OVERCHARGED AND UNDERSERVED: HOW A TIGHT OLIGOPOLY ON STEROIDS UNDERMINES COMPETITION AND HARMS CONSUMERS IN DIGITAL COMMUNICATIONS MARKETS Roosevelt Institute Working Paper Mark Cooper Director of Research, Consumer Federation of America Adjunct Fellow, Silicon Flatirons, University of Colorado December 2016 The Roosevelt Institute thanks the Mertz Gilmore Foundation and other generous donors for their financial support. TABLE OF CONTENTS EXECUTIVE SUMMARY x I. A SILVER CLOUD WITH A DARK LINING: THE GOOD, THE BAD AND THE UGLY 1 OF THE DIGITAL COMMUNICATIONS SECTOR A Tight Oligopoly on Steroids in Digital Communications Networks Pocketbook Impacts of the Abuse of Market Power The Good, the Bad and the Ugly in the Digital Communications Sector Conflicting Views of Communications Market Structure Outline PART I: ANALYTIC FRAMEWORK AND EMPIRICAL OVERVIEW II. CONCEPTUAL AND EMPIRICAL FRAMEWORK TO ANALYZE CORE CONCERNS 17 ABOUT MARKET POWER Basic Analysis and Concerns Defining Markets Thresholds for Concerns about Market Power Competitive Effects Coordination Effects and Incipient Competition Non-Horizontal Mergers and Market Structure Concerns Vertical Integration and Leverage Conglomeration Conclusion: The Importance and Limitation of the Antitrust Approach to Market Power Analysis III. A BROADER ECONOMIC VIEW 30 The Welfare Economics of the Abuse of Market Power Structure, Conduct, Performance The Role of Market Failure Economic Oligopoly, Inequality, and Political Oligarchy Conclusion IV. METHODOLOGY AND DATA FOR QUANTITATIVE ANALYSIS 41 Operationalizing Key Analytic Concepts Conceptual Clarity, Empirical Complexity Tying the Empirical and Conceptual Analysis Together Multiple Measures, Multiple Data Sources Measures Data ii PART II: THE ORIGIN AND STRUCTURE OF THE TIGHT OLIGOPOLY ON STERIODS ACROSS DIGITAL COMMUNICAITONS MARKETS V. UNIQUE AND PERSISTENT PROBLEM OF MARKET POWER IN COMMUNICATIONS 50 NETWORK INDUSTRIES Reasons to Regulate Infrastructure and Externalities Market Structure Social Values The Dominance of Vertically Integrated Conglomerates The Nature of Communications Markets Concentration A Tight Oligopoly on Steroids (Virtual Cartel) Reinvigorating Market Structure and Antitrust Analysis VI. THE WIRELESS MARKET 63 . The ATT/T-MOBILE MERGER Auctioning Spectrum: Limits on Acquisition by Dominant Carriers CELLCO VII. BROADBAND-VIDEO MERGERS 74 Comcast-NBC The Sources of Market Power Buyer Market Power Bottleneck Market Power The Remedy Comcast-Time Warner Severe Damage to Market Structure The Charter Swaps Charter/Time Warner/Bright house PART III: THE GREAT TRANSFORMATION: SILVER CLOUDS AND DARK LININGS VIII. COMMUNICATIONS PROTOCOLS, OPEN ACCESS AND ENTREPRENEURIAL 91 EXPERIMENTATION The Role of Access in the Virtuous Cycle of Digital Communications Unlicensed Spectrum and the WiFi Revolution Incumbent Opposition and the Constant Threat of the Abuse of Market Power Discriminatory Access Set Asides for Unlicensed Use IX. THE DIGITAL REVOLUTION IN COMMUNICATIONS SERVICES 104 Consumer Pocketbook Spending on Digital Communications Services iii Creating New “Necessities” Dramatically Falling Costs Consumer Dissatisfaction Pocketing the Surplus Low Consumer Satisfaction Ratings X. THE ECONOMIC TRANSFORMATION AND THE IMPORTANCE OF CORE NETWORK 113 FUNCTIONALITY Transforming the Economy Business Data Services: Core Network Connectivity The Increasing Importance of Network Functionality and Connectivity Pass Through of Business Data Service Costs The Shifting Focal Point of Market Power PART IV: OVERCHARGES AND EXCESS PROFITS XI. BUSINESS DATA SERVICES 126 Premature Deregulation Created the Special Access Market Power Problem Concentration Increasing Revenues, Declining Cost, Soaring Profits Overcharges and Their Impact Indirect Macroeconomic Impacts An Estimate Based on International Comparisons The FCC’s Special Access Order Anticompetitive Contract Terms and Conditions The Extent of Competition Competition and Price Other Indicators of Anticompetitive Conduct New York Data Financial Analysis of the BDS Market Conclusion XII. WIRELESS: COMPETITION, PRICES, EXCESS PROFITS 143 Policy Context and Concentration Examination of Trends in Price, Cost and Profit International Comparisons The Contemporary Benefits of Promoting Competition: The Rejection of the ATT/T-Mobile Merger The Consumer Impact of Overcharging Conclusion XIII. BROADBAND VIDEO: CABLE CONCENTRATION AND EXCESS PROFITS 157 Policy Context Extreme Local Concentration Video iv Broadband U.S. Price Trends The Set-top Box Price Comparisons of Bundles across Nations and Ownership Types Excess Profits Conclusion XIV WHERE DOES ALL THE MONEY GO? 172 Accounting for Overcharges and Excess Profits Pumping Up Stockholder Returns Return on Capital Conclusion PART V: IMPORTANT SOCIAL GOAL WITH SIGNIFCANT ECONOMIC IMPACTS XV. UNIVERSAL SERVICE 181 The Enduring Commitment to Universal Service The Reaffirmation of the Commitment to Universal Service Quantitative Evidence on the Digital Divide The Causes and Consequences of Exclusion Conclusion: The FCC Universal Service Order XVI. ABUSE OF VERTICAL LEVERAGE IN THE TRADITIONAL VIDEO MARKET 194 Diversity and Market Failure Return of a Vertically Integrated Oligopoly in Television Emergence of a Vertically Integrated Oligopoly in Television Favoring Affiliates, Foreclosing Competitors The Debate over Quality XVII. PRIVACY 207 Privacy as a Social Value Market Failure Privacy and Network Information ACKNOWLEDGMENTS 217 BIBLIOGRAPHY 219 LIST OF FIGURES Figure I-1: Mergers Created a Tight Oligopoly on Steroids in the Digital 2 Communication Figure I-2: Four Firms Constitute a Tight Oligopoly in Digital Communications 3 Figure I-3: Household Expenditures and Overcharges for Communications 5 v Services and Other Important Household Items Figure I-4: Excess Cash Thrown Off from the Communications Giants (2011-2015) 5 Figure I-5: Horizontal Independent Business Models, Assuming Models 10 Compete At all Levels Figure I-6: Vertically Integrated Network Access Firms are Bottlenecks for 11 Competitive Device, Edge and Management Services Firms Figure I-7: Key Historical Policies as Building Blocks of the Digital 12 Revolution Combined with Traditional Access policies to “Ring Fence” the Market Power of the Dominant Networks and Create Space for Innovation and Entrepreneurship Figure I-8: Policies to Control the Market Power of the Tight Oligopoly 14 Figure III-1: Abuse of Market Power 31 Figure III-2: The Structure-Conduct-Performance Paradigm: Keyed to Cable 33 Figure III-3: The Political Economy (Welfare Economics) of Market Power and 38 Inequality: Political Oligarchy Reinforces Economic Oligopoly Figure IV-1: Linking the Structure Conduct Performance Paradigm to Abuse 45 of Market Power Figure V-1: Geographic Separation, Technological Specialization and Product 56 Segmentation Magnify the Market Power of the Oligopoly Figure VI-1: Market Structural Reasons to Oppose the ATT/T-Mobile Merger 64 Figure VI-2: The Verizon/Cable Joint Venture 73 Figure VII-1: Concerns about Comcast’s Incentive and Ability to Abuse Its 76 Market Power as a Result of the NBC Acquisition Figure VII-2: Concerns About Comcast’s Proposed Acquisition of Time Warner 84 Figure VII-3: Concerns Raised by the Charter/Time Warner Entertainment/ 87 Bright House Figure IX-1: Increasing and Shifting Expenditures on Communications Services 105 Figure IX-2: Penetration of Internet, Broadband, and Mobile 106 Figure IX-3: Declining Cost of Communications Equipment in the 109 Digital Revolution Figure IX-4: Communications Service Price Increases v. Declining Equipment 111 Figure IX-5: American Consumer (Dis) SATISFACTION Index since the 1996 Act 112 Figure X-1: Schematic of Effects Stemming from the Digital Revolution and 114 Deployment and Adoption of Broadband Figure X-2: Business Data Services and Access to Core Network Functionality 119 are Central in the Synergy Phase of the Digital Revolution vi Figure X-3: Verizon New York Voice Customers Shift between Technologies 112 Figure XI-1: Concentration in Special Access Markets 129 Figure XI-2: Special Access Revenue 130 Figure XI-3: Decreases in the Cost Components of Special Access Services 131 Figure XI-4: Special Access Profits 131 Figure XI-5: Price Impact of In-Building and In-Block Competitors 137 Figure XII-1: Wireless Market Concentration Ratio (HHI) 144 Figure XII-2: Local and National HHI for Wireless Services 144 Figure XII-3: The Correlation between Concentration and Monthly Price 146 Figure XII-4: Cell CPI, Projected Competitive Prices & Cost of Equipment, Indices 147 Figure XII-5: Annual Investment per Subscriber 148 Figure XII-6: Indicators of Increasing Profitability of Cellular Providers 149 Figure XII-7: Mobile Service: Monthly Bill CRTC Rate Comparisons and OECD 150 Competition Analysis Figure XII-8: Denial of the ATT/T-Mobile Merger Unleashed Price Competition 152 Figure XII-9: The Sustainability of Lower Wireless Monthly Service Fees 153 Figure XIII--1: Concentration of Local MVPD and BIAS Markets 159 Figure XIII-2: Long Term: Deregulation Led to Price Increase Far above Inflation 163 Figure XIII-3: Prices of Customer Premise Equipment: Set-top Box v. Other CPE 165 Figure XIII-4: International Average Monthly Charges: All Bundle Offerings 167 Figure XIII-5: Comparison of Monthly Bills for Triple Play Service: U.S. versus 168 OECD, IOUs versus Municipal Service Providers Figure XIII-6: Cable Operating Revenue & Income with Broadband Revenue Per 169 Subscriber, Per Month Figure XIII-7: Video Revenues 171