As Dr. John Malone positions his pieces on the cable industry’s chess board to win back the title of King of Big Cable, it is important to consider history.

Malone’s growing interest in a combined Charter-Time Warner Cable, under his effective control, is the first step towards re-envisioning Tele-Communications, Inc. (TCI) — America’s largest cable operator in the 1980s and early 1990s. Although most of the original TCI Cable systems are now owned by Comcast, Malone’s notorious way of doing business may soon affect millions of Charter and Time Warner Cable subscribers in the not-too-distant future.

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How bad was life with TCI as your local cable company? Listen to Alan Garner, then-City Attorney for Jefferson City, Mo., who testified before Congress in March, 1990 about the uniquely abusive, allegedly criminal behavior of out of control TCI executives. (5:04)

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Sen. Daniel Inouye (D-Hawaii) was so stunned by the events in Jefferson City, he first asked if TCI’s threats were documented and on learning they were the basis of $35 million in court-ordered damages, the chairman of the Senate Commerce Committee remarked, “you got thugs around there.” Under detailed questioning by Sen. John Danforth (R-Mo.) Garner talks about the “B-Movie” threats from TCI executives who warned city officials “we know where you live,” constant rate hikes, take-what-we-give-you service, and the fact TCI was willing to rip down cable lines and leave the city without cable service if they were denied a franchise renewal. (14:12)

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A befuddled Sen. Conrad Burns (R-Mont.) asked Garner why the city would still want to stay involved in the cable franchise process after the city’s horror story. Garner explained cable operators use public property to wire service to customers. Without local oversight, Garner believed TCI would still be scattering cable lines across neighbors’ backyards, across sidewalks, and draped over fences. TCI had a unique way of managing local service complaints, according to Garner. It threw service orders into a random cardboard box and let cable repair crews fish them out one by one. The ones furthest back in the box were the oldest, and the least likely to ever be chosen. TCI only listened to city officials when they had some oversight and enforcement powers. (3:13)

One of America’s lowest-rated cable companies and an industry legend labeled by consumer advocates as the “Darth Vader of cable” may be joining forces to buy Time Warner Cable, according to Bloomberg News.

The blockbuster buyout would leap Charter Cable from fourth largest cable operator to second place, although still behind Comcast in terms of revenue and number of subscribers.

The spectacular return of Malone to the top echelon of the American cable industry was the talk of the industry’s Cable Show, ongoing this week in Washington, D.C. Those attending are reportedly buzzing Malone’s imminent return is likely to spark a massive consolidation of the U.S. cable industry to as few as three major cable operators serving more than 95 percent of the American cable marketplace.

Malone

Driving momentum to merge, in Malone’s view, is increasing cable video programming costs, which are cutting into profits. Having a fewer number of cable operators could hand the industry more leverage over broadcasters and unaffiliated cable programmers, but could also cut costs through marketplace efficiencies and volume discounts.

“If you’re John Malone, you’re thinking: we’ve got to get bigger,” Jim Boyle, managing director of SQAD and formerly a cable equity analyst for more than 19 years, said in a telephone interview with Bloomberg News. “The bigger Charter can get, the more economies of scale discounts it can get,” he said. “If everyone else is playing checkers, Malone is playing three-dimensional chess.”

For many on Wall Street, the only thing left to do is plan the funeral for the country’s second largest cable company.

“If you’re going to do a transformational deal, your choices are Time Warner Cable, Time Warner Cable and Time Warner Cable,” Craig Moffett, a veteran industry observer told Bloomberg. “You can roll up all the little guys if you want to, but even if you did, you haven’t built something that’s truly large-scale.”

“Time Warner Cable is gone,” Chris Marangi, a money manager at Gamco Investors Inc., said. “I think Charter will buy them eventually, whether it’s Liberty facilitating that or Charter doing it directly or the two companies doing it in partnership.”

Industry observers predict Malone will signal his dream deal by initially launching smaller mergers and acquisitions before attempting a buyout of a cable company considerably larger than Charter itself.

The first target: perennially bottom rated Mediacom, where any buyer is likely to be hailed as a rescuer by beleaguered subscribers who have regularly dismissed the cable operator as incompetent. Next, the Washington Post’s Cable ONE, which may already be plumping itself up as at attractive takeover target through investment in improving its network infrastructure.

But the most obvious foreshadowing of a big deal with Time Warner would most likely come if Charter first successfully acquires always-rumored-for-sale Cablevision, where the controlling Dolan family is rumored to be holding out for an exceptionally attractive buyout package other cable companies aren’t willing to offer. Time Warner itself has been rumored as a buyer, but current management has repeatedly stressed it will not pay a premium price for acquisition targets.

Malone may not be able to help himself. His long history in the cable industry includes a voracious appetite for merger and acquisition deals. For more than two decades, Malone led Tele-Communications, Inc. (TCI). When he arrived in 1972, TCI was a rural Texas and western states cable operation with 100,000 subscribers. By 1981, through mergers and acquisitions, he built TCI into America’s largest cable operator. In 1998, AT&T bought out TCI Cable. The phone company later exited the cable business and sold most of the operation to present owner Comcast.

The level of consolidation proposed by Malone is unheard of in the United States, but is familiar in Canada where two major cable operators — Rogers and Shaw — control the majority of cable subscriptions. Third largest Vidéotron leads in Québec and Cogeco serves pockets of Ontario and Québec bypassed by Rogers and Vidéotron, respectively.

Dr. John Malone’s Liberty Media will buy a 27.3 percent interest in Charter Communications with a $2.62 billion investment in America’s fourth largest cable operator.

Liberty will buy the stake from investment firms Apollo Management, Crestview Partners, and Oaktree Capital Management.

“We are pleased with Charter’s market position and growth opportunities and believe that the company’s investments in its high-capacity digital network which provides digital HD and on demand television, high-speed data and voice, will benefit its customers and shareholders alike,” Malone said in a statement.

Malone is no stranger to the cable industry, having been at the helm of Tele-Communications, Inc. (TCI), the largest cable operator in the country in the 1980s and 1990s. TCI systems were sold to AT&T in 1999, which eventually spun them off to Comcast and Charter Communications, which still run them today.

Dr. John Malone

Since Malone’s exit at TCI, he has been in charge of Liberty Global, which owns cable systems overseas and controls several U.S. cable programming interests through his Liberty Media operation. The investment in Charter represents Malone’s return to an American cable industry he helped pioneer.

The agreement requires Liberty to acquire no more than 35 percent of Charter until January 2016, at which point Liberty’s maximum allowable controlling interest rises to 39.99 percent. Liberty also wins four seats on Charter’s board of directors. But many industry analysts predict Malone will not be satisfied with anything less than eventual full control.

Malone often takes an initial minority interest in the companies he later intends to acquire outright. Macquarie analyst Amy Yong told Reuters he employed a similar tactic to gain control of SiriusXM, the satellite radio company.

“He’s probably going to have a pretty big say in the company’s future over the next few years. This will accelerate capital returns and take advantage of Charter’s tax assets to consolidate the cable industry some more,” Yong said.

Malone is attracted to investment opportunities in companies with high marketplace leverage opportunities and exploiting potential revenue from captive customers in the rural, less-competitive markets Charter has traditionally favored.

Here today, gone tomorrow: Bresnan Communications that was Optimum is now Charter Cable.

Malone also has a strong philosophy towards marketplace consolidation, something ongoing in the cable industry, particularly among smaller cable operators serving less-populated areas.

Under the leadership of ex-Cablevision executive Thomas Rutledge, Charter Communications recently acquired the interests of Cablevision West — former Bresnan Cable systems in the mountain west. Malone sees considerable opportunities expanding operations in smaller communities that have either received substandard cable service, or none at all.

Malone has recently been stockpiling available cash for investments, spinning off his former cable programming properties Starz, a premium cable channel, Discovery Communications, which runs the Discovery Networks, and Liberty Interactive, which owns the lucrative home shopping channel QVC.

Charter Communications has had a difficult history. Microsoft co-founder Paul Allen bought a controlling interest in the cable operator in the late 1990s, primarily because he saw cable broadband as a natural fit for his vision of a future wired America. Allen’s weighty investment was used to jump into a cable industry consolidation frenzy still underway more than a decade ago. Cable operators claimed consolidation was necessary to increase efficiency by building up regional clusters of cable systems. Before consolidation, it was not unusual for two or three different cable operators to serve customers in separate parts of a metropolitan area. Often one operator would serve the city with one or two other cable companies offering service in suburban and exurban communities nearby.

In 1999 alone, under Allen’s leadership, Charter Cable acquired 10 cable companies.

By 2005, Charter Cable had amassed millions of new subscribers, but not as many as company executives claimed when they artificially inflated subscriber numbers to protect the value of the company’s stock. Four executives were indicted that year for criminal accounting fraud. By 2009, with $22 billion in debt, the company declared bankruptcy, eventually wiping out shareholders.

The court’s decision to forgive 40 percent of the company’s debt angered creditors but opened an opportunity for private equity firm Apollo Capital Management to gain control by ending up with the majority of shares in the restructured company.

For years, the company has continued to receive some of the worst customer satisfaction ratings in the industry, usually ranking at or near the bottom. But many Charter customers stay because there is little competition from other players, especially telephone companies. AT&T’s U-verse is the most likely triple-play competitor, but AT&T has avoided introducing U-verse in many of Charter’s service areas because they are deemed too small.

Malone sees Charter’s future revenue potential grow as a broadband provider, considered both a money-maker and must-have service. Analysts say that Charter is well-positioned to poach more customers from phone companies, which typically only offer slow DSL service in much of Charter’s rural footprint.

Gore: Malone is the Darth Vader of cable.

But customers may find with Malone’s involvement, that service may come at a price. Malone was criticized heavily in the 1980s and 1990s for leading the charge for customer rate increases. TCI’s captive customers in Tennessee found their cable bills increased between 71-116 percent in just three years during the 1980s.

Former Sen. Al Gore, Jr., at the time called Malone the head of a “Cable Cosa Nostra” and the Darth Vader of big cable. The cable executive was a frequent target of lawmakers flooded with constituent complaints about poor cable service and accelerating prices.

In 1999, The Guardian noted Malone was an admirer of telecom oligopolies:

He is scathing about regulatory attempts to prevent monopolies and mergers. Governments, he says, are “antediluvian” in their approach to the emerging new world economic order. Instead of trying to prevent mergers and collusion between media and communications companies, Malone says governments should actually promote the creation of “super-corporations” (such as his own) with enough capital to exploit the potential of new technology.

That attitude may soon be back in play with the cable industry’s increasing focus on expanding broadband service as their new primary revenue generator.

The Federal Cable-Protection Commission

Problem: Solved?

The Federal Communications Commission last Friday unanimously voted to free cable operators from their obligation to sell cable channels they own to rival satellite and phone companies.

In a bizarre justification, FCC chairman Julius Genachowski said ending the unambiguous rules would prevent anti-competitive activity in the market because the FCC would retain the right to review industry abuses on a case-by-case basis. Lawmakers called that an invitation for endless, time consuming litigation that will deprive consumers of competitive choice and favor the still-dominant cable television industry.

“The sunset of the program access rules could lead to a new dawn of less choice and higher prices for consumers,” said Rep. Ed Markey (D-Mass.), one of the original authors of the rules. “If we do not extend the program access rules, the largest cable companies could withhold popular sports and entertainment programming from their competitors, reducing the competition and choice that has benefited consumers. I urge Chairman Genachowski and the FCC commissioners to extend the program access rules that have helped to level the playing field in the paid television marketplace.”

The FCC’s decision could have profound implications on would-be competitors, particularly start-ups like Google Fiber that could find itself without access to popular cable networks at any price.

At a time when cable companies and programmers are constantly pitted against each other in contract/carriage disputes, the deregulatory spirit at the FCC is likely to irritate consumers even more.

Phillip “How nice of the FCC to think about poor cable companies” Dampier

The FCC claims it will continue to protect sports programming from exclusive carriage agreements — a potentially critical concession considering the history of “exclusive, only on cable” programming contracts was largely focused on regional sports channel PRISM.

Comcast successfully kept the popular Philadelphia-based network (today known as Comcast SportsNet Philadephia) off competing satellite services and cable operators by only distributing the network terrestrially. A controversial FCC rule (known as the “terrestrial exception”) states that a television channel does not have to make its shows available to satellite companies if it does not use satellites to transmit its programs. Cox Cable has its own implementation of that loophole running in San Diego.

Derek Chang, executive vice-president of DirecTV, says Comcast’s local market share dominance is a direct consequence of SportsNet. More importantly, Chang believes even if Comcast says it will sell the network to competitors, it is free to set prices for SportsNet as high as it wants.

“They win either way,” Chang said. “They’re either going to gouge our customers, or they’re going to withhold it from our customers.”

Verizon FiOS has secured the right to carry the channel on its system, but won’t say how much it pays.

The PRISM case is today’s best evidence that exclusive agreements do hamper competition — Philadelphia is hardly a hotbed of satellite dishes, with a 40-50% reduced satellite subscriber rate attributable to the lack of popular regional sports on satellite.

FCC Chairman Julius Genachowski’s cowardly lion act is back. Will anyone at the FCC stand up to Big Telecom companies while busy watering down pro-competitive policies?

Historically, satellite dish owners and wireless cable customers were the most likely victims of exclusive or predatory programming contracts, with some cable networks refusing to sell their programming to competing technologies at any price.  Others charged enormous, unjustified mark-ups that made the technology non-competitive. Today, wireless cable television is mostly defunct and home satellite dish service has largely been replaced with direct broadcast satellite providers DirecTV and Dish.

Today’s programming landscape is more complicated. The FCC would argue that unlike in the 1980s, most cable programmers are no longer directly controlled by yesteryear’s Tele-Communications, Inc. (TCI) and Time Warner (Time Warner Cable was spun off into an independent, unaffiliated entity in March, 2009), which collectively controlled dozens of popular cable networks. But programmers’ know their best customers remain cable operators which maintain a dominant market share in every major American city.

Friday’s ruling has implications for telco-TV providers and satellite dish companies that may find programming negotiations more complicated than ever. AT&T U-verse and Verizon FiOS may find access to cable-owned programming difficult or even impossible to obtain if cable operators decide their unwanted competition is harmful to their business interests.

But an even larger challenge looms for the next generation of video competition: Google Fiber TV and “over the top” online video.

Nobody is complaining about Google’s robust gigabit broadband offering, but Kansas City residents originally expressed concern about the company’s proposed television lineup. As originally announced, Google Fiber TV was missing HBO and ESPN.

A competing cable system without ESPN is dead in the water for sports enthusiasts.

Google has since managed to sign agreements that expand their channel lineup (although it is still missing HBO). But nothing prevents channel owners from dramatically raising the price at renewal. That is a concern for smaller cable operators as well, who want protection from discriminatory pricing that awards the best prices to giant multi-system operators like Comcast and Time Warner Cable.

The most important impact of the FCC’s decision may be for those waiting to launch virtual cable systems delivering online programming to customers who want to pick and choose from a list of networks.

The FCC’s “new rules” give programmers who depend on tens of millions of cable subscribers even more ammunition to kill competing distribution models like over the top video. Start-up providers who cannot obtain reasonable and fair access to cable programming will have to depend on the vague policies the FCC claims it will enforce to prevent egregious abuse. But the FCC is not known for its speed and start-up companies may face enormous legal fees fighting for fair access that is now open to subjective interpretation.

The thin horizontal line found in this chart represents the rate of inflation. The individual bars show just how high Tennessee cable operators raised their rates from 1986-1989, when deregulation allowed them to charge "sky is the limit" prices. (click to enlarge)

On this Memorial Day, we thought it might be a good time to look back to years past when legislators were forced to deal with a deregulated cable industry that immediately went on a rate hike spree that was unprecedented even for oil companies.

In 1984, cable television companies won the right of complete rate deregulation, arguing government involvement in the cable business was retarding investment, harming innovation, and killing jobs.  By keeping the cable industry free of government regulation, the industry promised improved service, more innovation, and even the potential for more competition.  The importance of this drive to deregulation was underlined with a flood of campaign contributions from some of the biggest players in the industry.

In the mid-1980s, that lineup included the National Cable Television Association (NCTA), the cable industry lobbying group led by James Mooney.  Tele-Communications, Inc. (TCI)’s John Malone — dubbed Darth Vadar of a Cable Cosa Nostra by then Sen. Albert Gore, Jr., and an assortment of cable industry executives from companies like Warner-Amex, Sammons Cable, Cablevision, and a variety of other operators large and small.

TCI would later become AT&T Cable and then eventually evolve into today’s Comcast.  Warner-Amex is today Time Warner Cable.  Sammons joined dozens of other medium-sized multiple cable system operators in selling out to larger players — in this case TCI.  Cablevision sold off most of its systems outside of the metropolitan New York City region to companies like Time Warner Cable.

After winning near-complete deregulation, Americans saw the start of a relentless series of rate increases Tony Soprano would not have attempted.  Called “price adjustments” or a benign “pricing reset” by cable lobbyists, what used to be an average rate for basic cable amounting to just over $11 per month rapidly increased to $16, $19, $25, $29, $35, $45, $50, $55, and now today’s frequently seen $60 threshold for a basic cable package.

What used to be an exciting new product in the late 1970s and early 1980s was now rapidly becoming a highly consolidated handful of corporate empires that promised to be money machines for shareholders.  At one point, adding up the number of corporate entities that were parented under TCI, including local and regional cable systems, programming distributors, cable networks, and other entities generated a printout more than six feet in length.

The mid-to-late 1980s were the cable industry’s glory years, with unfettered rate increases sometimes resulting in more than doubling customer bills.  Members of Congress got an earful from irate consumers who noticed even with the higher prices, the quality of service received deteriorated markedly.  Many cable systems simply left an answering machine on their service and support line.  Others left local cable offices locked and closed for business.

There were many reasons for the deterioration:

• Investors saw the best possible returns buying and selling existing cable systems, not investing -in- them;
• Some cable systems changed hands 3-4 times in just a few years, leading to staffing shortages, billing chaos, and confusion;
• Some small operators saw no need to invest in aging cable systems when their value was skyrocketing during the consolidation era.  They waited for a buyout offer and cashed out of the business;
• There was no enforcement agency capable of stopping the abusive business practices;
• There was almost no competition.

Before becoming part of the Comcast empire, Tele-Communications, Inc. (TCI) was the nation's largest cable operator. Later known as AT&T Cable, the company was eventually sold to Comcast.

Competition in the cable industry was a rarity in the 1980s, but a handful of communities did have more than one cable operator, with lower rates and better service the result.  But pressure from investors forced most of these competitive anomalies to either divide into respective monopoly service territories, or forced one company to sell their business to the other.  Competition and rate wars were bad for business.

The satellite dish industry was the only national competitor to cable television at this time.  Before DirecTV and DISH, rural and suburban homeowners erected often enormous backyard satellite dishes of up to 12 feet in diameter.  Capable of receiving hundreds of channels with better picture quality, home satellite offered an experience somewhat familiar to those with large rooftop antennas.  Rotate the dish slightly and enjoy two dozen or more channels on each respective satellite.  More than three million Americans eventually installed satellite dishes, even with the entry cost of installation and assembly, which could run several thousand dollars.  For rural Americans, it often meant the difference between some television and none at all.

Never tolerant of competition, the satellite industry came under a withering attack on all fronts:

• Cable programming was scrambled and either unavailable to satellite dishowners at any price, or sold at prices similar to what cable subscribers would pay, even though home dishowners owned and maintained their own equipment;
• Most cable networks at that time were either owned outright or tacitly subject to cable industry pressure not to sell programming at steep discounts;
• Premium cable channels often sold programming to satellite dishowners at prices higher than those paid by cable subscribers;
• Home dishowners were required to purchase their own decoder box outright, at a cost exceeding $300 — an enormous price at a time when most people paid less than $20 a month for basic cable service;
• Cable companies encouraged or defended town zoning laws which required would-be dishowners to purchase expensive permits, hide their dishes from view (and sometimes viewable signals in the process), or ban their use outright;
• In the case of networks owned by TCI, consumers with satellite dishes often had to buy the programming from their nearest TCI cable system and be billed by them.  So much for avoiding the cable company.

Then-Sen. Albert Gore, Jr. (D-Tenn.) got into the fight against unregulated cable when cable rates in his home state of Tennessee more than doubled.

The worst abuses, and corresponding distortions from the cable industry, occurred from 1987-1992.  More than a dozen pieces of legislation attempted to correct the over-deregulation of the industry, but campaign contributions to both parties meant years of failed attempts.  Some of the worst anti-consumer officials included Sen. Tim Wirth (D-Colorado) who happened to represent the state where the vast majority of large cable companies were headquartered at that time, Sen. Daniel Inouye (D-Hawaii), who read industry talking points and was skeptical about stories of cable abuse, and Sens. Bob Packwood (R-Washington) and Bob Dole (R-Kansas) who didn’t like government regulation and thought the abuses would be self-correcting if consumers cancelled service.

Many of the heroes of the cable fight of the last generation remain familiar names.  Sen. Albert Gore, Jr. (D-Tennessee) was perhaps the industry’s greatest foe.  He began the fight as a congressman in the mid-1980s and carried the battle all the way through 1993, when he became vice president under the Clinton Administration.  Other notables included Sen. Wendell Ford (D-Kentucky), who is a far cry from today’s two senators in Kentucky.  Ford heard complaints about Kentucky cable companies almost daily.  Sen. Howard Metzenbaum (D-Ohio), who wasted no time calling the cable industry an outrageous unregulated monopoly. Sen. John Danforth (R-Missouri) railed against the cable industry and was instrumental in helping pass legislation in 1992 that finally ended the worst abuses.

What the cable industry promoted and defended in 1987 for cable television will haunt you when you consider they are appealing for the same types of “hands-off” policies for broadband today.  Only now they are joined by the nation’s largest phone companies.  In the early 1990s, the telephone companies were threatening to compete with the cable industry and the two were considered foes.  But once an industry player becomes well-established, they defend their right to raise rates, restrict service, and retard any additional competition.

To give you a taste of what the abuses were like, and the industry’s efforts to excuse them, we present coverage of a Senate hearing held in November, 1989 pitting cable industry titans against would-be competitors and government officials from towns and cities trying to deal with a cable “bad actor” in their midst.  Some of the most interesting parallels come in the very last video as you watch Chuck Dawson, representing consumers and independent satellite dealers, detailing the schemes by the cable industry to kill off any threats.  Pay particular attention as he discusses the lies the industry will tell to predict the imminent failure of its then-newest competitor — the home satellite dish industry.  It’s a game plan they’ve used again fighting off community broadband.