A federal judge decided yesterday that AT&T may buy Time Warner’s video and motion picture content companies, including HBO, CNN and the Warner Brothers movie studio. Judge Richard Leon, who was appointed by president George W. Bush, put no conditions on the acquisition. He simply ruled “the government’s request to enjoin the proposed merger is denied”.
The 172 page decision does an excellent of outlining the current state of the video distribution market. AT&T wants to buy Time Warner so its DirecTv and other video services – delivered via satellite and mobile and wireline networks – can better compete with the likes of Netflix, Comcast (which also owns an extensive stable of content companies) and Amazon. Leon’s decision picks apart, and ultimately rejects, the federal justice department’s claim that the deal would “substantially lessen competition in the video programming and distribution market”.
What the decision doesn’t do is examine AT&T’s ability to use its monopoly/duopoly control over consumer Internet access in the U.S. to freeze out competing programming and online content distributors, and to raise prices for captive subscribers. That concern is particularly high this week, with the end of federal network neutrality rules that might have prevented that kind of harm.
AT&T will use its online muscle to make the most of this $85 billion purchase, as Leon’s decision makes clear…
AT&T witnesses testified that they believe the company’s future lies in the use of online and mobile wireless connections to access premium video. As John Stankey, the AT&T executive who will be tasked with running Time Warner should the merger proceed, explained, AT&T acquired DirecTV in 2015 not in an effort to double down on the satellite business—a concededly mature and indeed declining asset—but to “pick up a lot of new customers that we could work on migrating” to new, innovative products necessary to compete in the future.
It’s possible that the federal justice department will challenge Leon’s decision, and could ask an appeals court to put the deal on hold while it’s under review. That’s all speculative, though. As of now, AT&T and Time Warner can close the sale next week as planned.
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.
The $26.5 billion dollar proposed purchase of Sprint by T-Mobile can’t go forward unless it’s given a pass by anti-trust watchdogs. As a practical matter, that means the federal justice department’s anti-trust unit sits on its hands and doesn’t challenge it in court, and the Federal Communications Commission signs off on the license transfers involved.
In theory, the California attorney general could jump in. In practice, that’s unlikely. So let’s set it aside for now. Unless there’s some obscure wireline telephone asset involved – anything is possible, but I don’t think so – the California Public Utilities Commission isn’t in the game either.
It’s down to the feds. And the likeliest source of opposition is the justice department’s anti-trust unit. It took on AT&T’s acquisition of Time Warner, although its lawsuit appears to be on the ropes.
The question is whether combining T-Mobile and Sprint into one company makes the U.S. mobile telecoms market significantly less competitive. Right now, they are two of the four mobile carriers that are worth worrying about (the other two are AT&T and Verizon, but you knew that).
T-Mobile has 17% of the U.S. mobile broadband market; Sprint has 13%. Both are in the habit of making significant market gambles – unlimited data plans, for example – that the big boys, with roughly a third of the U.S. market each, are forced to match. That’s a significant benefit to consumers, even if it doesn’t warm shareholders’ hearts.
When you’re in imminent danger of falling off a market share cliff at any moment, you assess risk differently than someone with a comfortable third of the pie. Which is what the new T-Mobile would have. Allowing it that level of comfort would decrease the competitive pain of its new peers, as well as consumer’s competitive market pleasure. We’ll see if the federal justice department arrives at the same answer.
Update: the deal is done.
The competitive mobile broadband market might not be as red in tooth and claw in the near future. According to several media outlets, T-Mobile and Sprint, the number three and four mobile carriers in the U.S., are on the verge of announcing a merger. It’s the second time they’ve gone down this path. According to CNBC, this time it’s because the competition is too much for the smaller Sprint…
Talks most recently broke off late last year after SoftBank CEO Masayoshi Son decided he didn’t want to lose control of a combined company. Deutsche Telekom will own more than 40 percent of the new company, with SoftBank’s ownership just below 30 percent.
Several things changed over the last few months that led Son to change his mind, including greater synergies from lower corporate taxes, an increased understanding of how much 5G deployment will cost Sprint, and a rapidly changing competitive wireless landscape that now includes cable providers.
The big question – besides will they do it – is whether the federal government’s antitrust watchdogs will allow it. They scuppered AT&T’s 2011 attempt to buy T-Mobile because they deemed it anticompetitive. Duh.
This deal is more complicated. Arguably, a combined T-Mobile and Sprint would be a more formidable opponent for Verizon and AT&T, number one and two in market share with 35% and 33% respectively. Combined, T-Mobile and Sprint would have 30%, and be worth $26 billion.
On the other hand, it was the unlimited rate plans offered by the two smaller companies that forced the big boys to follow suit last year. Whether the merged company, with a market nearly even with the leader, would share have the same manic drive to catch up or would simply relax into a comfortable oligopoly is the key antitrust issue.
The marriage announcement, if it comes, is expected later today.
California is not the only state where lobbyists for mobile carriers and other big, incumbent cable and telephone companies are
giving stacks of cash offering somber advice to state legislators and getting huge gifts of public property in return. According to a couple of articles by Timothy Clark in Route Fifty, several other states are preempting local ownership of vertical infrastructure and municipal control of public right of ways.
In some states, the giveaway is even more generous than the California’s gift to telecoms lobbyists last year, senate bill 649. It was vetoed by governor Jerry Brown, who eased the pain by reinforcing AT&T’s and Frontier Communications monopoly in rural California with $300 million and, effectively, an end to similar subsidies for independent broadband projects. SB 649 would have set a blanket $250 a year lease rate for wireless broadband providers to attach cell sites and other equipment to city owned street lights. Depending on how you figure it, that’s something like one-fourth to one-half of the market rate.
In Texas, lawmakers went one better and sliced off a zero, setting the maximum municipal pole lease rate at $20 a year. The City of McAllen, Texas sued, claiming that the preemption violated the Texas constitution. McAllen is no stranger to fighting for municipal broadband rights, by the way. It drafted a “minority report” protest to the Federal Communications Commission over the way that industry lobbyists hijacked the Broadband Deployment Advisory Committee, and convinced San Jose and New York City to sign on.
According to Clark’s story…
“In our legal analysis,” [McAllen city attorney Kevin Pagan] said, “the law forces us to give gifts to private parties. It is forcing us to give access to our rights-of-way at far less than market value. What about other companies using the rights of way? They are paying higher rates, and why wouldn’t they say, ‘What about us?’”
The wireless telecom companies, he continued, “want access to the rights of way like public utilities, but they don’t want to be regulated like a public utility.” Pagan noted while the companies promote small-cell as cutting-edge wireless technology, the cells rely on a vast fiber cable network that comprises 90 percent of the system, largely strung on poles in the rights of way.
Georgia lawmakers also passed similar legislation, and a preemption bill is making its way through the Nebraska legislature.
As with subscriber numbers, there’s a big gap between the two biggest telcos in the U.S. – AT&T and Verizon – and the rest of the field when it comes to capital spending. Both companies are planning multi-billion dollar investments in their networks in 2018, according to a story by Sean Buckley in FierceTelecom, with AT&T planning to spend $25 billion on capital upgrades in 2018, while Verizon is looking at the $17 billion to $18 billion range.
That includes spending on their mobile networks as they move toward 5G upgrades. It’s a much different story for pure wireline plays.
Number three on the list – CenturyLink – barely hits a dime on the dollar versus AT&T, with $2.6 billion spent last year and a 2018 capital budget pegged at 16% of revenue, whatever that turns out to be. Its priority will be integrating newly acquired Level 3 Communications into its overall operations. According to the FierceTelecom story…
“We have to keep driving profitable growth,” said Glen Post, CEO of CenturyLink during the fourth quarter earnings call. “Most of it will be success based. The allocation of capital [will] shift harder in making sure it’s for return profiles that are higher, take advantage of our on-net footprint, and are predictable whether it’s a cost reduction or driving profitable margin growth.”
Translation: regardless of what we said in order to get regulatory approval of the deal, we’re going to bundle Level 3’s long haul fiber assets into CenturyLink’s monopoly business model. Adios dark fiber.
Frontier is a distant fourth, with a 2018 capital budget of between $1 billion and $1.5 billion and a number one priority of “finding ways to reduce costs”. In other words, it’s going to spend money on its infrastructure only when it absolutely has to – replace burnt out poles in Santa Barbara County, maybe? – or to meet self liquidating commitments, such as those it made to get $2 billion in federal Connect America Fund subsidies. Given Frontier’s possible plans to exit California, that might well be the best it can do.
Colorado has its own version of a state broadband infrastructure subsidy program. Governor John Hickenlooper signed three bills into law on Monday that, together, set up a grant program, funded by $100 million from taxes assessed for universal telephone service, that will pay for broadband projects in unserved areas (h/t to Fred Pilot at the Eldo Telecom blog for the pointer) . Those are defined as places where Internet service at 10 Mbps download and 1 Mbps upload speeds is not available.
In many regards the program is similar to the California Advanced Services Fund (CASF), particularly in its deference to incumbent telcos and cable companies, and the low rural standards they embrace. One notable difference is that last year California lawmakers set an even lower minimum speed – 6 Mbps down/1 Mbps up – as the good enough standard for rural Californians.
As in California, the Colorado program gives incumbent providers a right of first refusal over any proposed project, although at least it’s honest about calling it what it is. When independent Internet service providers submit applications, they’re required to provide the information directly to incumbents, who then have the opportunity to underbid the applicant. Additionally, areas where telcos, or other providers, are getting federal subsidies, including particularly money from the Federal Communication Commission’s Connect America Fund, are off limits. Again, as in California.
Unlike CASF, though, municipal broadband projects are not excluded from Colorado’s program, although only unincorporated areas and cities of no more than 7,500 residents are eligible for any kind of project. But Colorado isn’t giving muni projects a green light either: the program will be run by a “broadband deployment board” which has 15 voting members. Seven seats are reserved for “members representing the broadband industry”, including specifically telephone and cable company representatives, and three more go to state apparatchiks. Only three are designated for local agency representatives and two for members of the public.
The odds of the board doing anything that doesn’t suit telco and cable interests are very, very low.
Colorado senate bill 18–002, Concerning the Financing of Broadband Deployment, 29 March 2018.
Colorado house bill 18–1099, incumbent’s right of first refusal, 2 April 2018.
Colorado senate bill 18–104, permission to apply for FCC waiver asking that broadband subsidies be given to the State of Colorado, 29 March 2018.
Should low income areas be first in line for broadband subsidies? That’s a question that both the Federal Communications Commission and the California Public Utilities Commission are asking. The CPUC is considering giving priority for California Advanced Services Fund infrastructure grants to communities where median household income is at or below $49,200 a year.
The FCC floated that same idea last week. In the course of approving limits on allowable expenses for some subsidised rural broadband projects, it decided to take the next step and ask for public comment on possible approaches: giving eligible consumers a theoretical choice of providers through a voucher system, adding household income to the criteria for picking eligible areas, or even basing federal subsidies on a state’s ability to pay…
For example, should we target support not only to high-cost areas but low-income areas as well? Should we adopt means-testing within the high-cost program? Either approach could target support where it is needed most by focusing only on areas or consumers with lower household income. Should we award support for high-cost areas through a portable consumer subsidy or voucher? Would a voucher system increase the choices available to consumers? Should we target support to States with less ability to fund the deployment of broadband in rural areas? How should we identify States that are most in need of support, and how can we do so while avoiding perverse incentives? Are there other alternatives we should consider?
Two commissioners, who are usually on opposite sides of issues but sometimes find common ground, both support a means-tested approach to subsidies. Mignon Clyburn and Michael O’Rielly – democrat and republican, respectively – began pushing for it last year.
For them, the question boils down to whether taxes on phone service – specifically earmarked for rural broadband subsidies – paid by people living in low income, urban areas should go towards upgrading broadband service in high income exurbs or resort communities. The FCC is asking the public to offer suggested answers.
A national project to build fiber-to-the-premise infrastructure and offer it to any Internet service provider on a wholesale basis began in New Zealand in 2011, with an initial goal of reaching 75% of Kiwi homes and businesses. According to a study done by International Data Corporation, a research firm, and sponsored by Spark, the biggest NZ reseller of FTTP service, the build out has reached about 65% of NZ premises, and the goal is now to reach 87% by 2022.
A total of 92 resellers are using the wholesale network to offer retail service. The resulting competition resulted in a drastic drop in retail prices, according to the report…
New Zealand telecommunication’s structural separation and national broadband plan have created new constructs and market dynamics. The [Ultra Fast Broadband] initiative has commoditised fibre in New Zealand. Consumer fibre plan prices have plummeted from averaging over NZ$200 per month in 2013 to around NZ$85 per month as at February 2018.
In U.S. dollars, that’s a drop from $144 (or more) per month in 2013 to $61 per month now.
The report questions whether the current level of competition can be sustained. But it also shows that there’s a big gap between the a long tail of small competitors and the handful of market leaders who, presumably, have staying power. Five companies own 91% of subscribers, and all have complementary businesses that share much of the operating costs, including marketing and subscriber management. One is Spark, which is the legacy telephone company in New Zealand, two are mobile carriers – Vodafone and 2degrees – and two are energy companies.
Even if there’s a huge cull amongst the remaining 86 providers, the level of competition will remain high. Five companies competing to offer gigabit class Internet service for $60 or so a month is a robust market, far more competitive than the monopoly/duopoly conditions in nearly all of the U.S..
Different online video companies put it differently, but the net result is the same: if you want to watch 4K streaming video – aka ultra high definition – you need a broadband connection that reliably delivers 15 Mbps and has enough head room to support whatever other Internet traffic is passing in and out of your house.
A story by Rob Pegoraro in USA Today provides a run down of the 4K bandwidth recommendations from the two big dogs in the over-the-top video game…
- Amazon says “you need an Internet connection of at least 15 Mbps to watch videos in UHD”.
- Netflix recommends “an internet connection speed of at least 25 megabits per second to stream Ultra HD titles”. But it also says you’ll burn through 7 gigabytes an hour of your data cap. Taking rounding into account, that’s the same as saying you need a steady stream at 15 Mbps over the course of that hour.
Given that Internet service providers don’t really promise to deliver a particular service level – typically, speeds are offered up to a certain level – a 15 Mbps download package won’t cut it. So Netflix’s 25 Mbps recommendation is a little more realistic, assuming you’re the only person in your home and you turn everything else off.
That rate coincides with the Federal Communications Commission’s 25 Mbps down/3 Mbps up standard for advanced services capability.
It’s also where the market is heading. Big cable companies, which typically offer download speeds starting at 60 Mbps and frequently climbing to 200 Mbps or more, own 61% of U.S. broadband subscribers. Telcos, which have a 34% market share, struggle to get to 25 Mbps on even recently upgraded and well maintained copper systems.
With 4K television sets expected to be in half of U.S. homes by the end of next year, the gap between cable and telco market share, and the gap between cable-rich urban and telco-monopoly rural areas – will continue to grow.