Capitol Hill can’t make up its mind when it comes to the cable industry.
A report in the Wall Street Journal late Tuesday suggested the Justice Dept. has begun a broad-ranging probe of whether U.S. cable operators are engaged in anti-competitive practices. A spokesman for the department declined to comment Wednesday.
But if the Justice Dept. is undertaking such an investigation, it may reflect a schizophrenic approach in Washington, D.C., regarding Big Cable’s efforts to move toward metered billing for data plans.
FCC chairman Julius Genachowski gave the industry an unequivocal thumbs up last month when Comcast followed Time Warner Cable into experimenting with usage-based pricing. When the nation’s largest multichannel distributor raised its data cap from 250 GB to 300 GB and imposed a fee on subscribers who exceed that amount, Genachowski praised the move as consumer-friendly.
Wells Fargo analyst Marci Ryvicker noted the discrepancy between the DOJ and FCC in a research note Thursday. Citing her own talks with FCC on Wednesday she reiterated its “widespread support for usage based pricing still remains and that the FCC is ‘fine’ with the cable companies’ control over their own IP.
But, Ryvicker added, “the FCC is starting to question whether or not cable companies are defining their own IP ‘in the right way.'”
Adding to the confusion over where Washington D.C. stands was Senate Commerce Committee meeting in April concerning the future of TV barely addressed the issue of data caps. While participating pols agreed that a rewrite of the 1996 Telecommunications Act was in order, they noted that was unlikely in an election year.
Renewed support for revising the act came Wednesday when a group of Senate Democrats petitioned both DOJ and FCC to step up their current investigation into a proposed spectrum swap between Verizon and a consortium of cable operators. It’s likely not a coincidence that the DOJ is taking more interest in the MSOs as it weighs anti-competitive concerns over what that $3.6 billion deal could mean for broadband consumers.
Usage-based billing has been a radioactive issue given subscriber price sensitivity and streaming video services with business models dependent on unlimited consumption. But TW Cable inched into the space in March with an optional plan capped at 5 GB in select Texas markets, the same state where it sparked a backlash with a similar offering years earlier. TW Cable’s re-entry prompted Comcast to say it was “exploring” the possibility of metered billing.
Later that month, Comcast announced its video offering via Xbox would not count against its own 250 GB cap, spurring critics, including Netflix CEO Reed Hastings, to charge the company was violating network neutrality principles by giving preferential treatment to its own stream; in April the FCC said it would examine Comcast’s exception. But Genachowski didn’t reference the incident in his comments last month after Comcast lifted its cap, a move widely interpreted as having been made to appease critics or head off government scrutiny.
While the investigation is said to be focused on broadband pricing, DOJ officials reportedly also approached leading MSOs including Comcast and Time Warner Cable about the TV Everywhere initiative and the most-favored-nation clause in their affiliate agreements with programmers.
While broadband pricing is an obvious target for the feds, that TV Everywhere and the MFN clause were singled out for DOJ scrutiny is more surprising given neither has been a lightning rods in its own right. Both are pillars of the MSO business, however.
TV Everywhere is an industrywide initiative to drive added value to multichannel subscriptions by making the video programming customers are already paying to watch on TV available on digital platforms as well. But given the cable industry is the country’s dominant provider of both video and broadband plans, MSOs are loath to make content available on the latter without bundling it with the former.
While protecting themselves against cord-cutting, cable services are opening themselves up to pols looking to score points with constituents by lambasting high-priced subs. Attorney General Eric Holder and Sen. Al Franken (D-Minn.) both spoke out recently on the issue.
If the notion of TV Everywhere comes under fire, it could have profound implications for distributors and programmers alike. The initiative was at the heart of a $20 billion affiliate deal struck between Comcast and Disney in January that was hailed as a template for the TV biz in the way it granted the MSO a whole new set of digital content rights.
Just as crucial to the cable biz is the MFN clause, which essentially restricts programmers from awarding any distributor terms preferable to those in an existing pact. The clause has proved a barrier to aspiring new market entrants employing the so-called virtual MSO strategy; programming can’t be licensed at prices any cheaper than what current clients like Comcast already pay. But DOJ likely sees new market entrants as a measure to introduce more competitive subscription prices.