“We did try, but it’s over now.” — Barry Diller, a major investor in Aereo

The multibillion dollar broadcasting conglomerates that control over-the-air television and most cable networks got everything they wanted today from a 6-3 decision in the U.S. Supreme Court that declared Aereo, an independent provider of online over-the-air television streams, illegal.

The court’s liberal justices joined Chief Justice John Roberts and moderate Anthony Kennedy in a complete repudiation of the legality of Aereo’s business model — selling over the air television signals received by individual tiny antennas and streamed over the Internet — without seeking permission from the stations involved. In a sweeping ruling, the court found that no matter the technology involved, any effort to resell access or copies of television programs without the permission of the copyright holders is illegal. “We conclude that Aereo is not just an equipment supplier,” Justice Breyer wrote in the opinion. “We do not see how the fact that Aereo transmits via personal copies of programs could make a difference.”

Aereo CEO and founder Chet Kanojia quickly released a statement declaring the decision “a massive setback for the American consumer.”

“We’ve said all along that we worked diligently to create a technology that complies with the law, but today’s decision clearly states that how the technology works does not matter. This sends a chilling message to the technology industry,” Kanojia said. “We are disappointed in the outcome, but our work is not done. We will continue to fight for our consumers and fight to create innovative technologies that have a meaningful and positive impact on our world.”

That is news to Barry Diller, perhaps Aereo’s biggest investor. He has said for months if Aereo loses in the Supreme Court, the service will be shut down. He repeated that today on CNBC.

“We did try, but it’s over now.” Diller said.

Image: Wall Street Journal

Reed Hundt, former FCC chairman under the Clinton Administration, said despite the fact the ruling may inconvenience Aereo subscribers, the court wasn’t wrong in its decision.

“Aereo has very little chance surviving in the business and Barry Diller got his hands caught in the regulatory cookie jar,” Hundt said. “You can’t use technological tricks to bypass [cable network] rules and regulations. I think that’s a very reasonable decision.”

Observers worried about the impact the Aereo case might have on ancillary services unintentionally caught up in any broad legal language, but the court appeared to carefully avoid those complications.

The ruling leaves antenna manufacturers unaffected because antenna users simply capture over-the-air signals for reception in the home without paying the kind of ongoing subscription fees Aereo charged its customers.

The decision also protects the legality of cloud computing, DVR recordings, and other new technologies not directly related to the lawsuit. “We agree with the Solicitor General that “[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented,” Breyer wrote.

The court’s liberal wing shared Breyer’s opinion. Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all voted in favor of broadcasters including Walt Disney (ABC), Comcast (NBC), CBS Corp., and FOX.

Conservatives slammed the majority ruling against Aereo, claiming the court was bending over backwards for Hollywood and giant broadcasting conglomerates. Justice Antonin Scalia’s dissent ripped the majority’s ruling, claiming it would “sow confusion for years to come.” Scalia predicts there will be plenty of new litigation before the courts on issues related to online transmission of copyright works as a result of today’s decision.

Although Aereo was still pre-registering customers as of this afternoon, that isn’t likely to stay true for much longer. Aereo’s only bid to stay alive is to seek licensing agreements with the stations it distributes over its service. With broadcasters’ strengthened hand, it is unlikely they will be receptive to pricing agreements that would allow Aereo to continue providing service for $8 a month. Major cable and satellite operators are signing retransmission consent agreements with volume discounts that run above $1 a month per subscriber for each television station in a local area. In most cities, that would amount to at least $5 a month, but Aereo will likely face even higher costs because it lacks access to discounts.

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CNN attempts to explain the meaning of the Aereo case to its less-informed viewers with mixed success. But the story explains why this is relevant to cord cutters. (4:41)

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Bloomberg News reports the Aereo case was a decisive victory for programmers who now have a strengthened hand asking for more compensation during retransmission consent negotiations with cable and satellite providers. (1:55)

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Broadcasters called today’s victory “pro-consumer” but that is open to debate. Bloomberg News digs deeper into what this case means for DVR and cloud storage services as well. (5:26)

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Wall Street is rewarding big television networks and station owner groups with higher stock prices after winning a decisive victory against Aereo, Bloomberg reports. (2:35)

Official merger announcement due next month.

Several media reports breaking this evening report Softbank/Sprint is close to a deal to acquire majority interest in Deutsche Telekom’s T-Mobile USA in a deal that will combine the two carriers under the Sprint brand.

Bloomberg News reports Sprint has offered $40 a share for Deutsche Telekom’s T-Mobile USA — 50% in cash and 50% in stock. The deal will leave the German wireless carrier with a 15% minority ownership stake in the combined company. Sprint would still dwarf both Verizon Wireless and AT&T and would continue to be hampered by significant coverage caps in suburban and rural areas that neither Sprint or T-Mobile’s home networks cover.

The deal includes a breakup fee payable by Sprint if the merger is blocked by regulators or fails to be executed. Sprint reportedly offered $1 billion in cash and assets if the deal falls through, but Deutsche Telekom is reportedly seeking as much as $3 billion.

Masayoshi Son

Bloomberg News previously reported a deal would probably be announced in June or July. It’s possible a deal announcement could slip into August, a source told Bloomberg. If no deal is reached by then, the sides are likely to stop negotiations for several years and wait for a new U.S. presidential administration more amenable to consolidation.

Billionaire Masayoshi Son, the founder of Japan-based SoftBank, which owns 80 percent of Sprint, faces skeptical regulators who are wary about eliminating one of four national wireless competitors. But in the last few days, executives at Sprint and Deutsche Telekom believe they can get the deal passed regulators preoccupied with a flurry of merger announcements, including Time Warner Cable and Comcast and AT&T and DirecTV. With a tidal wave of consolidation sweeping across the American telecommunications market, some industry insiders believe groups opposed to such deals will be overwhelmed trying to stop all of them.

More importantly, the issue of wireless spectrum was a key motivator to push the two companies towards a quick deal.

The Wall Street Journal reports the FCC originally considered barring AT&T and Verizon Wireless from bidding on airwaves that would have been set aside for smaller carriers. But a fierce lobbying effort by AT&T successfully nixed that plan and slashed the amount of spectrum available exclusively to smaller carriers. Sprint and T-Mobile believe the FCC’s decision gives them an opening to argue the government needs to allow a merger because it isn’t doing enough to help them compete.

Rosenworcel

Another welcome sign for Sprint and T-Mobile is Democratic FCC commissioner Jessica Rosenworcel, who saw nothing wrong with holding private meetings with Wall Street insiders, telling them she would keep “an open mind” when considering the merger. With both Republican commissioners almost certain to approve a merger and Thomas Wheeler and Mignon Clyburn — both Democrats — likely opposed, Rosenworcel may have signaled she holds the deciding vote.

Prior to 2011, wireless consolidation was rampant, with an FCC predisposed to almost rubber stamping approval of buyouts and mergers. That changed in 2011 when AT&T tried to buy T-Mobile. It was the U.S. Justice Department, not the FCC, that led the charge against the deal, calling it anti-competitive. The Justice Department was vindicated when T-Mobile promptly launched new competitive service plans and pricing that forced price reductions and plan improvements from its competitors. T-Mobile has seen dramatic growth since launching its aggressively competitive service plans.

Sprint will likely claim T-Mobile’s competitive gains are illusory and will never offer a real competitive challenge to AT&T and Verizon’s market dominance. Despite the fact the combined company would still be far smaller than either AT&T or Verizon Wireless, Sprint is expected to argue it will be better positioned to fiercely compete for customers.

That argument is tempered by the fact that competition in the prepaid wireless market — already diminished by AT&T’s acquisition of Leap Wireless’ Cricket — will suffer even more if Sprint and T-Mobile, both major competitors in the prepaid market, are combined.

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Sprint is nearing an agreement on the price, capital structure and termination fee of an acquisition for T-Mobile US that could value the wireless carrier at almost $40 a share, people with knowledge of the matter said. Alex Sherman has more on Bloomberg Television’s “Taking Stock.” (2:34)

AT&T’s claim it wants to expand gigabit fiber to the home service to as many as 100 cities nationwide requires closer inspection on news this week it has slashed spending on its wireline business.

Investors knocked AT&T’s share price today as they learned earnings from AT&T’s wired networks will be lower than expected.

TheStreet reported this morning the spending cuts are so significant, they are creating a financial risk for a number of AT&T’s major vendors.

Research firm Jefferies issued a research note warning that AT&T’s spending cuts began last month and seem to be ongoing. As a result the companies that have the most exposure to AT&T’s wireline business are at increased financial risk. Those suppliers include optical fiber equipment manufacturer Alcatel-Lucent, as well as Ciena, Juniper, ADTRAN, Finisar, and JDS Uniphase. As a result, all but Finisar saw their share prices drop significantly in morning trading.

Earlier today, AT&T reported it was ahead of schedule to complete its Project VIP expansion of its 4G LTE wireless and U-verse networks. As U-verse expansion nears an end, vendor orders may be in decline. Wall Street analysts see no evidence AT&T is preparing to spend much on any other expansion efforts, including fiber to the home service.

As Broadband Reports’ notes, without significant capital to invest in fiber upgrades, they are not going to happen.

These cuts make it hard to take the company’s claims of meaningful 1 Gbps fiber expansion seriously as there’s simply no budget cordoned off for such a project (“Project VIP” funds are already in use on other efforts). While AT&T has the press believing they’re deploying 1 Gbps to “up to 100 cities,” AT&T’s shrinking CAPEX tells a different story entirely.

Fiber to the home service is more costly than AT&T U-verse’s fiber to the neighborhood service because it requires a fiber cable be brought directly to each home or business — a more costly endeavor that requires careful cable burial or overhead drop line replacement, as well as the possibility of in-home wiring adjustments. Considering the billions spent on U-verse expansion to date, at least as much will be required to upgrade to fiber to the home service and there are no signs AT&T is ready to invest in anything beyond press releases.

And then there were three?

Deutsche Telekom has agreed to sell T-Mobile USA to the Japanese parent company of Sprint in a deal that would combine the third and fourth largest wireless companies in the United States under the Sprint brand.

Japan’s Kyodo News Agency said they learned about the buyout agreement from industry sources, but did not reveal any further details.

SoftBank CEO and Sprint chairman Masayoshi Son and his lobbyists have been promoting such a merger for weeks, so the outlines of a deal between the two companies come as no surprise.

Softbank CEO Masayoshi Son

U.S. regulators have repeatedly signaled their discomfort with any merger between Sprint and T-Mobile, however. Both the heads of the Federal Communications Commission and the U.S. Justice Department have repeatedly raised concerns about the emergence of just three national wireless competitors in the U.S.

AT&T is largely responsible for that perception after its failed attempt to buy T-Mobile in 2011. The large breakup fee and spectrum T-Mobile received after the deal collapsed helped T-Mobile relaunch as a feisty competitor that has forced competitors to cut prices. To regulators, it demonstrated the importance of having at least four national competitors, if only to check the dominance of leaders AT&T and Verizon Wireless. Both the FCC and Justice Department fear any additional mergers would lead to increased prices for U.S. consumers.

Son has argued that the four-competitor policy has left AT&T and Verizon dominant against their two much-weaker competitors. An enlarged Sprint would force broadband speeds upwards as a combined Sprint and T-Mobile launch a massive network upgrade that would force prices down.

Both Softbank and Deutsche Telekom seem eager to close a deal. Softbank is already arranging financing for the estimated $50 billion Deutsche Telekom is expected to ask for T-Mobile USA and the German owner of T-Mobile has sought to exit the U.S. market for at least two years, with the proceeds of any sale used to improve its operations in Germany and eastern Europe, where the company has been more profitable.

So far, Wall Street has had only a muted reaction to the merger news. Many analysts still expect U.S. regulators to shoot down any deal that proposes merging any of the four current large wireless carriers.

SoftBank CEO and Sprint chairman Masayoshi Son was interviewed at this week’s Code Conference. On the current state of wireless: “Oh my god, how can Americans live like this?” (1:23)

“Comcast Corp.’s bid to buy Time Warner Cable Inc. may be the opening act for a yearlong festival of telecommunications deals that would alter Internet, phone and TV service for tens of millions of Americans.” — Bloomberg News, May 14, 2014

Wall Street analysts remain certain Comcast and Time Warner Cable won’t be the only merger on the table this year as the $45 billion dollar deal is expected to spark a new wave of consolidation, further reducing competitive choice in telecom services for most Americans.

While the industry continues to insist that the current foundation of deregulation is key to investment and competition, the reality on the ground is less certain.

Let’s review history:

For several decades, the cable industry has avoided head-on competition with other cable operators. They argue the costs of “overbuilding” cable systems into territories already serviced by another company is financially impractical and reckless. But that did not stop telephone companies like AT&T and Verizon from overhauling portions of their networks to compete, and in at least some communities another provider has emerged to offer some competition. Some wonder if AT&T was willing to spend billions to upgrade their urban landline network to provide U-verse, why won’t cable companies spend some money and compete directly with one another?

The answer is simple: They can earn a lot more by limiting competition.

When only a few firms account for most of the sales of a product, those firms can sometimes exercise market power by either explicitly or implicitly coordinating their actions. Coordinated interaction is especially suspect where all firms seem to charge very similar prices and few, if any, are willing to challenge the status quo.

Since the 1980s, the telecommunications industry has been deregulated off and on to a degree not seen since the pioneer days of telephone service. That was the era when waves of mergers created near-monopolies in the oil, railroad, energy, tobacco, steel and sugar industries. By the late 1890s, evidence piled up that proved reducing the number of providers in a market leads to higher prices and poor service. The abuses eventually led to the passage of the Sherman Antitrust Act of 1890 and later the Clayton Antitrust Act of 1914.

Here is what happened when the cable industry was reined in during the early 1990s, only to be deregulated again.

The generation of political leaders that dominated Washington during the 1980s developed selective amnesia about economic history and dismantled many of the regulatory protections established to protect consumers, arguing competition would keep markets in check. In the broadband and cable business, that has not proved as successful as the industry represents.

At the heart of the problem is the 1996 Telecommunications Act, signed into law by President Bill Clinton. The sweeping law is littered with lobbyist landmines for consumers and their interests. Under the guise of increasing competition, the 1996 law actually helped reduce competition by removing regulatory oversight and, perhaps unintentionally, sparking an enormous rampage of industry consolidation followed by price increases. The Bush Administration kept the war on consumers going with the appointment of Michael Powell (now the CEO of the cable industry’s lobbying group) to chair the Federal Communications Commission. Under Powell, non-discriminatory access to networks by competitors was curtailed, and Powell’s FCC gave carte blanche to the cable industry’s plan to cluster its territories into large regional monopolies and a tight national oligopoly. The FCC’s own researchers quietly admitted in the early 2000s “clustering raised prices.”

By January 2001, cable operators had settled on rate increases that averaged three times the rate of inflation. While the national inflation rate hovered around 1%, cable companies routinely raised basic cable rates an average of 7% annually. Powell declared rising cable rates were not a consumer problem and adopted the industry’s classic talking point that rate increases reflect the “value of the programming” found on cable. In fact, even as cable customers grew increasingly angry about rate increases, Powell told three different reporters he wanted to further relax the FCC’s involvement in cable pricing. (McClintock, Pamela, “Powell: No Cable Coin Crisis” Variety, April 30, 2001; Hearn, Ted. “Powell: Value Matters in Cable Rates,” Multichannel News, March 13, 2002; Powell Press Conference, February 8, 2001; Dreazen, Yochi. “FCC Chairman Signals Change, Plans to Limit Intervention,” Wall Street Journal, February 7, 2001.)

Economists reviewing data found in publicly available corporate balance sheets soon found evidence that the “increased programming costs”-excuse for rate increases did not hold water. The less competition or number of choices available to consumers in the market unambiguously lead to higher prices. It has remained true since Consumers’ Union revealed the financial trickery in 2003:

The cable industry will claim that programming costs are driving prices up. While programming costs have certainly risen, a close look at the numbers shows that rising program costs account for only a small part of the rising rates.

If costs were really the cause of rising prices, then the cable industries’ operating margins – the difference between its revenues and costs — would not be rising. The facts are just the opposite. Operating margins have been increasing dramatically since 1997. The operating margin for the industry as a whole will reach $18.8 billion per year in 2002, $7 billion more than it was in 1997. Operating revenues per subscriber have increased dramatically over that period, from $208 per year to $273. That is, after taking out all the operating costs, including programming costs, cable operators have increased their take per subscriber by over 30 percent.

[…] The ability of cable operators to raise rates and increase revenues, even with rising programming costs, stems from the market power they have at the point of sale. They would not be able to raise prices and pass program price increases through if they did not have monopoly power.

Consumers’ Union also foreshadows what will happen if another wave of industry consolidation takes hold the way it did over a decade earlier:

While the cable industry has certainly increased capital expenditures to upgrade its plants, it has actually sunk a lot more capital into another activity – mergers and acquisitions.

It is the outrageous prices that have been paid to buy each other out and consolidate the industry that is helping to drive the rate increases. Between 1998, when the first mega merger between cable operators was announced, and 2001, when the last big merger was announced, cable companies spent over a quarter of a trillion dollars buying each other out. In those four years, they spent almost six times as much on mergers and acquisitions as they did on capital expenditures to upgrade their systems. At the same time, the average price paid per subscriber more than doubled.

When a cable operator pays such an outrageous price, the previous owner is reaping the financial rewards of his monopoly power. The acquiring company can only pay such a high price by assuming that his monopoly power will allow him to continue to increase prices. Monopoly power is being bought and sold and borrowed against. The new cable operator, who has paid for market power, may insist that the debt he has incurred to obtain it is a real cost on his books. That may be correct in the literal sense (he owes someone that money) but that does not make it right, or the abuse of market power legal.

Fast-forwarding to 2014, economist and Temple professor Joel Maxcy said the same basic economic truths still exist today with Comcast’s merger with Time Warner Cable.

“My concern is the merger and the consolidation of the cable and internet delivery system for consumers and what will happen to internet and cable rates and choices,” Maxcy said, voicing his hesitancy about a deal that merges the nation’s two largest cable providers. “As that industry has gotten more consolidated over time, we have seen rates go up. The answer from them is that we’ve got more choices. Are we better off or not better off? I don’t know, but certainly rates have gone up at a much faster rate than the inflation rate. The result of more monopoly power is always higher prices and less choices and it seems that this merger moves in that direction.”

“The threat from non-network content providers is a concern for the cable industry,” Maxcy added.

“We’re moving to a situation where we don’t need cable, but we still need the internet and the cable companies are the ones that have control of that,” he said. “Consolidating them together makes them more competitive against the outside forces, but the other argument makes the whole thing less competitive so they’ll have more ability to control the access to Netflix, YouTube and the like. People that may develop other similar sorts of services will have a hard time getting the access they would like to purchase those.”

Chris Stigall spoke with economist and Temple professor Joel Maxcy on Talk Radio 1210 WPHT in Philadelphia about Comcast’s attempt to purchase Time Warner Cable and what that means for consumers. Feb. 18, 2014 (12:10)
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