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Vermont Public Service Board Issues Order Regarding Joint Petition of Charter Communications, Inc. and Comcast Corporation for Consent to Transfer...(Targeted News Service Via Acquire Media NewsEdge) Vermont Public Service Board Issues Order Regarding Joint Petition of Charter Communications, Inc. and Comcast Corporation for Consent to Transfer 100 Percent of the Equity in Helicon Group, LP, the Holder of a Certificate of Public Good MONTPELIER, Vt., Aug. 27 -- The Vermont Public Service Board issued the following order: Docket No. 8309 Joint Petition of Charter Communications, Inc. and Comcast Corporation for consent to transfer 100 percent of the equity in Helicon Group, LP, the holder of a Certificate of Public Good to own and operate a cable television system in Vermont, from Charter Communications, Inc. to Comcast Corporation Order entered: 8/27/2014 ORDER RE: MOTIONS TO INTERVENE I. INTRODUCTION On August 14, 2014, Vermont Access Network ("VAN") and the Telephone Operating Company of Vermont LLC, d/b/a FairPoint Communications ("FairPoint"), both filed motions to intervene with the Vermont Public Service Board ("Board") in the above-captioned docket. In this Order, I grant VAN's motion and deny FairPoint's motion. II. PROCEDURAL HISTORY On August 7, 2014, I held a prehearing conference in this docket during which the parties agreed upon a schedule, which I subsequently adopted.1 Pursuant to the August 12 Order, I established August 14, 2014, as the deadline for filing motions to intervene and August 21, 2014, as the deadline for filing responses to motions to intervene. 1Prehearing Conference Memorandum and Procedural Order entered August 12, 2014 ("August 12 Order"). On August 14, 2014, VAN and FairPoint both filed motions seeking intervention in this docket pursuant to Board Rule 2.209(A) or, alternatively, pursuant to Board Rule 2.209(B). On August 21, 2014, Charter Communications, Inc. ("Charter") and Comcast Corporation ("Comcast") (collectively, the "Petitioners") jointly filed an objection to both VAN's and FairPoint's intervention requests. On August 21, 2014, the Department of Public Services ("DPS" or "Department") filed a letter with the Board stating that the Department does not oppose the intervention of either VAN or FairPoint pursuant to Board Rule 2.209(B). On August 22, 2014, VAN filed a response to the Petitioners' August 21, 2014, objection. III. POSITIONS OF THE PARTIES VAN VAN is a professional membership organization comprised of twenty-six of Vermont's twenty-eight Public, Educational, and Government ("PEG") Access Management Organizations ("AMOs"). VAN's members provide PEG service within the Petitioners' service territories. VAN's purpose is to promote an interest in and advancement of community media throughout Vermont, including by participating in Board proceedings on behalf of its members. VAN states that the proposed sale, "will result in the re-assignment of Charter's existing certificate of public good ("CPG") to Comcast and the assignment of Charter's existing AMO agreements to Comcast." This acquisition would result in twenty-four of VAN's members having agreements with Comcast. VAN states that its members have concerns about the proposed acquisition and that only VAN can sufficiently raise these issues in this proceeding. VAN states that Comcast will exercise control over AMO access to commercial features of the cable network, will be the sole decision-maker regarding channel assignment to AMOs, and will be the single source to provide a statewide channel. VAN states that its members, who have had a good relationship with Charter, are much less confident that relationships with Comcast will be as constructive. Thus, VAN and its members are concerned about how an acquisition may impact the future delivery of PEG Access Services and their ability to constructively negotiate with Comcast as they have been able to in the past with Charter. VAN states that while the Petitioners make a number of promises about the future benefits of an acquisition, such as further accelerated deployment of innovative services, XI platform with cloud technology, and faster broadband speeds, these promises remain indefinite and unenforceable and that there is no guarantee that these benefits will indeed flow to the AMOs after the acquisition. Therefore, VAN seeks to intervene in order to ensure that these promised benefits accrue to VAN's membership. FairPoint FairPoint states that it is an incumbent local exchange provider operating a telecommunications network in Vermont. FairPoint alleges that the proposed sale is one element of a proposed merger between Comcast and Time Warner Cable Company. FairPoint alleges that if the proposed merger were to be completed, Comcast would enjoy near-monopoly power in the Vermont and national cable and broadband markets and, with such a monopoly, the unrivaled power to set voice and broadband prices throughout the country. FairPoint also alleges that Comcast owes unpaid pole attachment rental fees to FairPoint pursuant to the rates set in Board Rule 3.706, a debt which Comcast disputes. FairPoint alleges this disagreement has resulted in accrued receivables of $2 million in past-due pole attachment fees. FairPoint further alleges that Charter has embraced Comcast's position regarding pole rental fees and similarly owes FairPoint past due annual rents. FairPoint asks the Board to condition approval of the acquisition upon payment by Comcast and Charter of all past due rents owing to FairPoint. FairPoint argues that it alone in this proceeding can properly assert and protect its rights under the Pole Attachment Tariff and applicable Vermont law. Charter & Comcast The Petitioners oppose intervention by both VAN and FairPoint. The Petitioners contend that Comcast will remain legally bound by the terms of Charter's CPG and all existing agreements with AMOs. Thus, according to the Petitioners, the transfer will not affect VAN's interests. The Petitioners allege that VAN is already party to Charter's ongoing CPG proceeding in Docket 7820 at the Board. Thus, The Petitioners argue that VAN's request should be denied because VAN can protect its interests in another proceeding. The Petitioners also contend that VAN has not demonstrated that its interests are not adequately represented by another party to the proceeding. The Petitioners point out that VAN's interest arises from VAN members' concern about PEG funding and support obligations to them. The Petitioners assert that VAN has not established that it has sought recourse with the Department or the Board to protect these interests. The Petitioners argue that FairPoint's motion to intervene seeks to resolve a longstanding dispute over the appropriate rental fees for pole attachments. The Petitioners argue that FairPoint's attempt to raise that issue in this proceeding is misplaced because this issue can be addressed in alternate proceedings. The Petitioners state that granting intervention to FairPoint would cause undue delay and would be fundamentally inconsistent with the 120-day process in this docket. Finally, the Petitioners assert that granting intervention to FairPoint in this proceeding would run afoul of federal law because the issue FairPoint raises is outside the scope of those issues contemplated in federal law for the transfer of a cable franchise. The Department The Department does not oppose the intervention of either of these parties in this proceeding. However, the Department states that both VAN's and FairPoint's interests may be more appropriately examined and better protected in alternative Board proceedings. The Department notes that VAN is a party to ongoing Docket Numbers 7820 and 8301 and can raise its concerns regarding its relationship with Comcast in those proceedings. The Department also identifies ongoing Docket Number 7316 (the Board's VOIP services investigation) as a viable alternative in which FairPoint can seek resolution of its Pole Attachment Tariff complaint. IV. DISCUSSION AND CONCLUSION VAN VAN alleges that if the acquisition is approved, twenty-four of VAN's members will now have AMO agreements with Comcast, with whom they will eventually be required to negotiate when those agreements expire. VAN states that these agreements govern significant financial resources for VAN's members. Based on these representations, I have determined that VAN has a substantial interest in the identity of the counter party to such agreements. The Petitioners have correctly argued that VAN can protect its interest in Charter's and Comcast's obligations to VAN's members in alternative proceedings--namely Dockets 7820 and 8301. However, the focus of this proceeding is whether the proposed transaction between Charter and Comcast is in the public interest. VAN has an interest in helping the Board to understand how this transaction may affect AMOs, an interest that can only be protected in this proceeding. Finally, VAN has demonstrated its intervention will not unduly delay the proceeding or prejudice the interests of existing parties or of the public because VAN has agreed to act within the prescribed 120-day window allotted for this proceeding. For the above stated reasons, I hereby grant VAN permissive intervention pursuant to Board Rule 2.209(B), limited to the interests identified in this Order. FairPoint FairPoint "seeks intervention in the present proceeding to assert and protect its rights under the Pole Attachment Tariff."2 FairPoint further asserts that "this proceeding affords the exclusive means by which FairPoint can advance and protect such interests."3 I am not persuaded that this proceeding affords the exclusive means by which FairPoint can protect its interest in asserting its rights under the Pole Attachment Tariff. Whether or not FairPoint is entitled to unpaid rental fees is related to, among other things, the resolution of issues under consideration in Docket 7316. Further, if after the resolution of Docket 7316 it becomes clear that FairPoint is legally entitled to wrongfully withheld rental fees, FairPoint has not demonstrated why it cannot pursue such claims through other legal means. Accordingly, I deny FairPoint's request to intervene in this Docket. 2FairPoint Motion at s 22. 3FairPoint Motion at s 24. For the above stated reasons, FairPoint's intervention request is denied. SO ORDERED. Dated at Montpelier, Vermont, this 27th day of August , 2014. s/Jake Marren Jake Marren, Esq. Hearing Officer OFFICE OF THE CLERK FILED: August 27, 2014 ATTEST: Susan M. Hudson Clerk of the Board CC AutoTriage13cn-140829-30TagarumaMar-4842515 30TagarumaMar (c) 2014 Targeted News Service |