When the FCC starts scrutinizing providers over their “highly competitive and innovate service[s],” that represents the “very definition” of regulatory uncertainty.

For Pai, the ultimate sin seems to be bothering the incumbent telecom giants, who in his view seem to know what is best for America. So he is very likely to stay out of their way.