May 2016

With Commissioners of the Federal Communications Commission set to vote on Charter Communications' takeover of Time Warner Cable and Bright House Networks, opposition group Stop Mega Cable has made an 11th-hour plea with the agency to impose more conditions on the deals. On May 2, representatives from the group, led by legal eagles from member company Dish Network, met with Marc Paul, legal advisor for Commissioner Jessica Rosenworcel. The opposition group said conditions to the deals outlined in an approval order published by FCC Commissioner Tom Wheeler don't go far enough.

"Among other things, the conditions proposed in the draft order do not fully prevent Charter from using its dominant position in the marketplace to thwart competition from [over-the-top] streaming services and stifle competitors in underserved, rural communities," the group said in an ex parte filing outlining the FCC meeting. "Coalition members explained that additional conditions should be imposed to remedy the harms that remain insufficiently addressed by the draft order," the ex parte added. "Among other things, Charter should be required to offer a standalone broadband service that would enable consumers wishing to 'cut the cord' to have that option." Stop Mega Cable asked the FCC to demand that Charter establish a standalone broadband product with a minimum download speed of 60 Mbps. "In addition, members of the coalition underscored the need to establish a meaningful condition to improve media diversity that goes beyond a Memorandum of Understanding (MOU). MOUs in mergers have proven to be ineffective for the most part and the MOU proffered in this merger was even lighter than most (e.g., calling for the renewal of a single African-American oriented programming service)," the group added.

Judge Emmet Sullivan of the US District Court for the District of Columbia opened the door to interviewing Democratic presidential front-runner Hillary Clinton as part of a review into her use of a private e-mail server while secretary of State. Judge Sullivan laid out the ground rules for interviewing multiple State Department officials about the e-mails, with an eye toward finishing the depositions in the weeks before the party nominating conventions. Clinton herself may be forced to answer questions under oath, Judge Sullivan said, though she is not yet being forced to take that step.

“Based on information learned during discovery, the deposition of Mrs Clinton may be necessary,” Judge Sullivan said in an order. Discovery is the formal name for the evidence-gathering process, which includes depositions. “If plaintiff believes Mrs. Clinton’s testimony is required, it will request permission from the Court at the appropriate time.” The order leaves open the possibility that Clinton will be forced to answer detailed questions on the eve of her formal selection as the Democratic presidential nominee about her creation of the server. Any deposition would surely roil the presidential race and force her campaign to confront the issue, which has dogged her for a year.

Dish Network is lobbying the Federal Communications Commission to deny Verizon's proposed $1.8 billion acquisition of XO Communications' spectrum assets and fiber business, claiming among other things that the deal would have an adverse impact on competition in multiple markets. Verizon announced in February it planned to buy XO's substantial fiber-optic network, which covers 40 major US markets through 1.2 million fiber miles. The move would enable Verizon to deepen its Ethernet penetration to serve its fixed-line customers, and it may allow the carrier to cut the backhaul payments it makes to fiber providers outside its wireline markets as it densifies its cell network, partially through deploying small cells. Verizon's purchase of XO would also enable Verizon to lease XO's local multipoint distribution service (LMDS) spectrum with an option to buy it before the end of 2018. XO has 102 LMDS licenses in 28 GHz and 39 GHz bands that Verizon has said can be used to conduct 5G testing.

"The two transactions would place Verizon, one of the two largest mobile phone carriers in the nation, in control of resources -- specifically XO's fiber network and Nextlink's LMDS and 39 GHz spectrum -- that promise to play central roles in 5G applications and hence will be important to the companies competing against Verizon in the commercial mobile radio service (CMRS) 5G marketplace," Dish said in its petition. "Just as important, the transactions will eliminate current and potential competition between Verizon and XO in the mobile backhaul (both wireless and fiber), Internet transit, and enterprise and wholesale markets." Dish went on to claim that the LMDS frequencies are among the most important "next-frontier" airwaves for 5G, and licensed millimeter wave spectrum in that range "will be controlled almost exclusively by Verizon" should the acquisition go through.