Bizarre Court Ruling Helps Cable Broadband Monopoly Charter Tap Dance Around Merger Conditions

from the our-courts-might-be-broken dept

Eager to impose higher rates on its mostly captive customers, Charter Communications (Spectrum) has been lobbying the FCC to kill merger conditions affixed to its 2015 merger with Time Warner Cable. The conditions, among other things, prohibited Charter from imposing nonsensical broadband caps and overage fees, or engaging in the kind of interconnection shenanigans you might recall caused Verizon customers' Netflix streams to slow to a crawl back in 2015. The conditions also involved some fairly modest broadband expansion requirements Charter initially tried to lie their way out of.

But with the GOP having neutered FCC authority over broadband providers (including the axing of net neutrality rules), Charter obviously is eager to take full advantage. So on one hand, they've been engaged in some fairly dodgy lobbying of the FCC to scuttle the conditions, which already had a seven year sunset provision (they expire in 2 years anyway). On the other hand, the telecom-backed Competitive Enterprise Institute (CEI) took a different tack, and filed suit against the conditions, somehow convincing four Charter customers to sue under the argument the conditions (not the merger) raised consumer prices.

This being America, the telecom-backed think tank last week scored a favorable ruling thanks to the US Court of Appeals for the District of Columbia Circuit. In its ruling (pdf), the court completely bought into the CEI's arguments that conditions crafted by consumer advocates, aimed at protecting consumers, somehow hurt consumers. As such, the court vacated two of the conditions -- one banning Charter from having to offer lower-cost broadband plans, and one prohibiting ISPs from engaging in dodgy behavior out at the edge of the network (interconnection).

In its ruling, the court proclaims that the restrictions on interconnection drove up consumer prices:

"To begin, the condition plainly caused New Charter to forgo revenue from edge providers. Before the merger, Time Warner, the largest broadband provider among the merging companies, raised substantial revenue from paid interconnection agreements. So did Bright House. But the merger condition prohibits New Charter from using those same revenue sources."

But that's a misrepresentation of what the conditions did. If you'll recall, networks of all kinds for years engaged in settlement free peering. As incumbent ISPs faced more competition from the likes of Netflix in the TV space, transit and streaming video companies alike accused ISPs like Verizon and Charter of intentionally letting their peering points get congested to force companies to pay significantly higher rates if they wanted their traffic to reach an incumbent ISP's customers. The FCC's net neutrality rules and the merger conditions were fairly mild restrictions designed to prevent ISPs from using interconnection as a way to drive up costs for their competitors.

Whether you like the rules or their implementation, the argument that they harmed consumers is nonsensical, and it's not being made in good faith. Telecom mergers as a whole generally drive up costs. History is very clear on this point. Yet here we have the telecom sector and its think tank allies trying to claim it was the attempts to mitigate merger harms...not the damn merger itself that was the problem.

One of the other major conditions, a seven year ban on bullshit usage caps, was also singled out by CEI as some bizarre affront to consumer welfare. But the court refused standing on caps under the bizarre claim that Charter has purportedly no interest in imposing such profitable restrictions:

"Nonetheless, the consumers have failed to prove causation because there is scant evidence that New Charter would offer usage-based pricing if allowed to do so. Before the merger, its predecessor companies rarely offered it. Charter had specifically rejected it. Time Warner offered one plan with usage-based pricing, but abandoned efforts to expand the practice after “significant public backlash.” Id. at 6363. Bright House never offered it. Given the lack of evidence that New Charter’s predecessor companies had offered usage-based pricing before the condition was imposed, or that New Charter would offer usage-based pricing if allowed to do so, the appellants have failed to show traceability or redressability.

For one, the company's name is "Time Warner Cable," not Time Warner. And while it's good the court rejected the CEI's attempts to scuttle the ban on broadband caps (which again expire in two years anyway), the logic here doesn't make much sense either. It's abundantly clear that Charter is lobbying to kill these conditions in large part because not having them would allow the monopoly to raise prices. That this is something that's even debated by the court shows they don't really even understand the motivations of the players here. The only reason Time Warner Cable didn't succeed in capping usage previously was historic public backlash.

In short, a telecom monopoly-linked think tank filed a lawsuit claiming that post-merger prices went up because of some pretty modest conditions specifically designed to try and prevent that. And the courts, which routinely reject consumer group lawsuits built on far-more concrete logic, bought into that reasoning entirely (in large part because the Trump FCC refused to defend them). Nowhere does the court even faintly recognize the lawsuit is in bad faith. Nor does the court recognize that Charter lied so frequently about its adherence to the merger conditions it was almost kicked out of New York State.

It's another example of why it's often far easier to just ban problematic mergers, instead of trying to rely on a bunch of conditions that are difficult to enforce, don't fix what they profess to, aren't permanent, or can't be enforced due to regulatory capture and a slow but steady erosion of the U.S. court system.

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Filed Under: broadband, broadband caps, competition, data caps, fcc, interconnection, merger conditions, net neutrality, overage fees
Companies: charter spectrum, chater, time warner cable

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  1. identicon
    Pixelation, 21 Aug 2020 @ 6:57am

    Long shot

    Can consumers band together and appeal this decision?

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 21 Aug 2020 @ 7:15am

    If the resulting company is too large to fail, it is too large

    Too large to fail should automatically translate into too large to exist. Break up the existing companies, stop pretending it benefits anyone but the shareholders by merging and increasing prices while removing jobs.

    reply to this | link to this | view in thread ]

  3. icon
    Coyne Tibbets (profile), 21 Aug 2020 @ 7:29am

    Empty-headed rulings

    Only the DC court could hear "having to offer lower-cost broadband plans [to consumers]" and conclude that is bad for consumers.

    Upcoming ruling from the court: The prohibition on converting consumers to Soylent Green is bad for consumers.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 21 Aug 2020 @ 8:04am

    How much were the judges paid to deliver this judgement? I mean no one with the supposed sense, education and legal knowledge that they have could reach the said conclusions for free, surely!

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 21 Aug 2020 @ 8:12am

    at this point, a police force somewhere is going to claim strangling black people on the streets or shooting them in the spine from 300foot away was HELPING black people obtain civil rights.

    I wonder JUST how much cold hard cash was in the envelopes slipped to these judges since they painfully OBVIOUSLY took bribes

    reply to this | link to this | view in thread ]

  6. icon
    That One Guy (profile), 21 Aug 2020 @ 9:10am

    'Why would they care about money more than their customers?'

    Judges really need to get their heads out of their asses and stop simply accepting as fact any statement provided by any corporation that ends up in court, because the most generous interpretation I can think of for judges buying the arguments here is that they are so incredibly naive that they honestly cannot even fathom why a company wouldn't put their customers first and only care about profits after, and someone that blindingly oblivious really has no job being a judge.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 21 Aug 2020 @ 9:49am

    Re: If the resulting company is too large to fail, it is too lar

    You need more than just too large to fail to justify breaking up a corporation, as all that will do is repeat the history of the bell breakup. Recognize the fundamental problem, which is that owning the infrastructure, whilst also being a cable provider and ISP involves a fundamental conflict of interest.

    Providing Internet connectivity and ISP services, whilst also being a cable company, means that you are enabling competitors to your cable business to reach you cable customers. With the added convenience of watch when you want, rather than when scheduled, Streaming services are replacing cable services. Data caps, and connection shenanigans are attempts to keep cable subscribers, by increasing the cost and decreasing the usability of streaming services.

    A break up will only work if it is used to separate infrastructure from service provision. Creating a lot of small Carters and Comcasts etc. with a local monopoly will not end the use of data caps and connection shenanigans to protect the cable part of the business from the competition of streaming services.

    reply to this | link to this | view in thread ]

  8. icon
    ECA (profile), 21 Aug 2020 @ 2:06pm

    I find it hillarious..

    Its funny that Corps seem NOT to see things.
    Its as if they are in a bubble of their own creation.
    They dont see whats going on, mostly because they cant see the Whole thing, or experience what is happening around them.

    Live OUTSIDE of your ring of influence. Notice what is happening. Or shoot yourself in the foot. Then the knee, then??
    they are so short sighted, that they give the best service to those important/and themselves, and forget about everyone else. And what THEY do to bypass the small failures of THAT system.

    Something said awhile back about these corps. They want it NOW. They dont want to experiment, test and trial. They want to by something already created that will WORK in an instant. But those services do REALLY well, have built themselves up, taken the time to figure things out and MAKE it work. Created Programs to make things easier, and FEW know how it works from the outside.
    ITs a Short history of watching all the Video sites go up/down and end up in courts. Its like building the Whole infrastructure to get Youtube running, and how things are working INSIDE..(its very interesting how they are doing things)(try looking up 5+ year old vids). Hulu was an experiment. They had contracts always changing, they never took advantage of the Movie corps, They fought with Adblockers, and were Finally taken over. Even Crackle was taken by Sony... There are a TON of movie sites NOW, on the net, that you dont need Roku. But Roku has gathered them into 1 BIG PILE. They dont hold/carry/show the movies, they just ROUTE you to the data on the net.

    As I said before. CABLE/SAT/PHONE/CALL, wants everything NOW. And if they had 1 simple idea it would have benefited them to look into the smaller companies, NOT the major corps Who over rate themselves. Its like buying a USED car..Thinking it will run like new, NOT ON YOUR LIFE, as TECH has changed, and DEQ will have things to say about that exhaust system. You wre buying SOMEONE ELSES problems...and they have been treating the system THE SAME as you have. you are Adding to your problems. Insted of fixing your CAR or Buying a NEWER version.

    good luck on this. as you cant tell them they CANT do that. There is only a few reasons to do what they have done.

    reply to this | link to this | view in thread ]

  9. icon
    brad (profile), 21 Aug 2020 @ 5:03pm

    Re: Empty-headed rulings

    Empty headed, but not empty handed... These people aren't dumb at the level they have gotten to, when "dumb" decisions are made counter to the obvious reality I assume someone's gettin paid

    reply to this | link to this | view in thread ]

  10. identicon
    james t, 2 Jan 2021 @ 3:51pm

    spectrum is simply a monopoly. monopolies should not exist. when they physically destroy the ability for any other company to exist, and then raise prices constantly, while providing NO customer service like they should be upheld to do. there should be a system in place. federal mandated site like bbb that actually has the ability to break apart a company that is in non compliance in terms of appeasing customers that are able to show they are a customer that has been in continuous disdain. and/or having been price gouged because there is nothing else around. like private insurance should be banned. health care should be mandated and free. our country is part of the same trash spectrum and big business is. its all to help their pockets. not care about us.

    reply to this | link to this | view in thread ]

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