Brian T. Grogan presentation to National Association of Telecommunications Officers and Advisors 2013 Annual Conference, September 16-19, 2013: Understand the marketplace; Don't leave money on the table; Treat PEG like commercial channels; Maintain City Code regulations; You can't enforce franchise without tools

1. 1
National Association of Telecommunications Officers and Advisors
2013 Annual Conference – Orlando, FL
September 16-19, 2013
Brian Grogan, Esq.
ACTION! Primer on Cable
Regulation in an Evolving
IP World

2. Introduction
• Understand the marketplace
– Impact of competitors on renewal
• Don’t leave money on the table
– Bundled rates and other offsets from fees
• Treat PEG like commercial channels
– Transition of PEG to HD and VOD
• Maintain City Code regulations
– ROW codes, ordinances, permits fees
• You can’t enforce franchise without tools
– Records, bonds/LOCs, confidentiality
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3. Cable Marketplace
• Homes Passed 130.7 M
• Basic Cable Subscribers 57.3 M
• Basic Cable Penetration 44.4%
• Homes Passed by Internet 125.4 M
• High Speed Internet subs 50.3 M
• Cable Phone subs 26.7 M
• 2011 cable operator revenue
– Video revenue = $57 M
– Broadband/telephone revenue = $41M
• No programming costs for non-video services
Source: SNL Kagan – NCTA website (visited August 2013)
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4. Marketplace Challenges
• Decreasing Subscriber Base
– Over the top (OTT) competition
– Satellite and telephone competition
– Franchise Fees paid by cable $3.2 B (2011 est.)
• Cable “gross revenues” Nearly Flat
– Subscribers decreasing
– Rates increasing
– Is the “cable pie” getting smaller?
• Will 2015 franchise fees = $3.2 B
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5. Chromecast OTT Video Device
$35
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6. OTT Devices
• Chromecast
• Apple TV,
• Boxee Box (with Live
TV dongle),
• Xbox 360 (with Kinect),
• Nintendo Wii,
• Roku XDS,
• Seagate GoFlex TV,
• Sony PS3,
• Logitech Revue,
• Sony SMP-N200,
• TiVo Premiere,
• ViewSonic NexTV,
• WD TV Live,
• OnLive
• All DVD players
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7. OTT Platforms
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8. OTT Platforms
• Netflix,
• Hulu Plus,
• HBO GO,
• iTunes,
• VUDU,
• Zune Video,
• Amazon Prime
Streaming,
• DISH/Blockbuster
• Sony PlayStation
Network,
• Google TV,
• MLB.TV,
• EPIX, UFC,
• ESPN,
• YouTube,
• EPIXHD,
• OnLive and others.
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9. Impact of OTT on Renewal
• Limited ability to communicate with OTT subs
• Reduced consideration
– Franchise fees
– PEG fees
– INet
• Same burden on ROWs – limited regulation
• Does cable operator have argument:
– Greater competition = less regulation
– Don’t kill the goose
– Per subscriber contribution will need to rise
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10. Don’t leave money on the table
• Example: Bundled Rates
• Subscriber pays $150 for triple play services/equip.
• Is LFA receiving full payment on cable services?
• How is discount being applied?
– Line backer fees
– Service calls
• Must address issue in renewed franchise
– Allocate revenue on a “pro rata basis”
– i.e. equal allocation of the package discount
• Spend time in renewal
– on details of all compensation terms
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11. Sample Bundled Rate Provision
• Where the Grantee or any affiliate bundles, integrates,
ties, or combines Cable Services with Nonvideo services
creating a bundled package, so that subscribers pay a
single fee for more than one class of service or receive a
discount on Cable Services, gross revenues shall be
determined based on an equal allocation of the package
discount, that is, the total price of the individual classes
of service at advertised rates compared to the package
price, among all classes of service comprising the
package.
Based on California Digital Infrastructure and Video Competition Act
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12. Other offsets from fees
• PEG fees offset from franchise fees?
– Operator may seek language to allow offset
– Based upon 47 USC 542 “Capital v. operational”
– Watch out for:
• “as permitted under federal law” or
• “unless prohibited by federal law”
• Advertising fees
– Net v. Gross revenues
– Commissions paid first
• Operator may seek to limit franchise fees
– To revenue “received from subscribers”
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13. PEG v. Commercial Channels
• LFAs want PEG treated the same as any other
commercial channel
– No degradation of signal
– Same technical quality and functionality
– Channel located in proper neighborhood
– Carriage fees calculated uniformly
– On Demand and video anywhere capability
– Ease of access via navigation platform
• Why will operator not meet these requirements?
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14. PEG Transition
• Capacity v. channel space
– 6 MHz v. dedicated channel slot
– Digital (SD) or high definition (HD)
• Simulcast
– SD and HD
– Basic and expanded tiers
• Timing, location, accessibility
– Equipment, cost
• Video on Demand – technical issues, costs
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15. Maintain City Code Regulations
• Should LFAs maintain separate “cable” ordinance?
– Conflicts – how resolved
– Separate/ different rules for ROW users?
– Can issues be addressed in City Code
• City Code
– ROW provisions
» Permitting (conditions)
» Fees
» Insurance, bonds
• Customer service, consumer protection
• Approach may vary based on size and staff of LFA
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16. Franchise Enforcement Tools
• Operators are resisting reporting obligations
– They argue confidentiality, trade secret
– Too great a burden – cost
– Outdated in competitive market
• Without records/reports how can LFA enforce?
• Operators resist letters of credit
– They want bond or even less
– They want lengthy and complicated procedure
• Goal may be to frustrate effective enforcement
• Do not overlook these issues in renewal
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17. Conclusion
• Cable industry is changing
– Video growth is limited
– Non-video may be the future profit center
• Local regulation still imperative
– ROW control
– Local content - PEG
– Subscriber protection
– Contract oversight and enforcement
• Without LFA no regulation to benefit subscriber
• Without strong franchise – no hope of regulation
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18. 18
Thank You!
Brian T. Grogan, Esq.
Moss & Barnett
4800 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4129
Phone: 612-877-5340
Facsimile: 612-877-5999
E-mail: Brian.Grogan@lawmoss.com
Web site: www.lawmoss.com