Tag Archives: competition

If you don’t stop it, fix it, justice department tells AT&T-Time Warner trial judge

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It’s up to a federal judge to decide whether or not AT&T can buy Time Warner, and all the content and video channels that come along with it. The federal justice department tried to make the case that the deal would be anti-competitive and should be blocked. AT&T, naturally enough, claimed it wasn’t.

Some experts who followed the trial closely thought AT&T made the better case. The justice department has to prove that a vertical merger – when a company buys its supplier – would have the same destructive effect on competition as a horizontal one, when a company buys a competitor. That’s a tough sell, and it seems that justice department lawyers aren’t counting on total victory. In its closing brief, the justice department offered Plan B: a “targeted divestiture” – either allow AT&T to buy some of Time Warner’s content assets (HBO and Warner Brothers, but not Turner channels) or force it to give up ownership of DirecTv.

Usefully, the justice department argued strongly for a “structural”, rather than a “behavioral” remedy. The difference is that a structural solution involves a permanent change – divesting DirecTv or not acquiring Turner, for example – while a behavioral change only involves a promise not to do bad things in the future…

While structural relief eliminates the risk of harm, behavioral relief assumes regulatory conditions can effectively constrain a business’s natural incentives to maximize profits…Behavioral relief is also less effective at protecting competition than structural market-oriented remedies because it “can hardly be detailed enough to cover in advance all the many fashions in which improper influence [over the acquired company] might manifest itself.”

Just so. Behavioral remedies require ongoing oversight by regulators with little experience or interest in the business at hand, and lead to perpetual evasion by corporate execs and lawyers with all the incentive and resources in the world.

A decision is expected by mid-June.

PG&E must put all its fiber on the market, not just the bits it, or others, want sold

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PG&E agrees with many of the restrictions that the California Public Utilities Commission’s office of ratepayer advocates (ORA) wants to put on its proposed telecommunications business plan. Without knowing the details of PG&E’s 2,600 mile fiber network in northern California, it’s impossible to know whether that climb down is a strategic retreat or a concession rendered meaningless by the simple facts of its infrastructure or business plan.

The CPUC is reviewing PG&E’s application for certification as a telephone company. Over the years, PG&E has built up an inventory of fiber optic assets, either because it had internal communication needs or because another telecoms company swapped fiber strands for access to PG&E’s electricity transmission and distribution infrastructure. It wants permission to put those assets on the market, either as simple dark fiber or the medium for lit transportation services.

ORA wants to ban PG&E from “using fiber lines installed in the power zone” of utility poles for its dark fiber and lit service business. The power zone is the uppermost area of poles, where wires used for electric service are installed. The area below it, where cable and telephone companies attach their wires, is the communications zone. But that’s only on poles used for distribution of electricity – low voltage, last mile service in telecoms terms. Poles used for transmission of electricity – middle mile, in other words – don’t have a communications zone. Any fiber installed on transmission infrastructure is, by definition, in the power zone.

The conditions proposed by ORA are in the context of utility poles used “for network distribution”. If what ORA wants and what PG&E is agreeing to only involves fiber installed on poles used for distribution, and not on transmission poles, or conduit of any kind, then it might be no big deal. PG&E might not have a significant amount of fiber in the power zone of local distribution poles. That’s an expensive proposition, compared to installing fiber in the communications zone, where safety concerns are fewer and construction costs are less. So it might not make a difference either to PG&E’s business plan or to its ability to be a competitive counterweight to telecoms incumbents with monopoly business models.

But if those conditions affect more than a trivial amount of last mile fiber, or in any way restrict PG&E’s ability (or willingness) to sell access to middle mile routes on its vast transmission infrastructure – the crown jewel of its network – then the CPUC should reject them. Instead, the CPUC should treat PG&E as the incumbent it is: all of its fiber should go on the market. Otherwise, allowing it to act as a telecoms company will not “enhance competition in the public interest”, as PG&E claims.

PG&E rebuttal testimony regarding its CPCN application, 8 December 2017

CPUC review of PG&E telecoms plan must focus on big picture, not narrow interests

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Three groups filed testimony with the California Public Utilities Commission opposing PG&E’s plan to put its 2,600 miles of fiber on the market, as dark strands and for lit service (links are below). Caltel, a lobbying group for telecoms resellers – CLECs – offered quibbling and self-interested comments. The two others – the CPUC’s office of ratepayer advocates and TURN, an old school utility consumer advocacy organisation – urged the CPUC to either reject the plan or cripple it with nonsensical restrictions, on the basis of an outdated and narrow view of what utility regulation is all about.

For TURN and ORA, it’s about micromanaging PG&E’s fiber in the same way as its regulated, monopoly electric and gas business. They give no thought to the benefits of having an independent source of dark fiber or lit service in northern California. ORA and TURN make one dimensional arguments about what might or might not be fair to PG&E’s electric customers and, remarkably, to big incumbent telecoms companies, while ignoring the fact that electric consumers are also broadband and telephone subscribers. Protecting broadband companies that exercise unregulated monopoly and duopoly control over prices and products from PG&E’s limited competition will only hurt consumers.

Dark fiber is a critical resource for independent, competitive telecoms operators. Thanks to the CPUC’s reliance on TURN and ORA – instead of exercising its own initiative – CenturyLink will be rolling Level 3 Communications’ previously independent dark fiber into its monopoly-centric business model over the next two years. Ironically CenturyLink controls a significant amount of the capacity on PG&E’s fiber routes, via its acquisition of Level 3-owned IP Networks. The CPUC would not be serving the public interest if it protected CenturyLink’s monopoly by locking PG&E out of the telecoms business, or restricting its ability to fully use the fiber it owns.

The CPUC has the responsibility to maximise value, quality and availability across a range of utility services for Californians, individually and for the economy as a whole. It should fulfil its responsibility by independently evaluating all the pluses and minuses of PG&E’s telecoms plan, and not relying solely on the arguments of narrow interests.

Caltel testimony regarding PG&E CPCN application, 22 November 2017
Office of Ratepayer Advocates testimony regarding PG&E CPCN application, 22 November 2017, part 1
Office of Ratepayer Advocates testimony regarding PG&E CPCN application, 22 November 2017, part 2
Office of Ratepayer Advocates testimony regarding PG&E CPCN application, 22 November 2017, part 3
TURN testimony regarding PG&E CPCN application, 22 November 2017

Justice department picks up free market ball as FCC drops it

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Cable and phone companies may soon be free of any obligation to meet common carrier standards of behavior, but that doesn’t necessarily mean they can exert their monopoly muscle on the broadband market without fear of consequences.

Last week’s other big broadband story offers hope of an even more effective counterweight to broadband monopolies: anti-trust law. When the federal justice department sued to block AT&T’s takeover of Time Warner, it made a clean break from recent practice and went after the root cause of the problem – pursued a structural remedy – instead of nibbling around the edges with temporary and often tangential behavioral restrictions on the companies. It’s a strategy – and philosophy – outlined in a recent speech to the American Bar Association by Makan Delrahim, the new assistant attorney general in charge of anti-trust enforcement…

Like any regulatory scheme, behavioral remedies require centralized decisions instead of a free market process. They also set static rules devoid of the dynamic realities of the market. With limited information, how can antitrust lawyers hope to write rules that distort competitive incentives just enough to undo the damage done by a merger, for years to come? I don’t think I’m smart enough to do that.

Behavioral remedies often require companies to make daily decisions contrary to their profit-maximizing incentives, and they demand ongoing monitoring and enforcement to do that effectively. It is the wolf of regulation dressed in the sheep’s clothing of a behavioral decree. And like most regulation, it can be overly intrusive and unduly burdensome for both businesses and government.

The justice department’s complaint called out the problem. When Comcast bought NBC-Universal – a similar deal – the justice department and the Federal Communications Commission extracted promises of good behavior. Some targeted direct, anti-competitive problems, while others went after unrelated side benefits, like discounted broadband rates for low income households. But it won’t matter much longer whether those promises did any good: they all expire next year. Comcast will be free to be, well, Comcast.

The justice department is taking a better approach with AT&T and Time Warner. It’s trying to avoid damage, rather than ineptly mopping up around the edges. The same thing happened with CenturyLink’s takeover of Level 3 Communications. The combined company is giving up dark fiber strands on 30 key long haul routes. It’s arguable whether that’s sufficient, but it is a structural cure aimed at preventing a monopoly from forming. The contrast with the weak and irrelevant behavioral conditions imposed by the California Public Utilities Commission is stark.

The broadband market in the U.S. is mostly a mix of outright monopolies and cozy duopolies, which are themselves collapsing into monopolies as cable companies outstrip telcos’ ability to deliver broadband at the federal advanced services standard of 25 Mbps download and 3 Mbps upload speeds. The Federal Communications Commission is determined to let that happen. With its new found zeal for trust busting, the justice department is the unexpected last line of defence.

Feds flex anti-trust muscle and sue to block AT&T-Time Warner deal

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The federal justice department challenged the proposed merger of AT&T and Time Warner in court yesterday, on anti-trust grounds. The problem, according to the justice department’s complaint (h/t to Brian Fung at the Washington Post for the pointer) is that if it owns the entire content creation-ownership-distribution chain, AT&T will use that market power to muscle out its competitors, – traditional linear distribution companies and emerging over-the-top players alike…

If allowed to proceed, this merger will harm consumers by substantially lessening competition among traditional video distributors and slowing emerging online competition. After the merger, the merged company would have the power to make its video distributor rivals less competitive by raising their costs, resulting in even higher monthly bills for American families. The merger also would enable the merged firm to hinder the growth of online distributors that it views as a threat to the traditional pay-TV model…

AT&T/DirecTV perceives online video distribution as an attack on its business that could, in its own words, “deteriorate the value of the bundle.” Accordingly, AT&T/DirecTV intends to “work to make [online video services] less attractive.” AT&T/DirecTV executives have concluded that the “runway” for the decline of traditional pay-TV “may be longer than some think given the economics of the space,” and that it is “upon us to utilize our assets to extend that runway.” This merger would give the merged firm key, valuable assets, empowering it to do just that.

The core problem, according to yesterday’s filing is the proposed combination of DirecTv, which, when combined with AT&T’s Uverse service, is the nation’s largest television distributor, and Time Warner’s Turner networks. That lends credence to reports over the past couple of weeks that federal anti-trust lawyers wanted AT&T to give up one or the other in order to avoid going to court.

AT&T isn’t backing down. It’s immediate response was to call the lawsuit “a radical and inexplicable departure from decades of antitrust precedent”.

Short on dark fiber inventory, PG&E moves toward selling lit service

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PG&E has revealed more details about its telecommunications business plan. In testimony filed with the California Public Utilities Commission, as it seeks permission to expand its telecoms service offerings, PG&E reiterated that it has no intention of offering residential fiber to the home service, or otherwise competing in the retail space. But its motivation for providing “lit” fiber service to wholesale customers appears to be greater than previously assumed. And so is its interest.

Right now, PG&E is leasing dark fiber – bare strands of glass – to a few customers, either fiber it installed on its own poles, towers and conduit for its own use, or installed at a telecoms company’s request (and expense). There’s not much more of that inventory available, though. Of the 2,600 miles of cable it owns, only 1,000 miles has spare capacity that might be leased out. On average, that spare capacity amounts to only about 4 fiber strands, enough to offer two customers a pair of dark strands each.

Although it doesn’t make a direct connection to this very restricted dark fiber supply, PG&E clearly states that it intends to move up the value chain and offer lit fiber service. Which would allow it to serve many customers on a single pair of fiber strands…

PG&E proposes to offer “lit fiber” and other services (as market demand and availability of PG&E facilities allows) to third-party communication services providers, communication companies, and large institutional (wholesale) customers that need point-to-point services along routes where PG&E can make lit fiber available. Lit fiber is fiber optic cable that has electronic equipment (such as transmitters and regenerators) connected to it to “light” the fiber, enabling the transmission of data. In providing lit fiber, PG&E would be the service provider, owning and maintaining the equipment to light the fiber. The customers would be free of the maintenance and operation of the equipment. This contrasts to the dark fiber services that PG&E currently provides where the customers are responsible for providing and maintaining the equipment that lights the fiber.

Mobile carriers and infrastructure companies are called out as particularly good prospects. PG&E sees a sweet spot in providing long haul connectivity, via lit fiber, to mobile and other telecoms companies that need to tie a lot of far flung locations into their core networks.

The U.S. mobile broadband market is competitve, says FCC

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The Federal Communications Commission has made a case for declaring that the mobile broadband market in the U.S. is broadly competitive, in a qualitative, preponderance of the evidence sort of way. Looking at a number of different metrics, including usage (see chart above), pricing, advertising, investment coverage, the FCC decided that when it was all added up, the result was “there is effective competition in the marketplace for mobile wireless services”.

One key indicator – half statistical, half anecdote – was the way the four major nationwide carriers responded to each other when unlimited data plans were reintroduced…

One significant trend that has developed recently is the return of “unlimited” data plans. In January 2016, AT&T introduced the AT&T Unlimited Plan for DIRECTV (or U-Verse). While that plan was made available only to DIRECTV subscribers, it signaled a shift towards service providers again offering unlimited data plans. In August 2016, T-Mobile launched the T-Mobile ONE Plan offering unlimited voice, text and high-speed 4G LTE smartphone data. The next day, Sprint introduced its Unlimited Freedom plan, which offered two lines of unlimited talk, text and data for $100 a month. In February 2017, Verizon launched its Unlimited Data Plan offering unlimited data on smartphones and tablets for $80 a month. AT&T then introduced the Unlimited Choice plan, which offered unlimited data for $60 per month for a single line ($155 for four lines). In late February 2017, U.S. Cellular introduced its own unlimited data offering.

Three caveats should be kept in mind, though. For the past eight years, the FCC used a wide definition of the mobile marketplace, including sectors such as consumer devices and industry infrastructure. This latest finding focuses much more narrowly on consumer services.

Then there’s the question of rural versus urban. Although 98% of people living in suburban and urban areas have access to at least four mobile service providers, only 71% of those in rural areas do. A competitive mobile marketplace might exist for the U.S. as a whole, but it’s not evenly distributed.

Finally, there’s the question of defining what “effective competition” means. In this report, which was approved by commissioners on a party line vote, the question is largely sidestepped, relying instead, as commissioner Jessica Rosenworcel wrote in her dissent, on an “I know it when I see it” standard.

FCC doesn’t know enough about competition, or lack thereof, says GAO

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The Federal Communications Commission needs better information about broadband competition, according to a report by the federal government accountability office. Existing data shows that 51% of U.S. residents only have access to one provider that offers at least a minimum level of broadband service, which the GAO defines using the FCC’s own advanced services standard of 25 Mbps download and 3 Mbps upload speeds.

The agency collects a lot of data, including information about how many broadband providers serve a given market, but not key information about prices and service offerings, the GAO report said

As indicated by FCC’s broadband data, competition does not exist in all areas. As discussed above, about half of Americans have access to only one fixed broadband provider, and although most Americans have access to multiple choices for mobile broadband service, FCC and experts acknowledge that fixed and mobile service are not fully substitutable for one another…

FCC’s data and reports, as discussed, provide information on the extent of broadband deployment and other indicators of consumer experience with broadband service, but these data and reports do not show how broadband prices and service quality vary based on the number of choices that consumers have for broadband service. FCC officials told us that it is difficult to assess the effect of competition on broadband price and service quality without data showing prices and service quality indicators by the number of providers in a given area.

The FCC considered collecting price and product information in 2011, but gave up on the idea after industry lobbyists pushed back. As a substitute, the GAO report recommends soliciting “the views of stakeholders and others” on an annual basis.

The problem with this approach is that FCC regularly receives input – sometimes a flood of comments – on a wide variety of topics, but doesn’t systematically and transparently assess them or consistently incorporate them into decisions. And it’s not above cherrypicking submissions that suit politically driven, predetermined positions.

The GAO is too optimistic. Qualitative opinions and anecdotes are no substitute for hard data.

PG&E’s bid to be a fiber company gets a long review

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PG&E will have to explain how it manages requests from telecoms companies to hang cable and other equipment on its utility poles, as the California Public Utilities Commission reviews its application to become a fully certified, commercial fiber network operator. After a meeting with PG&E and the companies and organisations that have raised objections to PG&E’s move, the administrative law judge, Jessica Hecht, and the commissioner, Liane Randolph, handling the review laid out a year-long review schedule that identifies the issues that will be addressed.

Among them is guarding against the possibility that PG&E will use its control of utility poles to put competing telecoms companies at a disadvantage. PG&E is being required to disclose…

  • Internal policies and procedures for reservation of space in and on PG&E support structures, and include forecasts for future reservation needs, if any, to accommodate its anticipated telecommunications services.
  • Statistics showing the mean and median times PG&E currently takes to respond to requests for access to its support structures, and for completing any rearrangements required to accommodate other attachers’ attachments.

Other concerns include how PG&E will split the money it makes from its planned fiber business. Some of the objectors want most of it to be funnelled back to electric customers, presumably in the form of lower rates, while PG&E is proposing a 50/50 split of fiber profits. Several of the topics under review have to do with how PG&E will keep a relatively unregulated telecoms unit separate from its highly regulated energy business, including maintaining security and safety standards, and avoiding cross-subsidies between two very different kinds of enterprises.

In general, PG&E will have to provide a lot of details about its fiber business and operations plans to the CPUC, although some of that information will likely be kept confidential.

PG&E adopts a dark fiber and wholesale telecoms services business model

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The low ball fiber business plan that PG&E submitted to the California Public Utilities Commission drew criticism from several organisations that probably didn’t fully understand it – publicly traded companies usually downplay the profit potential of new ventures, to avoid hyping stocks and running afoul of federal securities laws. In its application for certification as a telecommunications company, PG&E estimated that it "will have approximately 1-5 customers after one year and will have more than 5 customers by the fifth year after commencing provision of the services". That led to speculation that there was some kind of backroom bargaining going on with incumbent telcos or other big carriers.

Not so, said PG&E in its formal reply to that criticism

The key public interest benefit resulting from PG&E adding services to its existing offerings is that it increases the supply of those services at competitive prices, which means there will be more competition in both the wholesale and retail markets, which will in turn result in more innovation and lower prices. Therefore, PG&E’s CLEC will benefit competition and is in the public interest. Certain interveners may have misinterpreted PG&E’s low estimate of the initial number of customers as a limit or cap. But this was a conservative estimate, as PG&E does not want to over-promise and then under-deliver on the benefits of adding new services to its existing offerings. However, PG&E does not intend to limit itself to this estimated number of customers. PG&E will evaluate the economics of serving any non-residential, qualified customers and will provide service to those for whom it is economical to do so. As a financially and operationally qualified provider that would leverage existing assets to offer additional telecommunications at an incremental cost that will benefit its telecommunications customers, PG&E’s expansion of services will benefit competition. PG&E does not claim these benefits will appear overnight, but expects that the competitive benefits will materialize over a few years.

It also stated flat out that "after becoming a [certified telecoms company], PG&E will continue to offer a dark fiber product". And that its wholesale customers could very well include broadband providers that want to offer competitive service to residential customers. Access to high capacity, low cost Internet bandwidth can be a substantial roadblock for entrepreneurial service providers. Where it becomes available, such as along the Digital 395 corridor in eastern California, consumer-level competition follows. The CPUC should simply take PG&E at its word and make its promises legally enforceable.