Conditions recommended by Stop the Cap! to protect New York consumers after a merger of Charter Communications and Time Warner Cable are expected to cost the two cable companies almost one billion dollars and will guarantee statewide adoption of Time Warner Cable’s Maxx upgrade, guaranteeing all customers receive speed upgrades ranging from 60-300Mbps.

On Friday, the N.Y. Public Service Commission announced its conditional approval of the merger transaction, but only if Charter agrees to a series of wide-ranging conditions to guarantee that New York customers receive tangible benefits as a result of the merger:

The Commission agrees that in order for the proposed merger to be in the public interest, the Petitioners must agree to make concrete and enforceable commitments to modernize their cable system and services, expand access, address the digital divide and improve customer service. To this end, we find that with the acceptance by the Petitioners of the enforceable conditions, as discussed in the body of this Order and Appendix A, the proposed merger is in the public interest. These conditions are designed to help ensure a near ubiquitous world-class communications network that meets the needs of all New Yorkers. Absent acceptance of these conditions, the public interest standard cannot be met, and the petition for transaction approval is denied.

Stop the Cap! was quoted and footnoted extensively in the PSC order. We provided the PSC with insight beyond the public relations machine of Charter and Time Warner Cable. We exposed the fact Charter’s promised service improvements were actually more modest than what Time Warner Cable has undertaken on its own through its Maxx upgrade program. We educated regulators about the inadequacy of Charter’s initial commitment to offer low-cost Internet access for low-income families. We questioned the consumer benefits of certain upgrades that could actually increase costs for consumers because of additional equipment fees. We alerted the PSC that Charter would discontinue Time Warner’s affordable $14.99 Internet offer. We strongly recommended the PSC consider making rural broadband expansion a part of this transaction. We also sought additional protections from any future compulsory usage caps or usage-based billing.

Although Stop the Cap! was opposed to the transaction from the outset, doubting it was in the public interest, we recognized the chances for approval were greater than the Comcast-TWC merger that was eventually withdrawn. Therefore, we made it a priority to outline multiple conditions we felt should be imposed on Charter if the deal was to be approved.

Our constituency is ordinary consumers and ratepayers. Too often these kinds of mergers are approved with token conditions that only benefit minority or special interests, favored non-profit or government entities, or those with vested business interests (programmers, equipment manufacturers, etc.) It was important to us that any approval bring something beyond free Internet service for schools or community centers, agreements to continue carrying certain cable networks, or a temporary discount or low value coupon that ends up in the mailboxes of customers a year or two from now.

We know what Time Warner Cable customers in New York want: better service, faster speeds, no data caps, no gotcha fees, affordable Internet options, and job protection.

It appears New York regulators understand that as well and intend to force Charter to offer customers a better deal.

Despite publicly saying little about the merger, just a few hours after the PSC’s decision, Gov. Andrew Cuomo’s office issued a press release taking credit for the merger conditions and unveiling the “tenth signature proposal of his 2016 agenda: dramatically expanding and improving access to high-speed Internet in communities statewide.” Once again, the governor will try to entice providers like Time Warner Cable, Frontier Communications, and Verizon to expand rural broadband in New York using public dollars.

Although lacking a catchy title, the “New New York Broadband Program” includes a $500 million solicitation for private sector partners to subsidize rural broadband expansion with state dollars. The key goals of the 2016 program include:

Much of the funding from earlier years ended up going to Time Warner Cable for modest expansion of its cable service, especially in eastern upstate New York. Likely applicants in 2016 include Time Warner Cable, Frontier Communications, community-owned/co-op broadband providers and rural wireless ISPs. Verizon and Cablevision are unlikely to apply.

Despite the governor’s efforts, most New York homes and businesses will be more affected by the Charter-Time Warner Cable merger, if it wins federal approval.

Gov. Cuomo

The Public Service Commission took its role very seriously, issuing a 93-page decision that took recommendations from consumer groups including Stop the Cap! very seriously. It did not share the industry’s belief that telecommunications providers in New York are heavily competitive.

“Time Warner serves close to 50% of New York State and we have a legitimate interest in ensuring that, when a company of this size provides customers with a service so affected by the public interest, as is communications, that real benefits accrue to consumers as a result of a given transaction,” the PSC wrote.

The PSC had an easier time sorting through comments about this merger, which generated considerably less interest than Comcast’s failed attempt to buy Time Warner.

“Generally, comments supporting the proposed transaction assert that, among other things, the merger will create jobs and provide better products at more affordable rates,” the PSC concluded in its ruling. “Those opposing the transaction state that the merger will inevitably lead to higher rates and potential data caps on broadband services in the future.”

The PSC took a very skeptical approach to Charter’s promised benefits, often finding them vague, questionable, or likely to have occurred with or without Charter’s involvement.

For example, the PSC questioned Charter’s promised network investments and upgrades:

Petitioners, however, decline to specify where in the national footprint of Charter, TWC and BHN these investments will be made or to identify the decisional factors to be used to channel these capital resources to specific areas or customers. There is no analysis to indicate that a reasonable proportion of these investments will be to systems in New York or for the benefit of New York customers. Similarly, there is no proposal by the Petitioners to describe the specific commitments that are being made or the specific enforcement mechanisms that would be used in the event the Petitioners’ implementation fell short of their commitments. Further, in order for these investments to be characterized as part of a net public benefit, Staff concludes, and we agree, that Petitioners would have to establish that these investments would not have been made in the absence of the proposed merger.

In the absence of a demonstration that there is “a tangible commitment to make new investments or invest beyond Time Warner’s current capital investment budgets,” it is difficult to characterize these capital expenditures as a certain benefit to New York customers or a satisfaction of the public interest under the New York statutes.

One of Stop the Cap!’s core arguments in our comments to the PSC was that Charter’s upgrade commitments were not particularly meaningful because Time Warner Cable was gradually upgrading its own systems to a level of service superior to what Charter plans to offer. The PSC clearly understood this and our warning that Charter’s commitments lacked specificity:

Public Benefit Assessment Staff and several commenters suggest that the proposed merger, as described in the Joint Petition and Petitioners’ Reply Comments, does not have sufficient net benefits to warrant a finding that the transaction is in the public interest. We concur. Many of the asserted benefits from the proposed transaction are events triggered by actions taken independently from the merger, and others are likely to be undertaken by TWC in any event, should the merger not be approved. Further, many asserted benefits are only described on a national scale and there is no way to determine if the investments or expenditures will occur in New York. Similarly, many of the projected benefits are described in terms that are too indefinite to permit us to assume that the benefits will occur as described to make a meaningful contribution to the transaction’s net benefits.

Time Warner Cable Maxx speed improvements.

As a result, the PSC has looked more closely at Time Warner Cable’s Maxx program to be the benchmark for New York, not Charter’s proposed upgrades. They have adopted our recommendation that every Time Warner Cable customer in New York get the same kind of service upgrade residents in New York City enjoy today.

Another argument made by Stop the Cap! dealt with affordable Internet access. Time Warner Cable’s Everyday Low Price Internet ($14.99/mo for 2Mbps) is not fast, but it is affordable and free of the kind of revenue-protecting pre-conditions usually placed on Internet access for the poor. Time Warner’s plan is available to every customer at any time with no restrictions or contracts. In contrast, Charter’s originally proposed affordable Internet program required participants have school-age children, enroll only in the late summer, not have current cable broadband service (or be willing to forego it for 60 days), and not have any prior balance. As with Comcast, pre-conditions like this limit participation. The PSC agreed and now customers will be able to keep their more affordable Internet plans without jumping through artificial hoops launched by Charter.

The days of rural New Yorkers being quoted $20,000 to install Time Warner Cable service are also going to be a thing of the past. In addition to a commitment to pay for line extensions reaching 145,000 unserved or underserved customers, Charter is now required to work with New York’s Broadband 4 All program to receive supplementary funding, as available, to complete service extensions to eventually reach every customer that lives within a franchise area and wants cable service.

There are several other benefits outlined below that make this a better (although not great) deal, at least for New Yorkers. If any other state regulator manages to get an even better deal for that state’s residents, New Yorkers will automatically benefit because of a “most favored state clause” in the PSC’s order, which requires Charter to share those benefits with New York residents.

All in all, the New York State Public Service Commission has lived up to its reputation as a consumer-protective body that is responsive to the needs of the public. This is in great contrast to many other states where regulators seem themselves as a business facilitator (and occasionally come directly from the businesses being regulated). In these states, the merger won approval with few, in any, preconditions.

We were delighted to have been extensively quoted and footnoted in the PSC’s order, having proven our case the Charter-Time Warner deal didn’t offer very much for New York. But we’re not happy the PSC punted on data caps. While recognizing they are a concern, the PSC seemed satisfied a three-year guarantee of no data caps was adequate. We disagree. As an increasing number of Comcast customers can attest, data caps are anti-competitive, anti-consumer, and unnecessary. Whatever benefits faster speeds can deliver can be easily curtailed by a data cap. So can online video competition. With much of upstate New York totally dependent on a single provider – Time Warner or Charter – for broadband speeds above 10Mbps, there is plenty of room for mischief that would otherwise be controlled by competitive forces. The PSC saw fit to avoid using its power of approval to get creative on keeping flat rate Internet affordable and available. That is a mistake we predict will be back to haunt us in the future.

Here are the specific conditions, most advocated by Stop the Cap!, that Charter Communications must agree to as a condition of the deal’s approval in New York:

Rural Broadband Access [$355 Million Value]

In addition to the goals accomplished by Gov. Cuomo’s New New York Broadband Program, Charter must agree to unilaterally build-out its network to reach an additional 145,000 “unserved” and “underserved” homes and businesses within four years. This will be an easy target for Charter to reach because the PSC defines “underserved” as any home with less than 100Mbps service. That represents much of upstate New York bypassed by TWC Maxx, so a speed upgrade in just one upstate city will achieve this requirement.

However, the PSC also included a second condition. Subject to the final terms and conditions of the Broadband 4 All Program being comparable to the Connect New York Program, Charter will be required to bid for Broadband 4 All Program funding to offer line extensions to any remaining unserved and underserved home across its entire New York service territory, which means every New Yorker within a cable franchise service area that wants service will be able to get it without being quoted tens of thousands of dollars for construction costs.

This will finally help would-be customers like Stop the Cap! reader Jesse Walser in Jamesville who has tried to get wired broadband in his home for over a decade. Verizon won’t upgrade its network and Time Warner Cable quoted him between $5,900 and $26,000 for installation of a line extension to reach his home.

All Digital Cable System Upgrade

Charter must convert their existing New York systems to an all-digital network (including upgrading the Columbia County Charter cable system to enable broadband communications) capable of delivering faster broadband speeds.

In Columbia County, residents are currently better served by smaller local providers. Both Germantown Telephone and Mid-Hudson Cable offer high-speed access throughout their territories. Berkshire Telephone has almost 100% DSL coverage, and Taconic Telephone has expanded DSL service to much of their huge service territory. Frontier Communications offers some DSL in southern Columbia County. The biggest problem providers are Verizon, which has no plans for DSL service in the area, and Charter Cable, which still runs a basic cable television-only system in the county.

In New York, Charter now provides cable television and other communication services to a relatively small number of customers, from two cable system clusters in and around Plattsburgh (14,000 customers) and Columbia County (2,500 customers). Plattsburgh gets television, phone and broadband service from Charter, but Columbia County is still served by a now-ancient, cable television only system.

Network Modernization and Speed Increases [$305 Million Value]

Charter must convert all of its systems in New York to all-digital within 30 months of the closing of the merger transaction. Charter is also required to offer broadband speeds up to 100Mbps to all customers by the end 2018 and match TWC Maxx speeds of 300Mbps by the end of 2019.

Charter’s all digital upgrade in upstate New York will facilitate faster broadband service, but it will also mean a set-top box or other similar device for every cable connected television in the home.

Broadband Affordability [$250 Million Value]

Despite Charter’s simplified menu of options (two broadband speed tiers and one video package), the PSC has required Charter to allow customers to keep their current plans, at least for the next several years:

• Charter is required to maintain and advance its commitment to an affordable standalone Internet offering through the continuation of the Time Warner Everyday Low Price $14.99
  service throughout the Time Warner New York territory for up to two years and allow existing customers to keep the service for three years.
• Charter is required to offer its 60Mbps standalone broadband product throughout New York at uniform national pricing. [$125 million value]
• Charter is required to allow existing Time Warner customers to retain, without material changes that have the intent to discourage, the standalone and bundled broadband services they subscribe to at the close of the transaction for three years from the date of the closing.
• Charter is required to provide a low-income broadband offering to eligible customers throughout its New York footprint. The PSC-ordered plan will offer 30Mbps for $14.99 a month to any household eligible for the National School Lunch Program and senior citizens 65 years and older eligible for the federal Supplemental Security Income program. No credit check shall be required and conditions requiring current broadband customers to wait 60 days to qualify and cover any past due bills have been deleted.

Customer Service [$55 Million Value]

Within two years after the close of the proposed transaction, Charter shall invest a minimum of $50 million in service improvement programs.

Charter is required to show a 35% reduction in Time Warner Cable’s 2014 cable PSC Complaint Rate by the end of 2020, with a 17.5% reduction due by the end of 2018. If they don’t achieve that, Charter must invest an additional $2.5 million in its service for each failure.

Job Protection

For the next four years, Charter cannot cut the number of customer facing jobs in New York.

Ricardo Bolán was not happy while reading his latest Comcast bill informing him he was about to be included in Comcast’s creeping trial of usage caps, which has slowly spread across the cable company’s service areas in the south and western U.S.

“Customer service said we were one of the communities ‘opting in’ to Comcast’s data usage plan, which is their way of saying Comcast forced it on us,” said Bolán, who lives in Hialeah, Fla.

Several South Florida customers are writing Stop the Cap! to complain about Comcast’s Oct. 1 imposition of a 300GB usage cap on its broadband service. Customers exceeding their allowance will now pay $10 in overlimit fees for each 50GB increment.

“Comcast’s usage meter hasn’t reliably worked down here for weeks, so you are flying blind over how much data you are using, and we’re talking about Comcast, so who can trust them?,” said Dave — a Stop the Cap! reader in Miami Beach. “I guess it’s back to AT&T.”

When the usage tool does work, some customers claim their reported usage levels suddenly doubled or tripled after Comcast’s usage cap started.

“Since this new data plan trial for Florida went into effect, I decided to check my usage,” Batchman27 wrote on Comcast’s support forum. “I am at 11GB in one day. I looked back at my usage for the past three months (July 1-Sept 30) and my average for those 92 days was 5.86GB per day. I find it very odd and extremely convenient that my usage [nearly doubled] on the day this ‘trial’ began.”

Over the next several days, his usage stayed consistently at or above 11GB a day.

“At this rate, I will exceed the 300GB before the end of the month and will be billed for the additional blocks of data (note: my highest usage during those three months was 202GB in August),” he added.

Another customer has had to banish Netflix, Hulu, and all other subscription video services from his home because they make all the difference whether or not his family of four will face overlimit bill charges and bill shock from Comcast.

“It’s no surprise what they are targeting with these caps,” said Austin Chilson. “If you watch Netflix or Hulu on a regular basis, 300GB is not enough. Netflix alone is responsible for about 17GB of video usage during the first three days of the month, and we were gone most of the day on Saturday the 3rd.”

Another customer echoes Chilson.

“I feel like we’re a pretty average family of four,” GuitarManJonny wrote Oct. 2 on Comcast’s support forum. “Of course we stream Netflix and we do a little downloading although nothing approaching what I’d consider excessive (no torrents, for example) and I have gone over the limit every month since July. I’m already at 13GB for this month, so it’s a pretty safe bet that I will go over again.”

Florida customers have an option other Comcast customers do not — a way back to unlimited usage by paying an extra $30 for an “unlimited use option.”

That seemed to only infuriate customers more.

“It’s amazing that a cap is being turned on and yet I’m asked to pay the same amount that I have been for unlimited and then being asked to pay MORE to continue the same plan I’m on now,” writes Gldoori. “It’s also ironic that I get the ‘We’re sorry. We can’t load your Internet usage meter right now’ [error message] when I try to monitor my usage on the website.”

“I’ll be cancelling my TV and home phone with them in a couple of months when my plan expires and then dropping my Internet speed to fit a “need” rather than a “want,” Gldoori wrote. “I’m not paying $30 more (for unlimited) just to have the same Internet plan I’ve been paying for already.”

A Comcast spokesperson tried to defend the implementation of usage caps in Miami-Dade, Broward and the Florida Keys by suggesting almost none of their customers will be impacted by it.

“To put things in perspective, 300 GB is an extremely large amount of data to use,” Comcast Florida spokeswoman Mindy Kramer told the Miami Herald. “The median data use for our customers is 40GB per month; about 70 percent of our customers use less than 100GB per month. About 92 percent of our customers will see absolutely no impact on their monthly bills.”

Kramer claims the new usage caps are about fairness.

“Our data plan trials are part of our ongoing effort to create a fair, technologically-sound policy in which customers who use more data pay more, and customers who use less pay less,” Kramer said.

Except no customers are paying less. Comcast’s broadband rates have not changed as a result of the market trials, only a usage cap was introduced.

In other cities living under Comcast’s usage caps, the first notice many customers take of the new caps comes in the form of a much higher bill. Clark Howard, a consumer reporter for WSB-TV in Atlanta, has heard from local residents reporting serious bill spikes if they ignored Comcast’s warning or failed to curtail their usage.

Another reader in South Florida reports Comcast does inform Floridians when their usage allowance runs out, including automated phone calls and a browser-injected warning message appearing on all non-https websites when a customer reaches 80 and 100% of their monthly allowance. Once that allowance is exceeded, your Internet will not stop working. Comcast will instead add $10 for each additional 50GB you use until the end of your billing cycle.

“There is no way to opt out of accruing overlimit fees and when the usage tool is down, you have no idea what your bill will look like,” said Bolán. “To keep this in perspective, if you manage to use 500GB in a month, the overlimit fee will add $40 to your bill. If you cut your cable TV and watch Hulu and Netflix, that kind of usage is not surprising.”

Chilson’s parents have been impacted by Comcast’s usage caps in another way — they are having trouble selling their home because Comcast is the only service provider. AT&T isn’t providing U-verse service to several homes on the street, including theirs.

“The realtor reports would-be buyers are shying away because they don’t like the Internet options, which are Comcast, Comcast, or Comcast,” Chilson said. “My parents have offered to split closing costs and even tried lowering the price, but because everyone hates Comcast, they just don’t want to be stuck living in a home with Comcast as their only choice.”

Chilson suggested offering would-be buyers $720 — the cost of two years of Comcast’s $30 a month unlimited add-on plan. Still no takers, and several buyers cited Internet availability and Comcast as reasons for backing away.

Jerome Stokes of Palm Springs, Fla. has managed to collect almost 2,000 signatures on his Change.org petition demanding Comcast remove the usage caps from all of their Internet plans. He calls data caps “barbaric,” and thinks they should be illegal. Other customers are also complaining to the FCC.

Sean Miranda thinks they are just bad for business:

“If this doesn’t affect most people anyway, why bother implementing this change? All it does is make people like myself, less inclined to continue using your service, and instead switch to a different ISP that doesn’t put such silly restrictions on their customers. AT&T is starting to look better and better right about now, but where do I go once they start implementing this too, huh? I want no involvement in this “trial” and hope you discontinue this monopoly scheme immediately, or I will have no choice but to take my business elsewhere or to create new competition.”

Less than three months before announcing it would acquire Time Warner Cable in a $55 billion deal, Charter Communications quietly dropped usage caps, in place on its broadband plans since 2009, without explanation and the FCC wants to know why.

FCC officials have sent a letter to Charter requesting a range of information about the company’s broadband services, including information about Charter’s since-dropped usage cap program. The federal agency reviewing its buyout of Time Warner Cable wants to know when Charter dropped its usage caps and why.

Charter Communications has promoted “no usage caps” as a selling point to convince regulators its purchase of Time Warner Cable is a consumer-friendly transaction. Charter has promised a cap-free Internet experience for Time Warner Cable customers for three years, but has not committed to offer unlimited broadband service beyond that date.

Two months before Time Warner Cable planned a since-dropped 2009 market test of usage caps in New York, North Carolina and Texas, Charter Communications confirmed it was introducing “monthly residential bandwidth consumption thresholds” on its broadband customers ranging from 100GB for customers with speeds of 15Mbps or slower and 250GB for customers subscribed to 15-25Mbps service.

“In order to continue providing the best possible experience for our Internet customers, later this month we will be updating our Acceptable Use Policy (AUP) to establish monthly residential bandwidth consumption thresholds,” Charter’s Eric Ketzer told DSL Reports at the time. “More than 99% of our customers will not be affected by our updated policy, as they consume far less bandwidth than the threshold allows.”

Few customers realized Charter had placed a cap on Internet usage because the cable company treated the limits as “soft caps” — guidelines they could cite if they found a customer using a very large amount of bandwidth. But customers were not charged overlimit fees and few ever heard from Charter about their usage, even if it well-exceeded their allowance.

In front of Time Warner Cable offices in Rochester, N.Y. protesting Time Warner Cable’s proposed usage caps. (April 2009)

Only a handful of companies, including national providers like AT&T (for DSL) and Comcast (in usage cap market trial areas), have followed up usage allowances with stinging overlimit fees for those exceeding them, applied to customer bills. The practice is far more common among smaller and regional cable companies like Alaska’s GCI, which earned 10 percent of its broadband revenue billing customers for excess usage.

In March of this year, Stop the Cap! reported Charter quietly dropped usage caps (or “thresholds”) from their Acceptable Use Policy, ending six years of usage capped service — less than three months before announcing it was acquiring Time Warner Cable.

Time Warner Cable’s own experience with usage caps was short-lived after Stop the Cap! and other consumer advocates and elected officials launched a protest campaign against Time Warner Cable’s plans to expand a test of usage-based billing beyond Beaumont, Tex. to Rochester, N.Y., Greensboro, N.C., and the cities of Austin and San Antonio in Texas.

Time Warner proposed four tiers of usage allowances: 5, 10, 20, and 40 GB priced from $29.95 to $54.90 a month. The overlimit fee was to be $1/GB. Sanford Bernstein, a Wall Street research firm, predicted an average family subscribed to Time Warner’s top 40GB usage plan would pay around $200 a month in overlimit fees if they used Netflix more than 7.25 hours a week.

Within two weeks of launching protests in the four cities where Time Warner was planning to add caps, the plan was shelved permanently. But many Time Warner Cable customers have remained wary of the company’s plans regarding usage caps. Time Warner’s retooled, optional usage capped tiers offered to customers looking for a discount have proved dismal failures since their introduction, with fewer than 1% of Time Warner customers finding usage-limited Internet access compelling.

Rationing Your Internet Experience?

Consumer advocates also fear usage caps could reappear under Charter as quickly as they disappeared. Stop the Cap! is suspicious of Charter’s time-limited commitment to keep customers free of usage caps for three years. We are lobbying state and federal regulators to permanently extend that commitment as a condition of approving any merger between Charter and Time Warner.

“Customers must be assured they can always choose a reasonably priced unlimited use Internet option,” said the group’s founder Phillip Dampier. “If Charter/Time Warner Cable/Bright House wants to offer optional discounts for customers volunteering to limit their personal use, we are not opposed to that. But based on Time Warner’s own record, you can count on only a few thousand customers willing to voluntarily surrender unlimited, flat rate access.”

Stop the Cap! believes there is no credible reason Internet providers should be imposing compulsory usage caps or usage billing on anyone.

“Broadband is a huge money-maker and the costs to offer it continue to drop even as provider profits rise,” said Dampier. “Rationing broadband with a usage allowance is as credible as rationing Niagara Falls or breathing.”

The FCC is also requesting documentation detailing Charter’s proposed expansion of Wi-Fi hotspots in Time Warner Cable areas and company plans to boost standard broadband speeds from 15Mbps to 60Mbps. Charter has until Oct. 13 to respond.

Charter Communications last week filed its 362 page redacted Public Interest Statement laying out its case to win approval of its acquisition of Time Warner Cable and Bright House Networks, to be run under the Charter banner.

“Charter may not be a household name for all Americans, but it has developed into an industry leader by implementing customer and Internet-friendly business practices,” its statement reads.

The sprawling document is effectively a sales pitch to federal regulators to accept Charter’s contention the merger is in the public interest, and the company promises a range of voluntary and committed service upgrades it says will improve the customer experience for those becoming a part of what will be America’s second largest cable operator.

Charter’s proposed upgrades fall under several categories of direct interest to consumers:

Broadband: Charter will commit to upgrade customers to 60Mbps broadband within 30 months (about 2.5 years) after the deal is approved. That could mean some Time Warner Cable customers will still be serviced with standard speeds of 15Mbps as late as 2018. Time Warner Cable’s Maxx upgrade program will be effectively frozen in place and will continue in only those areas “consistent with Time Warner Cable’s existing deployment plans.” That will leave out a large sections of the country not on the upgrade list. Charter has committed to impose no data caps, usage-based pricing or modem fees, but only for three years, after which it will be free to change those policies at will.

Wi-Fi: Charter promises to build on Time Warner’s 100,000 Wi-Fi hotspots, most in just a few cities, and Bright House’s denser network of 45,000 hotspots with a commitment to build at least 300,000 new hotspots across Charter’s expanded service area within four years. Charter will also evaluate deploying cable modems that also act as public Wi-Fi hotspots. Comcast already offers over 500,000 hotspots with plans for many more, making Charter’s wireless commitment less ambitious than what Comcast today offers customers.

Cable-TV: Charter has committed to moving all Time Warner and Bright House systems to all-digital service within 30 months. Customers will need to lease set-top boxes designed to handle Charter’s encryption system for all cable connected televisions. Among those boxes includes Charter’s new, IP-capable Worldbox CPE and cloud-based Spectrum Guide user interface system.

Video on the Go: Charter will adopt Time Warner Cable’s streaming platform and apps to provide 300 streaming television channels to customers watching from inside their homes (a small fraction of those channels are available while outside of the home). Customers will not be able to watch on-demand recorded DVR shows from portable devices, but can program their DVRs from apps or the website.

Discount Internet for the Poor: Charter references the fact its minimum entry-level broadband speed is 60Mbps so that does not bode well for Time Warner Cable’s Everyday Low Priced Internet $14.99 slow-speed Internet plan. Instead Charter will build upon Bright House Networks’ mysterious broadband program for low-income consumers.

Based on Charter’s initial proposal, Stop the Cap! will urge state and federal regulators to require changes of these terms before approving any merger. Among them:

1. All existing Time Warner Cable and Bright House service areas should be upgraded to meet or exceed the levels of service offered by Time Warner Cable’s Maxx program within 30 months. It is not acceptable to upgrade some customers while others are left with a much more modest upgrade program proposed by Charter;
2. Charter must commit to Net Neutrality principles without an expiration date;
3. Regardless of any usage-cap or usage-based pricing plans Charter may introduce after its three-year “no caps” commitment expires, Charter must permanently continue to offer unlimited, flat rate Internet service at a reasonable price as an alternative to usage-priced plans;
4. Customers must be given the option of opting out of any leased/provided-modem Wi-Fi hotspot plan that offers a wireless connection to outside users without the customer’s consent;
5. Charter must commit to a more specific Wi-Fi hotspot program that details towns and cities to be serviced and proposed pricing for non-customers;
6. Charter must allow customers to use their own set-top equipment (eg. Roku, Apple TV, etc.) to receive cable television service without compulsory equipment/rental fees. The company must also commit to offering discount alternatives such as DTAs for secondary televisions and provide an option for income-challenged customers compelled to accept new equipment to continue receiving cable television service;
7. Charter must retain Time Warner Cable’s Everyday Low Priced $14.99 Internet plan regardless of any other low-income discount program it offers. If it chooses to adopt Bright House’s program, it must broaden it to accept applications year-round, simplify the application process and eliminate any waiting periods;
8. Charter must commit to independent verification of customer quality and service standards and adhere to any regulatory guidelines imposed by state or federal regulators as a condition of approval.
9. Charter must commit to expansion of its cable network into a reasonable number of adjacent, unserved areas by committing a significant percentage (to be determined) of measurable financial benefits of the merger to the company or its executives towards this effort.

Stop the Cap! will closely monitor the proceedings and intends to participate on both the state (New York) and federal level to guarantee any merger provides consumers with an equitable share of the benefits. We will also be examining the impact of the merger on existing Time Warner Cable and Bright House employees and will promote merger conditions that protect jobs and limit outsourcing, especially overseas.

Time Warner Cable plans to reach 75 percent of its customers with Maxx service upgrades offering broadband speed boosts up to 300/20Mbps for the same price it charges for 50Mbps by the end of 2016, assuming a merger with Comcast does not result in the plans being shelved.

Time Warner Cable customers will also escape Comcast’s ongoing experiments with usage caps and usage-based billing if the company remains independent, as Time Warner Cable executives continue to maintain that usage pricing should only be offered to customers that want it.

Company officials discussed the ongoing investments in Maxx upgrades during a quarterly results conference call with investors held earlier today.

CEO Rob Marcus indicated Time Warner Cable will choose markets for Maxx upgrades based on what kind of competition the cable company faces in each city.

“Our aim is to have 75% of our footprint enabled with Maxx […] by the end of [2016], and my guess is we’re continuing to roll it out beyond that,” said Marcus. “So the only question is prioritization, and obviously as we think about where to go first, competitive dynamics are a factor. So that includes Google, although it’s not explosively dictated by where Google decides to go. In fact I think we announced the Carolinas before Google did their announcement this week. So competitors are certainly relevant obviously.”

Time Warner Cable has targeted its Maxx upgrades in areas where its principal competitors — AT&T, Google, and Verizon — have made or announced service and speed improvements. Maxx upgrades are now complete in New York City and Los Angeles. Much of Austin, Tex., is also finished, where both AT&T GigaPower U-verse and Google Fiber plan to offer gigabit service.

This year, Time Warner will focus on bringing Maxx to Charlotte, Dallas, Hawaii, Kansas City, Raleigh, San Antonio and San Diego. Charlotte, Raleigh, and Kansas City will eventually see high-speed competition from both Google Fiber and AT&T U-verse. Time Warner is facing increasingly aggressive competition from Hawaiian Telcom, San Antonio is on Google’s short list and will also likely see faster U-verse, and San Diego is on AT&T’s list for GigaPower upgrades.

Time Warner spent $4.1 billion on capital expenses in 2014, up nearly $900 million above 2013 spending. Most of the money went to network upgrades in Maxx markets where new set-top boxes and cable modems are being provided to customers. Marcus refused to offer any guidance about how much the company intends to spend on upgrades in 2015, citing its looming merger with Comcast.

Marcus

Not every city will benefit from network upgrades. Although 2/3rds of Time Warner Cable markets will get Maxx over the next two years, several will have to make do with the service they have now. The Time Warner Cable markets most at risk of being left off the upgrade list also have the weakest competition:

• Yuma, Ariz.
• Nebraska
• Wisconsin
• Eastern Ohio & Pennsylvania (except Cleveland)
• Binghamton, Utica, Watertown, Elmira, and Rochester, N.Y.
• Kentucky
• West Virginia
• South Carolina
• Western Massachusetts
• Maine

If the merger with Comcast is approved, the Maxx upgrade effort is likely to be shelved or modified by the new owners as customers are gradually shifted to Comcast’s traditional broadband plans.

Marcus also continued to shoot down compulsory usage-based billing and usage caps questions coming from Wall Street analysts. Marcus reminded the audience Time Warner Cable already offers optional usage-based pricing packages, and they have no intention of forcing customers to accept usage billing or caps.

“I think the ultimate success of usage based pricing will depend on customer uptake and customers’ interest in availing themselves of a usage based tier versus unlimited tier,” said Marcus. In earlier conference calls, Marcus admitted only a tiny fraction of Time Warner customers have shown any interest in usage allowances. The overwhelming majority prefer flat rate service.

In contrast, Comcast’s broadband customers in several southern cities continue to be unwilling participants in that cable company’s ongoing usage billing trials.