After failing in a surprise bid to acquire Time Warner Cable out from under Charter Communications, European cable magnate Patrick Drahi has spent much of this summer quietly working to make sure that never happens again.

The French press is buzzing over Drahi’s decision to move his corporate headquarters from the business friendly Grand Duchy of Luxembourg — nestled between Belgium, France, and Germany — north to the Netherlands. The move is mostly on paper — attorneys drafted the agreement that effectively transferred Altice SA to Drahi’s Dutch subsidiary Altice NV and shareholders approved.

Why move the company from one of Europe’s most business-friendly countries to Holland, a country with a long history of corporate oversight? It wasn’t for the stroopwafels.

The Netherlands is rare among most European countries because it allows corporations to set up “dual-class share structures.” That means nothing to 99% of Dutch citizens and the majority of our readers, but it means a lot if you are a billionaire running a hungry multi-national corporation using other people’s money to gain control of companies on your acquisition list.

With the move, Drahi can embark on a breathtaking acquisition spree without diluting the control he has over his growing cable empire. Going forward, Altice will apply different voting rights to various classes of stock offered to investors. Drahi now holds 58.5% of Altice stock. But his shares are special because they grant him 92% of the voting power. Other shareholders will find they are not entitled to an equal say in how the public company is run.

Altice admitted to regulators they designed the new share structure to give Mr. Drahi greater flexibility for financing and corporate transactions without threatening his control of the company. Altice called that “a value-enhancing strategy without diluting voting control.” This means Drahi can offer generous amounts of Altice stock to help fund future takeover deals without worrying that will reduce his control over the company.

If Drahi were to recklessly launch a spending spree of epic proportions to the consternation of shareholders, there will be little recourse and almost no chance of a shareholder revolt. But just to make sure, Drahi gets to pick six of Altice’s eight board members. He also won an agreement with board members who also hold shares in Altice granting him absolute and automatic support of all his proposals for 30 years. On top of that, he is entitled to “negative control” over the board, which means in any vote, he is allowed to cast a number of votes equal to all other board members.

With generous grants of authority like these passing muster, it’s no wonder executives of corporations around the world are urging consideration to move the corporate headquarters to the land of tulips and windmills. Fiat Chrysler already did, at the behest of Italy’s Agnelli family, which controls the Italian-American car company with a tight grip. Mylan, a producer of generic pharmaceutical drugs, managed to fend off Israeli rival Teva Pharmaceuticals, using Holland’s tolerance of executive-friendly poison pill maneuvers to keep unfriendly takeover artists away.

Now that the move to an Amsterdam post office box is complete, Drahi is in the process of rearming his war chest for another assault on the American mainland. The French newspaper l’Humanité warns it is more conniving from the “telecom vampire” that sucked the blood out of competitive cable in France. The newspaper cited deregulation and privatization to be great for billionaires like Drahi, but a bad deal for consumers.

Since the 1990s, telecom executives in Europe and North America have promised regulators a lot in return for deregulation and self-oversight. Allowing companies a free rein would stimulate competition and private investment to finance and construct next generation networks, they claimed.

But l’Humanité uncovered another motivation for telecom magnates like Drahi: to get filthy rich. The newspaper quotes one well-known anecdote about why Drahi got into the cable business — because after studying Forbes articles ranking the fortunes of the 1%, Drahi set his sights on the industry where there were the most billionaires – telecommunications.

Keeping that newly privatized and deregulated wealth requires ruthlessness for others but protection for your allies and yourself. Drahi followed the teachings of American cable magnate John Malone (who is Charter Communications’ biggest shareholder today) and began a debt-fueled buying spree of independent cable systems, quickly followed by ruthless cost-cutting at the acquired companies, earning him the nickname “The Slasher,” among others less charitable. His critics say he has a lot of nerve, because in many instances Drahi billed the companies he acquired for consulting and management fees. BFM Business reports Drahi has only one bottom line when making up his mind: how much generated cash will come from the decision.

The real money would start rolling in at the height of the dot.com boom. Regulators accepted a bid by Drahi and two of his allies to create the fourth French telecom operator — a wireless venture known as Fortel. The three men promised to invest more than $3 billion building the network, an amount called “not credible” by some regulators and a number of industry leaders. But since the frequencies went to those who promised the most investment, Fortel won. Drahi was named president of the company.

Just before the dot.com bubble burst and Fortel seemed to be wavering, Drahi sold many of his interests to UPC, a European cable conglomerate owned by his mentor John Malone. In early 2001, the wireless project was scrapped and Fortel itself was sold for scrap, never to build the promised network. But by then, Drahi was working at UPC with Malone on a massive cable industry acquisition and consolidation strategy. During his career at UPC, Drahi was in charge of spending hundreds of millions of dollars to acquire French cable operators including: RCF, Time Warner Cable France, Rhone Cable Vision, and Videopole InterComm.

Malone’s company quickly became overextended and very deep in debt when they suddenly stopped paying creditors in the fall of 2002. But before that happened, Drahi once again had the good fortune to cash out of UPC before the roof collapsed, selling his own Médiaréseaux cable system to Malone’s company at full value just before UPC went bankrupt. The bankruptcy that followed didn’t hurt Malone much and Drahi not at all.

Unwilling to rescue UPC’s faltering operations before bankruptcy, Malone waited until after the cable company went Chapter 11, when 65% of its debt was erased in court proceedings in return for a $99.8 million fresh infusion of cash from UGC/Liberty Media — another Malone-controlled venture that suddenly emerged with a checkbook. That bought Malone’s Liberty Media a 65.5% stake in the rescued company. Vendors, smaller debtors, and other shareholders fared far worse. Most received little, if any of the money owed them, and the remaining shareholders were given just 2% ownership of the company after it emerged from bankruptcy.

Drahi re-emerged on the French business scene after squirreling away his UPC cable proceeds in his new venture Altice, originally launched in Luxembourg, listed on the Amsterdam stock exchange, and controlled by another holding company owned by Drahi housed in the British tax haven of the Channel Islands. Drahi himself was, for a time, a Swiss resident domiciled in Canton Zermatt, another tax haven with tax thresholds that favor the super-wealthy. Drahi now qualifies.

Within four years of Altice’s existence, the company has acquired 99% of France’s cable systems. Drahi has since looked abroad to consummate more deals.

When an Israeli cable system became available to buy, Drahi suddenly became a citizen of Israel and rented an apartment in the country, mostly to meet Israel’s citizenship requirements to acquire the HOT cable system. After the sale was complete, HOT raised its rates, most recently by 20 percent.

Le Echos, a French newspaper, has watched Drahi plow his way through French telecommunications for several years and summed up Drahi’s acquisition strategy in three words: It’s never enough.

The newspaper suspects Drahi will continue using the same techniques he has used in France for the last 20 years to create an empire in the United States. He will take on massive amounts of debt and use Wall Street and French investment banks to pay for most of his acquisitions, combined with generous shares in Altice stock for shareholders and top corporate executives. With Altice’s relocation complete, Drahi can make generous offers his targets cannot refuse, even when they are privately owned.

To start an American cable empire, Drahi will have to acquire smaller cable operators to build leverage for potential takeovers of larger operators later. His ability to throw massive sums of money on the table makes it very likely his next targets will be Cox Communications and Cablevision — both controlled by families that have held on in the cable business despite years of tentative acquisition offers or sales explorations. Both Cox and Cablevision offer access to larger U.S. cities. Other likely targets, including Mediacom, Cable One, and Midcontinent Communications, don’t. He can digest those companies later.

On June 24, Drahi told his fellow dinner guests at the Polytechnique Foundation, “For me, telecom is like pinball,” Drahi said. “As long as there are balls, I will play.”

Fans of the “hands-off” approach to broadband oversight finally have a country where they can see a deregulated free marketplace in action, where consumers theoretically pick the winners and losers and where demand governs the kinds of services consumers and businesses can get from their providers.

That country is the Philippines, which has taken the libertarian free market approach to Internet access in a dramatic leap away from the authoritarian Marcos era of the 1980s.

The Deregulation “Miracle”

Until 1995, the Philippines Long Distance Telephone Company (PLDT) maintained a 60-year plus government-sanctioned monopoly on telecommunications services. Its performance was less than compelling. Establishing landline service took up to 10 years on a lengthy waiting list. Getting a phone line was the first problem, making sure it worked consistently was another. Just over 10 years after the United States formally broke up AT&T and the Bell System, the government in Manila approved RA 7925 – the Public Telecommunications Policy Act of 1995, breaking PLDT’s monopoly and establishing a level playing ground for each of 11 regions across the country and its many islands in which private companies could compete with PLDT for customers.

To attract investment and competition, the government declared all value-added services like Internet access deregulated and guaranteed the complete privatization of all government telecom facilities no later than 1998. It also initially limited the number of companies that could compete against PLDT in each region to two new entrants. The government felt that would be necessary to attract competitors that knew they would have to quickly invest millions, if not billions, to build telecom infrastructure in the Philippines. It would be hard to make a case for investment in a region where a half-dozen companies all engaged in a price war fighting for customers while stringing new telephone lines and building cell towers.

To prevent cherry-picking only the wealthiest areas of the country, the government declared its desire for a privately funded nationwide telecom network and used the 11 regions, combining urban and rural areas in each, to get it. Competitors were required to support at least 300,000 landlines and 400,000 cellular lines in each region. That assured new networks could not simply be built in urban areas, bypassing smaller communities. After building their networks, companies largely operated on their own in a mostly-free deregulated market, slightly overseen by the National Telecommunications Commission (NTC) — the Philippines equivalent of the FCC.

The early years of telecom deregulation seemed promising. PLDT, much like AT&T in the United States, kept the lion’s share of customers (67.24%) after deregulation took effect, but new competitors quickly captured one-third of the market. But with lax regulation and oversight, some of the Philippines’ most powerful families, many benefiting under years of the Marcos dictatorship, managed to gain influence in the newly competitive Philippines telecom business. In the United States, telecom competition meant a choice between Sprint, MCI, AT&T or others. In the Philippines, you dealt with one or two of nine powerful family owned conglomerates, each operating with a foreign-owned telecom partner. It would be like choosing between companies owned by the Rockefellers, the Astors, the Carnegies, or the Morgans.

The NTC remained more “hands-off” than the FCC, avoiding significant involvement in critical interconnection issues — how competing telephone companies handle calls from subscribers of a competing provider. That was last an issue in the United States in the early 1900s, where rare independent competitors to the rapidly consolidating Bell System faced a telecom giant that initially refused to handle calls from customers of other companies. American regulators eventually demanded interconnection policies that guaranteed customers could reach any other telephone customer, regardless of what company handled their service. In the Philippines, the NTC eventually mandated less-demanding access, allowing companies to charge long distance rates to reach customers of other companies. In the 1990s, it was not uncommon to find businesses maintaining at least two telephone lines with different companies to escape long distance expenses and stay accessible to all of their potential customers.

PLDT initially fought the opening of the marketplace but benefited handsomely from it once it took effect. The company got away with setting sky-high interconnection rates to connect calls from other smaller providers to its customers. It also made access to its network a minefield of bureaucracy and often required competitors to sign unfair revenue sharing agreements.

It is Cheaper to Buy Out the Competition Instead of Competing With It

The investment community eventually balked at the cost of constructing competing telecommunications networks, especially after the dot.com crash in 2000, and a drumbeat for industry consolidation through mergers and acquisitions quickly grew too loud to ignore. Investors fumed over the amount of money being spent by providers to meet their service obligations in the 11 subdivided regions. Instead of building redundant or competing infrastructure, allowing competitors to merge would cut costs and enhance investor return. The NTC let the marketplace decide, as did the government, and it led to a frenzy of industry consolidation that ran far beyond what the FCC and American Justice Department would ever tolerate.

In 2011, the government backed a colossal merger that brought together the wireless networks of Pilipino Telephone Corporation, PLDT, and Smart under the PLDT brand. The three former competitors became one and controlled 66.3% of the Philippine’s wireless customers. The merger was comparable to allowing Verizon to buy out Sprint.

Additional mergers in response to the super-sized PLDT rapidly reduced the competitiveness of Philippine’s telecommunications marketplace to a duopoly. Just two companies — PLDT, Globe, and their respective house brands — dominate landline, DSL, cable, and wireless telecommunications service in the Philippines. The investment community celebrated the deal’s approval as a lucrative goldmine of future revenue gains from a less competitive market.

Philippine Broadband: Hey, It’s at Least Moderately Better Than Afghanistan

Broadband performance, under any measure other than financial success, has proved abysmal for Philippine consumers and businesses. The country’s broadband speeds are among the worst in the world, only beating Afghanistan in many speed tests. Look the other way–oversight led to a bribery scandal in 2007 that threatened to bring down the government. Officials exploring the development of a National Broadband Network were accused of soliciting kickbacks from Chinese equipment vendor ZTE, which would have been responsible for supplying equipment for the project. The government canceled the project as the scandal widened and some of the principals left the country or in at least one case were kidnapped.

Eight years later, broadband in the Philippines would be considered a North American nightmare. The free market approach has led to free-flowing profits and a profound lack of marketplace competition, with broadband ripoffs and broken promises rampant across the country.

Although both PLDT and Globe Telecom are spending large sums on infrastructure, much of it benefits their very profitable wireless networks and business customers. Despite the investments, residential customers are stuck with some of the world’s worst broadband speeds and performance.

An independent Quality of Service test revealed the bad news all around:

The findings of the Philippine QoSE tests were expected, but nevertheless still disappointing.

The best performing among the three ISPs delivered only 21% of actual versus advertised speed on average. This same ISP also offered at least 256kbps download speed (generally accepted definition of broadband) only 67% of the whole time it was tested, falling short of the required 80% service reliability.

The Broadband Commission defines the core concepts of broadband as an “always-on service” with high capacity “able to carry lots of data per second.” While there is no official definition of broadband locally, the Philippine Digital Strategy 2011-2016 defines broadband Internet service as 2Mbps download speed.

Finally, like the last nail in the coffin, Philippine ISPs performed the worst in terms of value for money when compared to select providers in South Asia and Southeast Asia. The highest value given by any of the three Philippine ISPs tested was a measly 22kbps per US dollar. This figure is too low when compared to similar mobile broadband ISPs that offer 173kbps per dollar in Jakarta, Indonesia and 445kbps per dollar in Colombo, Sri Lanka.

These results have huge implications on truth in advertising, consumer welfare, and the need for appropriate regulation.

My DSL Service is So Bad I Prefer 3GB Usage-Capped Slow Wireless Instead

Home DSL broadband is so bad that customers have increasingly dropped service in favor of tightly managed wireless service. Companies report DSL customer losses over the past few years, with no end in sight.

The telecom regulator has generally just shrugged its shoulders at the situation, suggesting competition between equally poor providers will somehow resolve the problem. That view is applauded by service providers who claim the Internet is “just a value-added service” not essential to basic living needs. But consumer groups wonder why providers are allowed to make false advertising claims about the speed of their service with no repercussions. A range of position papers appealing to the government to create a meaningful minimum broadband speed have been introduced and some are being pushed by members of the Philippine Senate.

Senator Loren Legarda joined scores of other frustrated customers complaining about unreliable and expensive Internet in the country. In a 2014 hearing Legarda complained she had once again lost her DSL Internet connection in her office and her wireless connection was so slow it was unusable.

“As we speak now, there is no Internet connection in my office,” Legarda said. “I received a message this morning from my staff on my way here because I may be e-mailing, etc. And for someone whose deadline was yesterday, I always want things done fast and I’m sure many of you want that efficiency too to serve our people better.”

[flv]http://www.phillipdampier.com/video/ANC Poor Broadband Internet 5-14.flv[/flv]

ANC aired this story about Sen. Legarda’s broadband problems and how Philippines’ providers oversell their networks back in 2014. (4:56)

We Oversold Our Networks So Sue Us, Except You Can’t

Providers blame the problem on oversold networks that attempt to manage too many paying customers on an inadequate network. In other words, they blame themselves with little fear any regulator will create problems for them.

Wireless service is no panacea either. Customers in the Philippines face draconian “fair use policies” on so-called “unlimited plans” that leave them throttled after 1GB of usage per day or 3GB of usage per month, whichever happens first. Providers suggest the policy is a benefit, promising them a better user experience. Besides, they suggest, even those that run into the speed throttle can still browse the Internet, albeit at as speed resembling dial-up:

Your internet speed will slow down if you use up 1GB of data for the day, or accumulate 3GB of data usage for the month.

If you hit the 1GB/day threshold, you’ll experience slower speed, but no worries because as we mentioned above, you can still surf! You’ll move up to normal speed at midnight. If you hit the 3GB/month threshold, your speed will move up to normal speed on the next calendar month (not based on bill cycle).

Say Hello to the “Promo Pack” – Your Net Neutrality Nightmare Come True

Remember the scary ads from Net Neutrality proponents promising a future of Internet add-ons that would charge you to surf theme-based websites without facing network slowdowns or stingy usage caps if Net Neutrality protections were not forthcoming? In the Philippines, the nightmare came true. Mobile providers sell added cost “promo packs” that bundle extra throttle-free usage with theme-based apps. A package with Spotify runs about $6.50US a month and includes 1GB of usage. Anyone can buy a Spotify premium membership in the Philippines for around $4.37US without the add-on. But even worse are app-based promo packs that bundle free-to-download-and-use apps in the U.S. with special designated usage allowances.

Want to use Google Maps on your wireless provider? A “promo pack” including it costs around $2.17 a month and includes 300MB of usage. That money doesn’t go to Google — it stays in the pocket of the provider – Globe Networks. Twitter will set you back $4.37US a month and includes 600MB of usage, which seems odd for a short message service when contrasted with an identically-priced promo pack for Facebook, that needs the extra usage allowance more than Twitter likely would. But then they also get you for Facebook Messenger, which costs an extra $2.17US per month and comes with its own usage allowance — 300MB.

While segmenting out popular mobile apps for special treatment, Philippine mobile providers have also taken Verizon and AT&T’s lead, pushing plans like myLIFESTYLE that bundle unlimited text and phone calls with expensive data plans.

Lifestyle Promo Packs:

Lifestyle Bundle	Price (Philippine Peso)	Consumable MBs/GBs	Description
Spotify	299	1GB	Premium membership to Spotify, with 1GB data
Work	299	1GB	Access to Gmail, Yahoo Mail, Evernote, + 10GB Globe Cloud Storage
Explore Bundle	99	300MB	Access to Agoda, Trip Advisor, Cebu Pacific, PAL
Navigation Bundle	99	300MB	Access to Waze, Grab Taxi, Google Maps, MMDA app, Accuweather
Shopping Bundle	299	1GB	Access to Zalora, Amazon, Ebay, OLX, Ayosdito
Facebook	199	600MB	Access to Facebook
Twitter	199	600MB	Access to Twitter
Viber	99	300MB	Access to Viber
FB Messenger	99	300MB	Access to FB Messenger
Chat Bundle	299	1GB	Access to Viber, Whats App, FB Messenger, Kakao Talk, Line, WeChat
Photo Bundle	299	1GB	Access to Instagram, Photogrid, Photorepost, Instasize

Extra Add-ons:

Basic	Price	Description
Consumable	100	Stackable Amounts of P100 denomination consumables
Unli Duo	299	Unlimited Calls to Landline/duo
Unli Txt All	299	Unlimited Texts to other networks
Unli iSMS	399	Unlimitend International SMS to one intl. number
Unli IDD	999	Unli IDD calls to one intl. number
DUO International	499	Unlimited calls to US landlines

The Philippines Should Regulate Under the American Example vs. The Philippines Should Not Regulate Under the American Example (It’s Obama’s Fault)

Providers in the Philippines have learned a lot from America’s telecommunications lobbyists. Their advocacy campaigns revolve around the theme that the United States has the best wireless networks in the world, developed under a largely hands-off regulatory philosophy that the Philippine government should follow.

The government and regulators largely acquiesced to that campaign until this year, when that idea came back to haunt providers. Earlier this year, the Obama Administration and the FCC began taking a more hands-on approach to telecom regulation after recognizing the marketplace is not as competitive as providers suggest. Strong Net Neutrality enforcement, limits on mergers and acquisitions and strong signals marketplace abuses would no longer be tolerated are now being pushed in Washington by the White House and the Federal Communications Commission. Providers in the Philippines no longer advocate following the American model, but it may now be too late.

The NTC is close to issuing new minimum broadband speed and performance standards and is now listening to Filipino consumers that launched Democracy.net.ph to fight usage caps in the Philippines back in 2011. The NTC may soon require providers advertise average speeds and performance, not “up to” speeds nobody actually receives. Those getting poor service would be entitled to refunds or rebates.

That could be the first step towards a more activist NTC that may have learned the lesson that listening to the broken promises of better service through deregulation has resulted in some of the worst broadband performance the world has to offer. The Philippines took the advocacy arguments of the deregulation crowd and doubled down, not only allowing providers to lie and distort in their advertising, but also permitting massive industry consolidation reducing the choice for most Filipinos to just two providers for almost all telecommunications services. The government looked the other way as corruption turned into a scandal and today it is left with two very powerful conglomerates that deliver third world Internet access while pocketing the generous proceeds.

A Better Way to Better Broadband

A deregulated, free market only works where healthy competition exists. Too few players always leads to reduced innovation, poorer service at higher prices, and a corporate fortress deterring would-be competitors that are unlikely to be able to survive in a fair, competitive fight. For the Philippines (and by extension the United States) to fully benefit from healthy competition, large conglomerates must be broken up and further mergers must be prevented above all else. Until sufficient competition can self-regulate the marketplace, strong oversight is necessary to protect consumers from the abuses that always come from monopolies and duopolies. Charging wireless customers for free apps and suggesting 3GB of usage is equal to unlimited broadband are two places to start cracking down, quickly followed by an investigation into where investment dollars are being spent and for whose benefit. It seems like customers are not reaping any rewards in return for high-priced service.

The Philippine government should also continue exploring a National Broadband Network strategy that puts the country’s broadband needs above the profit motivations of the current duopoly. Governments build roads and bridges, airports and railways. Broadband is another infrastructure project that needs to be developed in the public interest. If private companies want to be a part of that effort, that is wonderful. But they should not be dictating the terms or holding the country back from what may be the biggest scandal of all — broadband that barely performs better than what the Taliban can get these days in Helmand province.

It didn’t take long for consumers to start flooding the Federal Communications Commission with thousands of complaints about poor Internet service, usage caps, and speed throttles.

The complaints arrived as the FCC began formally enforcing Net Neutrality by reclassifying broadband as a telecommunications service, subject to oversight by the federal agency.

Consumers used the occasion to deluge the commission about the sorry state of Internet access in the United States, whether it constituted a Net Neutrality violation or not.

National Journal obtained a sample of 50 complaints through a Freedom of Information Act request and it was clear data caps were at or near the top of the complaints list and consumers wasted no time slamming cable and phone companies over the practice.

“Our data should not be capped at 350[GB]!!!!” one consumer pleaded, likely a Suddenlink or Mediacom customer, which both have 350GB caps on certain speed tiers. “Please, please make data caps illegal!!”

No more Netflix and Hulu watching for this family: “I have to tell my kids to stop using YouTube and other services and stuff they need for school so we don’t go over the cap,” another consumer wrote, explaining that their Internet-enabled home security camera uses up a significant amount of their monthly data. “By Comcast having this data cap, I don’t have a open Internet … I also think this data cap is very inaccurate, it goes up without anybody being home, and sometimes by a lot.”

Comcast also received heat for poor performing broadband service, with one customer forced to use Wi-Fi at a local McDonalds to take an online exam because Internet service at home was so poor.

“The Comcast modem is such crap that we can’t even access the Internet,” the consumer wrote. “I’m livid.”

AT&T was roasted for speed throttling its “unlimited data” wireless plan — a practice that already resulted in a $100 million fine from the FCC for misleading consumers. AT&T is appealing.

In all, the FCC reports it received about 2,000 complaints from consumers in June, the first month Net Neutrality rules took effect. The agency has just 30 days to respond to the complaints, most lodged using this online form. The FCC may be able to answer many with a form letter because poor service and usage caps are not strict violations of Net Neutrality, unless the FCC determines the practices “unreasonably interfere” with Internet access. AT&T’s speed throttling comes a lot closer to meeting that test, because many throttled customers report their wireless data service is rendered effectively unusable once throttled.

But the broad-ranging complaints may still prove useful, suggesting to the FCC stronger rules and oversight are required for a broadband market many consider barely competitive and often customer abusive.

Seeking comment, National Journal reported the National Cable and Telecommunications Association and the U.S. Telecom Association, which both represent major Internet providers and have sued to overturn the regulations, declined to comment on the complaints.

Independent Internet Service Providers are hailing a decision by telecommunications regulators that will force big phone and cable companies to open their fiber optic networks to competitors, suggesting Canadian consumers will benefit from lower prices, fewer usage caps, and higher-speed Internet.

The Canadian Radio-television and Telecommunications Commission on Wednesday ordered companies like Bell/BCE, Telus, Rogers, Shaw, and others to sell wholesale access to their growing fiber optic networks, despite industry protests giving that access would harm future investment in fiber technology just as it is on the cusp of spreading across the country.

“We’re an evidence-based body, so we heard all of the positions of the various parties and we balanced those off through what we heard in our deliberations afterwards,” said CRTC chairman Jean-Pierre Blais. “In this particular case, we are concerned about the future of broadband in the country so we have to make sure we have a sustainable and competitive marketplace. It’s a wholesale decision that says Canadians can expect a better competitive marketplace because we are going to require incumbent cable and telephone companies to make their high-speed facilities available to competitors.”

[flv]http://www.phillipdampier.com/video/BNN Breaking News CRTC Decision Fiber 7-22-15.flv[/flv]

BNN broke into regular programming with this Special Report on the CRTC decision that will grant independent ISPs access to large telecom companies’ fiber optic networks. (3:13)

Large phone companies, including Bell, warned regulators in a hearing last fall that forcing them to open their networks to third parties would deter investment in fiber expansion. Canadian telecom companies now provide about three million homes with either fiber to the home or fiber to the neighborhood service. Blais, along with representatives of independent ISPs have rejected Bell’s arguments, arguing competition from cable operators was forcing telephone companies to upgrade their networks regardless of the wholesale access debate.

“Our view is the incumbent telcos have a market reason to invest in improving their plant through the investment in fiber,” Blais said. “That’s what Canadians expect and because of market conditions they have to do that investment. So we’re quite confident that’s going to happen.”

Canadian telecommunications companies have done well selling Internet and television services in a highly concentrated telecommunications and media marketplace. For example, BCE, the parent company of Bell Canada, Bell Media, and Bell TV owns a wireless carrier, a satellite TV provider, the CTV television network and many of its local affiliates, dozens of radio stations, more than two dozen cable networks, a landline telephone company, an Internet Service Provider, and ownership interests in sports teams like the Montreal Canadiens as well as a part interest in The Globe and Mail, Canada’s unofficial newspaper of record.

Companies like Rogers, Shaw, Vidéotron, Telus, and Bell have dominated the market for Internet access. But regulators began requiring these companies to sell access to their networks on a wholesale basis to smaller competitors to foster additional retail competition. Today, there are over 500 independent ISPs selling service in Canada, including well-known companies like TekSavvy, Primus, and Distributel. In the past few years, Internet enthusiasts have flocked to these alternative providers to escape a regime of usage caps and usage-based billing of Internet service common among most incumbent cable and phone companies. Competition from the independents, which offer more generous usage allowances or sell unlimited access, has forced some phone and cable companies to offer cap-free Internet service as well.

[flv]http://www.phillipdampier.com/video/BNN CRTC Decision Interview with Jean Pierre Blais 7-22-15.flv[/flv]

BNN interviewed CRTC chairman Jean-Pierre Blais about the commission’s decision to open up wholesale access to Canada’s fiber optic networks. (5:26)

Despite the competition, the majority of Canadians still do business with BCE, Rogers Communications, Quebecor (Vidéotron), Shaw Communications, or Telus, that collectively captured 75 percent of telecom revenue in 2013.

Although competitors have been able to purchase wholesale access to cable broadband and DSL service, nothing in the CRTC rules required big cable and phone companies to sell access to next generation fiber networks. That gap threatened the viability of independent ISPs, left with offering customers access to older cable/copper technology only. This week’s CRTC decision is the first step to grant access to fiber networks as well, although some ISPs are cautious about the impact of the decision until the CRTC provides pricing guidance.

“The commission took a great step today in favor of competition,” Matt Stein, CEO of Distributel Communications Ltd., told The Globe and Mail. “In giving us access to fiber to the premise, they have ensured that as speeds and demands increase, we’re going to continue to be able to provide service that customers want. It’s definitely going to be some time before these products make it to market. There’s going to be the costing and the implementation, and reasonably it could be a year or even longer before the products are actually out the door. But the heavy lifting? Today that was done.”

Bram Abramson, chief legal and regulatory officer for TekSavvy Solutions Inc., added some caution.

“The devil really is in the details on this,” Abramson told the newspaper. “That’s why I say we like the direction, because there are a million ways in which this could become unworkable if implemented wrong. For example, what rates are we going to pay? We won’t know until those tariffs are done and settled.”

Other so-called “wireline incumbents” like Manitoba Telecom and SaskTel will also be required to make their fiber optic networks available to competitors.

Last fall, Bell warned the CRTC of the consequences of letting TekSavvy, Distributel, and others resell access to their fiber networks.

“We are not suggesting that mandated access will immediately grind investment to a halt in every location in Canada, but it is a question of balance and it will have an impact,” Mirko Bibic, chief legal and regulatory officer for BCE/Bell told CRTC commissioners at a hearing.

Bibic cautioned if the CRTC granted competitive access it could affect how the company allocated its capital investments and could lead it to shift spending to other areas instead.

“What we’re saying is a mandated access rule will affect the pace of deployment and the breadth of deployment,” Bibic said.

Specifically, Bibic claimed Bell may call it quits on fiber expansion beyond the fiber-to-the-neighborhood service Bell sells under the Fibe brand in 80% of its service area in Ontario and Quebec. Bell had envisioned upgrading the network to straight fiber-to-the-home service, eliminating the rest of the legacy copper still in its network. But perhaps not anymore.

“If the commission forces the incumbent telephone operators to open access to fiber-to-the-home, BCE might not prioritize building that final leg in some communities,” Bibic warned. “The point is, with 80% of our territory covered […] we can hold and do really well with fiber-to-the-node for longer than we otherwise might.”

Nonsense, independent ISPs told the CRTC, pointing to the cable industry’s preparations to introduce DOCSIS 3.1 cable broadband and vastly increase broadband speeds well in excess of what a fiber-to-the-neighborhood network can offer.

“First of all, [telephone companies] have a natural incentive to build wherever there is a cable carrier, because otherwise the cable carrier will eat their lunch,” said Chris Tacit, counsel to the Canadian Network Operators Consortium, which represents the interests of independent ISPs. “There’s a reason that they’re sinking all that money into [fiber-to-the-home], it’s because they have to keep up. Now, I don’t believe for a minute that they are going to stop investing if they have to grant access.”

Regulators in the United States have traditionally sided with large telecommunications companies and have largely allowed phone and cable companies to keep access to their advanced broadband networks to themselves. Republicans have largely defended the industry position that regulation and forced open access would deter private investment and competitors should construct networks of their own. In some cases, they have. Google Fiber is now the most prominent overbuilder, but several dozen independent providers are also slowly wiring fiber optics in communities already served by cable and telephone company-provided broadband. Whether it is better to inspire new entrants to build their own networks or grant them access to existing ones is an ongoing political debate.

But the CRTC has not given independent ISPs a free ride. The commission announced it will begin moving towards “disaggregated” network availability for smaller ISPs, which will require them to invest in network equipment to connect with incumbent networks on a more local level, starting in Ontario and Quebec.

The CRTC under Blais’ leadership is gaining a reputation of being pro-consumer, a departure from the CRTC’s often-industry-friendly past. Blais has presided over rulings to regulate wholesale wireless roaming fees to lower consumer costs and forced pay television providers to unbundle their huge TV channel packages so consumers can get rid of scores of channels they don’t watch.

[flv]http://www.phillipdampier.com/video/The Globe and Mail Internet competitors welcome CRTC decision on broadband access 7-23-15.flv[/flv]

Canadian Press spoke with independent ISPs about their reaction to the wholesale access decision. (1:18)

Unless a broadband provider can deliver the same kind of profitability earned by U.S. cable operators, don’t expect significant private investment in broadband expansion even if the company can easily turn a profit.

That was the argument brought to a House hearing on funding broadband infrastructure expansion by Craig Moffett, a Wall Street analyst at Moffett Nathanson.

“Infrastructure deployment requires the expectation of a healthy return on capital,” Moffett told the House Communications and Technology Subcommittee in a hearing this afternoon. “That should be taken as a given, but all too often, in my experience, the issue of return on capital is either ignored or misunderstood in policy forums. It is not a matter of whether a business is or isn’t profitable, it is instead a matter of whether it is sufficiently profitable to warrant the high levels of capital investment required for the deployment of infrastructure.”

Moffett pointed to the massive profits earned by cable operators Comcast, Time Warner Cable, Charter and Cablevision, all of which earned returns well in excess of their cost of capital, ranging from 13-33 percent. Moffett argued Wall Street has come to expect those kinds of returns, and investors will take a hard look at companies deploying new expensive networks against those that have largely paid back much of the capital costs incurred when their networks were built decades ago.

Moffett continued to criticize the broadband expansion being undertaken by large incumbent telephone companies that he claims does not earn attractive returns for their wireline businesses, even as they have introduced new services like faster broadband and television.

“For example, a decade after first undertaking their FiOS fiber-to-the-home buildout to 18 million homes, Verizon has not yet come close to earning a return in excess of their cost of capital,” said Moffett. “In 2014 their aggregate wired telecommunications business earned a paltry 1.2% return, against a cost of capital of roughly 5%. For the non-financial types in the room, that’s the equivalent of borrowing money at 5% interest in order to earn interest of 1%. That’s a good way to go bankrupt.”

Moffett was also critical of AT&T’s planned expansion of gigabit fiber broadband.

“AT&T has committed to the FCC to make fiber available to a total of 11.7 million locations in their footprint in order to make their acquisition of DirecTV more palatable to policy-makers, but it is hard to be optimistic that they will do much better this time around,” Moffett argued.

Moffett believes competition is bad for the profitable broadband business.

“The broader take-away here is that the returns to be had from overbuilding – that is, being the second or third broadband provider in a given market – are generally poor,” Moffett said. “Let that sink in for a moment. Stated simply, it means that market forces are unlikely to yield a competitive broadband market. Neither, by the way, does wireless appear to offer the promise of imminent competition for incumbent broadband providers. Wireless networks simply aren’t engineered for the kind of sustained throughput required for a wired-broadband-replacement service.”

As a result, investors prefer that the broadband marketplace remain a monopoly or duopoly to guarantee the kinds of healthy returns they have earned for years, especially from the cable stocks Moffett has always favored in reports to his clients. Additional competition drives prices down, reducing profits, which in turn discourages investors who have high expectations their money will make them a lot more money.

Moffett’s arguments are largely based on broadband being a for-profit private enterprise, not a public infrastructure effort. But it does explain why there is a willingness to compete in large cities where network construction costs are lower and rural communities remain relatively unserved. As with electrification 100 years ago, investor-owned utilities were willing to wire large communities while ignoring rural farms and communities. Only after electricity was deemed a necessary utility did alternative means of funding, including member-owned co-ops and community-owned utilities finish electrifying areas private capital ignored.

Moffett’s guide to better broadband is based entirely on profitability — delivering enough profits and other returns to attract investors that will look elsewhere if costs become too high. Community-owned broadband avoids this dilemma by advocating for break-even or modestly profitable networks that focus on service, not investor-attractive profits.

Several members of Congress commented Moffett’s vision of broadband was discouraging, even depressing, because it seemed to be locked in a for-profit, private sector model that had few answers to offer for communities left behind. Moffett even warned against oversight and regulation of incumbent cable and phone companies, claiming it would further drive away private investment.

But broadband customers, Moffett admitted, will still pay the price for investor expectations.

“As everyone understands, the cable video business is facing unprecedented pressure,” Moffett testified. “Cord cutting has been talked about for years but is finally starting to show up in a meaningful way in the numbers. And soaring programming costs are eating away at video profit margins. From a cable operator’s perspective, the video business and the broadband business are opposite sides of the same coin. It is, after all, all one infrastructure. Pressure on the video profit pool will therefore naturally trigger a pricing response in broadband, where cable operators will have greater pricing leverage.”

Moffett said the kinds of rate hikes consumers used to pay for cable television now increasingly transferred to broadband customers is nothing nefarious. To keep investors happy, the kind of returns once earned from cable television will now have be delivered on the backs of broadband customers if Congress expects cable companies to continue upgrading and expanding their networks.

“All else being equal, that will mean that even new builds of broadband will become increasingly economically challenged and therefore will become less and less likely,” said Moffett. “Or they will simply have to sharply raise broadband prices.”

Moffett’s comments do come with some baggage, however. His clients pay for his advice and Moffett has been a long-time supporter of cable industry stocks. He has been a strong and natural advocate for a cable industry that faces only token opposition. He has browbeaten executives to start broadband usage caps and usage-based billing to further boost broadband profits, slammed telephone company competition in the cable business as financially reckless and unwarranted, and dismissed Google Fiber as a project designed to help Google’s public policy aims more than earn the search giant profits from the broadband business.

But Moffett has also been wrong in the past, particularly with respect to cord-cutting which he used to downplay as an urban legend and on the ease cable companies would be able to acquire and merge with each other.

Beyond all that, Moffett and his clients have a proverbial dog in the fight. After years of pumping cable stocks, suggestions that more competition for the cable industry is a good thing would simply be bad for business.