The Regulatory Uncertainty Red Herring

            I wish I had a dollar every time I see and hear regulatory uncertainty vilified. In telecommunications regulation and policy, stakeholders involve RU as the reason for any ailment. RU prevents capital investment; RU stifles innovation; RU kills jobs; RU hurts national competitiveness.   RU causes the common cold.

            Here’s a news flash: unless one operates in a market completely free of regulation, there always will be some degree of uncertainty what the future regulatory climate will be.  Speaking of uncertainty, who knows what the cost of capital will be in a year, what law suits will confound a particular company; what technological innovation will challenge the status quo?

            Regulation constitutes one of very many variables for which a commercial venture cannot control.  Companies have to deal with it, but in this day telecom executives speak in complete opposites depending on the audience. To Congress, the FCC and the court of public opinion corporate executives trout out RU as a terrible scourge.  To buy side analysis and in commercial practice the very same executives accept RU as one of many variables in business.

            Has RU prevented wireless companies from making substantial sunk investments in next generation network spectrum and plant?  If RU is such an abomination how can AT&T CEO Randall Stephenson tell one constituency AT&T has had to curb capex investment while at the same time the company pays 45 billion dollars to acquire DirecTV and may offer its own mobile video streaming service? 

            So let me get this straight: RU curbs innovation and investment even as billions of dollars in mergers, acquisitions and new ventures continue to sprout.  

Comcast-TWC: Why Compete and Innovate When You Can Buy Market Share?

            Expect a charm offensive as Comcast and scores of sponsored researchers explain how acquiring Time Warner Cable will promote competition and enhance consumer welfare.  You might not hear too much about two traditional concerns remedied by actual facilities-based competition: incentives to innovate and reduce prices.

            Comcast will frame its acquisition as necessary to achieve even greater scale to compete with other sources of video content and maybe to compete with the limited other sources of broadband access.  Granted cable television operators have to provide consumers with a compelling value proposition particularly given the pricing model they use that runs up the bill—often to three digits—with a large bundle of channels for which few consumers have any significant preference.

            But Comcast is not acquiring TWC as a defense strategy to shore up the viability of cable television.  Comcast is exploiting the apparent inability of government—even one with a Democratic President and Senate majority—to enforce viable competition policy.  A concentrated market used to trigger concern about whether one or more survivors would continue to compete, or simply agree not to devote sleepless hours innovating.

            Just what happens when markets concentrate?  How can one doubt that the incentive to innovate and compete recedes?  Consider commercial aviation: when a single airline controls an airport, rates to and from that market skyrocket.  Consider wireless service: when AT&T could not acquire TMobile, TMobile got serious about innovating and competing.  Reluctantly Verizon and AT&T have had to respond to TMobile’s initiatives like lower rates for subscribers using their own handsets, lower roaming charges abroad and refunds of early termination penalties.  Would AT&T, Verizon and even Sprint have introduced these enhancements if TMobile did not exist?

            The balance of power has shifted from consumers to providers in the telecommunications marketplace.  Companies like Comcast can invoke scale and efficiency arguments that obscure the fact that consumers will have to pay more for less. So-called competitors can “close ranks” and implicitly agree not to compete.   

            Consider access to Olympics content.  Comcast-NBC wants to make it certain that consumers access this content only via prescribed means, firewalled so that they control access via new technological options like the Internet.  If Comcast did not have the goal of maintaining the status quo, why would it care whether viewers watched commercials on a computer monitor, smartphone screen, or tablet in lieu of the television set?

            Reduced to its simplest terms Comcast’s acquisition of TWC enhances shareholder value at consumers’ expense.   The only silver lining might be FCC-imposed conditions that impose otherwise unlawful requirements,  Of course the Commission would have to enforce them in the face of relentless claims that the requirements are “job killing,” unnecessary and unconstitutional.  What politically savvy civil servant would want to take on a “too big to fail” venture like Comcast?