Antitrust Lawyers Lean Towards Blocking Comcast Acquisition of Time Warner Cable

Staff attorneys at the Justice Department’s antitrust division are nearing a recommendation to block Comcast Corp.’s bid to buy Time Warner Cable Inc., according to Bloomberg. At least initially, many observers believed the deal would be approved, in large part because the relevant market was deemed to be “linear video.”

Comcast said it would divest enough video customers to keep the company’s share of the national market at or below the 30-percent threshold historically applied by antitrust authorities.

The problem, others pointed out, is that video increasingly is not the relevant market. That would be market share in the high speed access market, where a combined Comcast and Time Warner Cable would have about 40 percent share of the high speed access market, and an incomparably high share of faster speed connections, even before Comcast upgrades all U.S. locations to a gigabit.

If the Comcast acquisition were allowed, Comcast would have more than 57 percent market share of all U.S. high speed access connections operating at 25 Mbps or faster.

Looking only at homes able to buy gigabit high speed access, Comcast would, at more than 21 million locations, vastly outstrip all other gigabit providers put together. If one assumes that networks capable of a gigabit, supplied by all other competitors, could soon pass half a million U.S. homes, Comcast would represent 98 percent of all connections.

That is likely to be too great a degree of concentration for antitrust lawyers.

50th Anniversary of Moore's Law (Which Shockingly Applies to Internet Access Bandwidth)

April 19, 2015 is the 50th anniversary of the publication of an article by Gordon Moore about chip densities that later became what we call “Moore's Law.”

Roughly, the principle has been that chip densities double about every 18 months to 24 months. That has meant the cost of any fixed amount of computing or storage declines by roughly half over that same period of time.

Little noticed, by most aside from Reed Hastings, Netflix CEO, is that Internet access speeds follow a development curve nearly as robust as Moore’s Law does in the computing appliance and processor space.

In other words, access bandwidth nearly doubles about every 24 months.

Logic seemingly would suggest that is unlikely. Communications networks--especially those of the fixed variety--are expensive construction projects.

Such networks also are subject to local, state and national regulations, interest rates, economic conditions, changes in tax laws and changes in demand curves, all of which should slow rates of change, compared to rates of change for semiconductor products that follow Moore’s Law.

Shockingly, then, some studies have shown that even on twisted-pair copper telephone networks, speed doubled about every 1.9 years.

Other studies show similar results: some say an Edholm's Law shows that Internet access bandwidth does increase as Moore’s Law would predict.

That rate of increase of Internet access bandwidth is why some of us have been sure that consumer access bandwidths in the U.S. market, for example, would reach gigabit speeds, widely, by perhaps 2020.

That is a simple extrapolation of trends that have been in place for decades.

To reemphasize the point, between 1984 and 2013, fixed access network speeds have grown nearly as fast as Moore’s Law would suggest, as crazy as that sounds, knowing the physical nature of access networks, which are construction projects, not software apps.

Some might argue that mobile bandwidth will not scale as fast as fixed network bandwidth. Some of us believe that is wrong, and that mobile bandwidth has, an will, increase at the fixed network rates.

Consider that the coming fifth generation mobile network standard calls for 10 Gbps per end user. At that point, mobile networks will for the first time be functionally the equivalent of fixed networks, in terms of peak speed or average speed.

Still, the data is stubborn and clear: Internet access bandwidth has grown about 50 percent annually since 1984.

"No Business Model" Problem Migrates from Rural to Urban Areas

Among the fundamental problem for communications service providers and policymakers looking at services in rural areas is that there essentially “is no market.” That is to say, the number and density of potential customers is insufficient to drive revenue, while the higher cost of building plant means the hurdle rates for standard investment are lacking.

There is, simply, “no business model.” So, historically, communications services in rural areas are subsidized, both in terms of capital and operating costs.

We are seeing new versions of that issue, but relating to gigabit Internet access, even in downtown cores of smaller communities without a huge enterprise or mid-market firm presence.  

In many cases, even potential small fiber networks involving only 20 miles of plant are deemed uneconomic. In a growing number of cases, municipalities are looking for ways to subsidize such municipal networks on their own.

When no commercial suppliers (independent Internet service providers, competitive local exchange carriers and others) either cannot construct a viable business model, or can do so, but cannot secure capital to do so, municipal networks might be the best choice for fast action.

The emerging model seems to involve municipalities contributing assets (conduit, access, permitting) but not running the networks or providing taxpayer funding.

Cost control also appears to be among the potential success factors. If conventional business models do not work, and capital costs can only be reduced so much (by governments contributing conduit, for example), then operating costs must be tightly controlled.  

Verizon Communications Goes "Skinny" with Linear Video Bundle

Eventually, customers in competitive markets get what they want.

Though many would contest the characterization of the linear video business as “competitive,” it appears to be competitive enough to spur moves in the direction of giving people “what they want, when they want it.”

That is why over the top streaming services are proliferating. Another sign of the change is the move to create “skinny” bundles of linear channels that cost less, since consumers are signaling by their behavior that they consider the existing product too expensive, compared to the value they receive.

Verizon Communications, for example, has launched a new "Custom TV" bundle featuring high speed access and 36 basic (ad-supported) channels, with the option to buy genre-based channel packs, such as a sports bundle or kids channels.

Users can add extra packs for $10 each, or swap or unsubscribe any pack after 30 days. Verizon has seven channel packs in total.

Starting April 19, 2015, consumers will be able to sign up for a package of TV channels including broadcasters such as ABC and Fox, CNN, AMC, Food Network. They can then add on “channel packs” covering various genres such as sports, kids, pop culture and lifestyle.

FiOS’s cheapest plan will cost $55 a month and will include two channel packs. Each additional package, which can consist of about 10 to 17 channels, will cost $10 a month.

A package featuring the base package, two channel packs and 50 Mbps Internet access service costs $75 a month.

Though not a full move to a la carte pricing and buying of linear channels, the Verizon move is part of a trend that eventually will lead to new sets of choices that more closely resemble full choice, channel by channel or program by program.

WhatsApp Adding Video Communications, After Voice?

Facebook-owned WhatsApp, after having introduced voice communications, now seems set to add video communications.  That illustrates a pattern we now have become quite familiar with. A would-be disruptor enters a market, at the low end, and is dismissed as “a toy.”

The new app or service does not have anywhere near the features of the incumbent products, but the new product offers high enough value to solve a problem, generally at very low cost (free app, for example), or at least costs noticeably lower than the market level (cable TV voice, high speed access).

Over time, the new product adds more features. One day, the attacking product is feature by feature equivalent to the incumbent products. That pattern of disruptive innovation now clearly can be seen at WhatsApp, transitioning from an instant messaging product to a full communications platform.   

Space X "Falcon" Booster Almost Makes Landing

Once the technique is perfected, the cost of satellite launches will fall, since boosters can be reused. 

Star Wars Episode VII: Yay!

CenturyLink Adds Another Gigabit Community

It can be argued that if a firm is a provider of fixed telecom network services; does not own mobile assets; has a normal mix of consumer and business accounts and does not intend to sell its assets, exiting the business, then high speed access holds the key to survival, and any hope for prosperity.

CenturyLink might now be among the best example of that strategic imperative. CenturyLink has been aggressively launching symmetrical gigabit services across its service territory, most recently adding La Crosse, Wisc. to the list of communities able to buy the service.

Since 2013, when CenturyLink lit its first gigabit network in Omaha, CenturyLink in 2014 announced neighborhoods in 16 cities would get gigabit networks.

Residential customers can purchase 1 Gbps service for a monthly recurring charge of $79.95 with a 12-month term commitment and when bundled with additional, qualifying CenturyLink services. Stand-alone prices are likely to be in the $130 a month to $150 a month range.

What If No Business Case for Gigabit Metro Networks Exists?

One has to wonder why a concentrated 20-mile downtown fiber network apparently was not financially interesting to a single U.S. fiber specialist, Internet service provider or competitive local exchange carrier, causing San Leandro in 2011 to create and build its own fiber backbone serving the downtown area.

The likely answer is that commercial suppliers could not create a business case. And that might be the story for such networks: they might wind up being built because no single commercial service supplier actually can earn a financial return.

A federal grant of about $2 million, for example, was used to build 7.5 miles of the initial 18-mile core network, which was itself financed by OSIsoft CEO Patrick Kennedy, as the anchor tenant.

San Leandro Dark Fiber LLC, the firm created by Kennedy to build the network, invested $3 million to pull fiber strands through existing conduit.

San Leandro is sandwiched between Oakland on the north and Hayward to the south. The suburb of perhaps 85,000 people features any number of industrial (food processing) operations, several corporate anchor firms (JanSport, The North Face, Ghirardelli, OSIsoft, Otis Spunkmeyer), a Coca-Cola plant. Maxwell House coffee roasting plant and five shopping centers.

But the story here might just be that no commercial provider could create a viable business plan for the whole network. In San Leandro, an anchor tenant was motivated to create gigabit connectivity because such connectivity is essential for its own business.

Net Neutrality Founded on Bad Science

Analyst Martin Geddes has been arguing for “science-based” telecom policy. Unfortunately, he argues, U.S. network neutrality fails, in that regard.

Discussing the Federal Communications Commission’s new rules, Geddes spares no words. “Regrettably, they have proceeded to issue rules without having their science in order first,” Geddes says. “As a result they have set themselves up to fail. My fear is that other countries may attempt to copy their approach, at a high cost to the global public.”

Consider the apparently easy issue of “no blocking of lawful packets.” Most people agree lawful packets should not be blocked (some governments disagree). But is it “blocking” when a specific Internet service provider does not interconnect with some other Internet domain?

“How will the FCC differentiate between ‘blocking’ and ‘places our ISP service doesn't happen to route to’"?

Geddes says there are issues of business practice. “Why can't an ISP offer ‘100 percent guaranteed Netflix-free!’ service at a lower price to user who don't want to carry the cost of their neighbors' online video habit?”

“A basic freedom of (non-)association is being lost here,” Geddes notes. “To this foreigner, ‘no blocking’ is a competition issue for the FTC and antitrust law, not the FCC (and the FTC agrees, by the way).

Similar problems exist with "no throttling" policies.

“Broadband is a stochastic system whose properties are entirely emergent (and potentially non-deterministic under load),” Geddes says.

How will a regulator distinguish between "throttling" and mere "unfortunate statistical coincidences leading to bad performance"?

And fairness is an issue. “Why should someone who merely demands more resources be given them?” Geddes rhetorically asks. “Where's the fairness in that!”

What's the metric used to determine if "throttling" has taken place? User behavior matters.

Optimizing networks for "speed" performance produces better results for large file downloads, not interactive apps, for example.

What are the proposed metrics for performance and methods for measuring traffic management? What's the reference performance level for the service? Without these, "no throttling" is meaningless and unenforceable, Geddes notes.

The real issue is whether the service performance is good enough to deliver the quality of experience outcome(s) that the user seeks. And that’s a problem. By definition, “best effort” is just that: best effort.

The other problem is that such an approach necessarily prevents creation and use of classes of service that users benefit from, and might well desire to buy and use.

Traffic scheduling (packet “prioritization”) is a good thing, even if it violates the rules, in other words.

Net neutrality “undermines rational market pricing for quality.”

We already have "paid priority", he notes. “All CDNs offer de facto priority by placing content closer to the user, so it can out-compete the control loops of content further away. Paid peering is perfectly normal.

“If you tried to make spectrum policy rules that broke the laws of physics, you'd be ignored by informed people,” Geddes says. “Boadband is similarly constrained by ‘laws of mathematics.’ Why don't we try making rules that fit within those, for a change?”

“We need a new regulatory approach, grounded in the science of network performance, that directly constrains market power,” Geddes argues.

Missing Really Big Trends is Par for the Course

Nothing better illustrates our inability to foresee the future than the unexpected, non-linear growth and exponential impact of mobile services and the Internet.

Who would have predicted, in 1990, that voice communications would be available to nearly everyone on the planet before 2010, and used by most people by 2015?

Likewise, we sometimes miss--with all the talk about the digital divide--how fast Internet access is spreading, and how fast access speeds are growing. In Nigeria, mobile Internet adoption already is 59 percent of all mobile users.

Mobile data traffic in Sub-Saharan Africa is predicted to grow around 20 times between the end of 2013 and the end of 2019. Globally, mobile data traffic will grow 10-fold during the same period, according to Ericsson estimates.  

In fact, by about 2019, 75 percent of users in the region will have mobile Internet devices that are

video capable. That is a radical departure in a region where most devices today are feature phones.

In 2002, roughly 10 percent of people owned a mobile phone in Tanzania, Uganda, Kenya and Ghana. Now, adoption ranges from 65 percent to 83 percent. In just a little over a decade, mobile usage grew 600 percent to 800 percent.

Today, mobile phone ownership is as common as in the United States (89 percent adoption) in South Africa.

At the same time, fixed network adoption  penetration in the seven countries surveyed (Ghana, Kenya, Nigeria, Senegal, South Africa, Tanzania and Uganda) is close to zero.

About two percent of respondents surveyed across these nations say they have a working landline telephone in their house.

It is fair to say that as recently as 1980, few would have predicted most of the world’s people would be connected to communications networks by about 2015, solving a major development and social problem that had seemed nearly intractable.

Back then, the only feasible solution was deemed to be the traditional fixed telephone network. Mobility changed all that.

That precedent is one reason why many believe supplying Internet access to the world’s people likewise will be solved, with a few decades, if not within a single decade, by the use of non-tethered, mobile or other spectrum-based networks.

Netflix Looks Past HBO

Netflix once argued there was a race going on between HBO and Netflix, each racing to become more like the other. Perhaps the race is over. Maybe the race no longer matters, as both are favored brands with distinct content .

Maybe the coming inflection point is coming, and the real challenge for Netflix is not “catching HBO,” but displacing linear TV.

That shift in emphasis, confirming that the competition is not HBO, arguably represents an intensification of the “Internet TV” trend.

There are times when a firm succeeds with one goal, and needs to switch to bigger goals. Netflix seems to be at such a place.

India Inches Towards Banning "Zero Rating"

Though action has not yet been taken, it is starting to look as if Indian Internet regulators will eventually put an end to “zero rated apps” that have proven effective ways of introducing non-Internet users to the benefits of using the Internet.

So here we have an issue of “good things” in conflict. One is the notion that innovation is promoted when every app has an “equal chance” of being discovered and used (even if, in practice, that rarely is true, or possible).

The other good thing is the ability to provide people access to useful apps without those people having to pay.

And it appears one or the other of those good things will not be lawful, eventually.

Should such a framework remain in place for a long time, more new apps are going to move away from “Internet” delivery, though. Some apps work better when quality of service measures are available. And some apps might have life-threatening consequences if absolute low latency or bandwidth is unavailable.

Such apps will move away from the public Internet and into “walled gardens.” That might be useful, in some instances. Medical apps, driverless cars and other automated processes arguably would benefit from higher performance guarantees than can lawfully be provided using the consumer Internet.

Google is Almost at a Watershed Moment

If history and precedent matter, then Google has nearly reached a watershed moment.

The evidence comes from what happened to Microsoft when it faced its own antitrust troubles in the late 1990s and early 2000s.

Microsoft ruled computing in the mid 1990s. By 2010, it was an also-ran. All that happened despite the fact that Microsoft escaped being broken up, and also avoided crippling fines.

Google now faces the same potential problems (forced divestiture and huge fines). Some day, when the case has run its course, Google is likely to be fined a relatively small amount, and will have avoided any danger of a forced breakup of the company.

But Google’s momentum will have been halted. And if precedent serves as guide, Google never again will “lead” computing markets.

By End of 2015, I will be able to Buy Gigabit Service from 2 Suppliers

By the end of 2015, I will be able to buy gigabit Internet access from at least two Internet service providers, including the cable TV and telco suppliers serving my neighborhood.

That sudden development raises new questions. Have incumbent ISPs concluded they must beat Google Fiber to a gigabit?

What does that do for demand for other products, such as access at 40 Mbps or 100 Mbps?

And once users become accustomed to such speeds, will their perceptions of experience shift?

The big immediate questions are about incumbent ISP strategy.

Among the reasons Google Fiber launched Google Fiber was to spur just those sorts of investments by the major U.S. Internet service providers, and one would have to say Google Fiber is succeeding.

But a sudden response now suggests U.S. incumbent ISPs have decided the challenge from Google Fiber simply has to be met. Where the dominant cable TV and telco competitors have essentially waited to see what would happen, Google seems to be getting huge market share.

So what now seems to be happening are preemptive strikes by the incumbents, to acquire as much of the gigabit market as possible before Google Fiber arrives locally, disrupting Google Fiber’s ability to make easy gains and develop a positive cash flow position.

The obvious related question is what happens to profit margins for high speed service. Some would say Google long has wanted costs as close to zero as possible, and the preemptive incumbent ISP moves suggest Google also is getting its way on that score.

At the same time, some believe demand for services from 40 Mbps to 105 Mbps also will get a big boost, either because ISPs upgrade customers to those plans without a price increase, or because consumers now will see value in upgrading to faster speeds, if not all the way to a gigabit.

To be sure, some will say the cost of the gigabit services offered by cable TV and telco providers is an issue. That is more likely to be the case where Google Fiber is not viewed as a potential competitor.

Where Google Fiber must be confronted as a local competitor, prices are likely to align around Google Fiber’s pricing leadership.

Even where that is not the case, Google Fiber price leadership still matters, as it sets consumer expectations.

In my own area, the difference between 100 Mbps and 1,000 Mbps now is about $58 a month, for a stand-alone high speed access service not bundled with voice or video.

On a stand-alone basis, a 100-Mbps service might cost $92 a month. On a stand-alone basis, it might cost $151 a month for a gigabit service, with no discounts for bundling.

Some will object to those levels of pricing. Some of us would counter “just wait.” I used to pay $100 a month for 700 kbps.

On a triple play bundle, I could buy a gigabit for about $80 a month, from one supplier.

The caveat is that those prices do not yet reflect the entry of the second competitor, by the end of the year. I expect prices will fall.

Many consumers actually buy dual-product or triple play bundles, so the “actual” cost for the high speed access is hard to determine with precision, but using an $80 figure for stand-alone video, and $50 each for voice and Internet access, a triple play bundle costing about $130 might infer promotional prices of about $58 a month for video and about $36 each for voice and high speed access, with the high speed access at about 105 Mbps.

At some point, some end users are going to be able to directly compare their experience at 15 Mbps with 100 Mbps or 1,000 Mbps. In many cases, consumers are going to discover they actually do not discern improvements.

Oddly, that might actually retard adoption of gigabit services, where 100 Mbps or 300 Mbps alternatives are available.

Still,  that is going to raise some other issues, as what app providers are going to have to do, as latency becomes the bottleneck, not access bandwidth. If latency performance improves, then a bandwidth boost to hundreds of megabits might actually produce an experience boost.