The origins of the FCC "speed trap" and U.S. digital exclusion, inequity

Longtime telecom industry observer and blogger Doug Dawson delves into the origins of the “speed trap” U.S. telecom policy has fallen into as it struggles to provide ubiquitous, affordable advanced telecommunications infrastructure. It begins with the definition of the colloquial term to describe advanced telecommunications: “broadband.”

This raises a question of the purpose of having a definition of broadband. That requirement comes from Section 706 of the Telecommunications Act of 1996 that requires that the FCC make sure that broadband is deployed on a reasonable and timely basis to everybody in the country. The FCC interpreted that requirement to mean that it couldn’t measure broadband deployment unless it created a definition of broadband. The FCC uses its definition of broadband to count the number of homes that have or don’t have broadband.

https://potsandpansbyccg.com/2023/07/28/too-little-too-late/

Section 706 is codified at 47 U.S. Code § 1302(d)(1), to define advanced telecommunications capability:

The term “advanced telecommunications capability” is defined, without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology. (Emphasis added).

"Broadband" isn’t defined in the statute. As Dawson notes, the FCC has attempted to define it over the past three decades, distinguishing it from narrowband dialup connectivity commonplace when the 1996 law was enacted. This created sluggish dialup as an anchor, making a commercial market in incremental improvements over dialup sold as an upgrade at a price premium. The more bandwidth, the larger the upgrade and the higher the price.

That market has become firmly entrenched, creating a perception of bandwidth scarcity and digital exclusion leading to what is now termed the “digital divide:” a split between those who can order and afford to pay for sufficient bandwidth to access “high-quality voice, data, graphics, and video telecommunications” referenced in the law and those who cannot – typically those living where the commercial return on infrastructure investment is insufficiently profitable in the broader market context. The commercial market in incremental bandwidth improvements reinforced the FCC policy Dawson describes as both are based on the metric of incremental bandwidth gains.

Supporting this circumstance is the lack of an affirmative policy to modernize copper to fiber to the premises connections. The technology came about two decades before the emergence of the mass market Internet.

First developed in the 1970s, fiber-optics have revolutionized the telecommunications industry and have played a major role in the advent of the Information Age.[7] Because of its advantages over electrical transmission, optical fibers have largely replaced copper wire communications in backbone networks in the developed world.[8]

https://en.wikipedia.org/wiki/Fiber-optic_communication

Legacy telephone companies built on copper developed for carrying analog voice telephone service saw fiber’s potential to deliver high-quality voice, data, graphics, and video telecommunications. By the early 1990s, they planned to replace their legacy copper with fiber to support the rollout of video services. But they opted not to make the transition, instead investing in more readily profitable mobile wireless services according to industry analyst Bruce Kushnick. They included NYNEX, the regional bell operating company created after the 1982 court ordered breakup of AT&T that was rebranded as Verizon. Verizon’s copper to fiber transition was short lived, from 2005 to 2010.

FCC’s seesawing stance on regulation of internet services could soon end

The two-decade-long back and forth at the U.S. Federal Communications Commission over whether internet access should be regulated as a common carrier telecommunications utility under Title II of the Communications Act or as an Information Service under Title I of the law could soon end.

That’s the likely upshot if the U.S. Supreme Court as predicted by legal pundits overturns its 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). That ruling -- which established the doctrine of judicial deference to agency administrative law interpretations of statutes when they could be construed ambiguously -- will be revisited by the high court in Loper Bright Enterprises v. Raimondo, granted review this week.

If the court abandons the Chevron doctrine as expected, the question of how internet service is to be regulated would be left to Congress and the courts rather than administrative agencies like the FCC. That could have major implications for the FCC’s current policy expressed in its 2018 Restoring Internet Freedom order, classifying internet service as an information service under Title I. Accordingly, providers are not required to honor reasonable requests for connections or subject to rate regulation by state public utility commissions had they would if classified as telecommunications providers under Title II.

Should that order come back before the Supreme Court should it overturn the Chevron doctrine, it could also be invalidated along with the court’s decision in National Cable & Telecommunications Association, et al. v Brand X Internet Services, et al. 545 US 967 (2005). Supreme Court Justice Clarence Thomas, who wrote the decision for the majority, has expressed misgivings over it. In that case, the high court ruled the FCC’s determination that internet service provided by cable companies should be regulated under Title I was a reasonable interpretation of ambiguous provisions of the 1996 Telecom Act under the Chevron doctrine. In the 18 years since the Brand X ruling, cable companies have become the dominant provider of internet connectivity in the United States.

Amid fading federalism in U.S. telecommunications policy, states on deck to regulate

For Plain Old Telephone Service (POTS), federalism underpins a scheme of shared regulatory oversight between the federal government (the Federal Communications Commission specifically) and state public utility commissions. It operates under the framework of Title II of the Communications Act of 1934 that regards telecommunications networks as a natural monopoly. Accordingly, voice telephone service is regulated as a common carrier utility to ensure it is accessible (universal service) and affordable (rate regulation by state PUCs) given the absence of market forces and buy side market power to assure that it is.

This federalist regulatory scheme does not exist for advanced, internet protocol (IP) telecommunications. Since 2018, federal policy promulgated by FCC administrative law regards it as a lightly regulated information service under Title I of the Communications Act similar to dialup services like CompuServe and America Online that were widely used in the early 1990s. Congress has not weighed in on the matter of how IP telecom is to be regulated since the 1996 Telecommunications Act, which similarly adopted a light touch, wait and see stance. Recent court rulings have cleared the path for states to move forward.

In the absence of regulatory federalism for IP-based telecommunications, one leader state is considering legislation that would regard IP telecommunications as a common carrier utility. AB 1714 would amend California’s Public Utility Act to include “broadband service” offered by a corporation (defined in the statute as including a corporation, company, an association, and a joint stock association) within the definition of a public utility. “Broadband Internet access service is defined at California Civil Code Section 3100(b) as “a mass-market retail service by wire or radio provided to customers in California that provides the capability to transmit data to, and receive data from, all or substantially all Internet endpoints, including, but not limited to, any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service.”

“Just as the infrastructure of water and electricity grew at the end of the 19th century and led to the creation of regulation to make sure that these technologies were available to everyone, the internet has grown to a point that demands it be regulated as a public utility subject to the same regulatory process to make sure that everyone has access to this technology, moving us closer to digital equity,” said the bill’s author, Assemblymember Jim Wood in a news release. 

The proposed legislation comes as AT&T California petitioned the California Public Utilities Commission to relieve it of its POTS universal service obligations as carrier of last resort in parts of the state where there are alternatives such as VOIP (Voice Over Internet Protocol) or mobile wireless.

Infrastructure Bill "broadband mapping" timeline: The fighting begins this fall

Washington, March 31, 2022 – The chair of the Federal Communications Commission said Thursday that the improved broadband maps needed to adequately disburse billions in federal infrastructure dollars will come this fall. During a House Energy and Commerce Committee Oversight hearing Thursday, Chairwoman Jessica Rosenworcel said, “Absolutely, yes. We will have [complete] maps in the fall.”

Completed Maps Will ‘Absolutely’ Be Available This Fall, FCC’s Rosenworcel Says

That will start the clock on multiple rounds of disputes over the accuracy of the maps as well as proposed advanced telecom infrastructure projects whose eligibility for 75 percent planning and construction grant funding under the Infrastructure Investment and Jobs Act of 2021 (IIJA)  is linked to the maps. The maps will determine projects ineligible for funding because less than 80 percent of addresses are deemed under IIJA provisions as "unserved:" areas where no incumbent providers offer "broadband" service of at least 100 Mbps down and 20 Mbps up. 

Here's the timeline of how these battles will likely play out, assuming the maps are issued as projected by the fall:

Fall 2022: FCC releases maps for state input as to their accuracy.

Fall 2022-Spring/Summer 2023: States dispute maps accuracy claiming they overstate “served” areas as with prior FCC "broadband maps."

Fall 2023:  After FCC deems new maps accurate, states and incumbents/WISPs continue to disagree over their accuracy.

Late 2023-Early 2024: Incumbents/ WISPs file challenges of proposed projects with states, contending they cover “served” areas.

Summer/fall 2024: Incumbents/WISPs appeal state determinations to the National Telecommunications and Information Administration (NTIA) as allowed by the IIJA.

Early 2025: States and incumbents/WISPs appeal NTIA determinations to the courts.

UK considers universal service legislative requirement

Families face paying thousands for high speed internet access | Daily Mail Online:

Every family will win the right to demand a ‘fast’ broadband connection it was announced in the Queen’s Speech yesterday, but those in remote communities may have to pay hundreds of pounds to get it. The new Digital Economy Bill hopes to finally bring broadband technology to one million people whose properties have until now been treated as economically unviable or too difficult to provide with high-speed connections. But the legislation falls short of the Conservative Party’s manifesto pledge to ensure every home gets access to so-called ‘superfast’ broadband.

         *  *  *

Adam Marshall, of the British Chambers of Commerce said: ‘If implemented in full and at pace, this could go some way to improving the poor digital connectivity that far too many firms face.’Government sources said BT, which is in line for subsidies worth 1 billion to roll out broadband to 95 per cent of homes by the end of next year, has resisted the idea of a legal guarantee. But ministers have decided the threat of legal action is needed to ensure the final five per cent of homes also get a decent connection.

It boggles the mind to consider a relatively small island nation has so many premises still off the Internet grid in 2016. The U.S. already has a universal service/nondiscrimination requirement in law per the Federal Communications Commission's 2015 Open Internet rulemaking but is not enforcing it.

Obama flat wrong, at odds with FCC in framing telecom infrastructure as competitive market

Municipal Broadband Battles | Al Jazeera America: Amid concerns in some markets that big telecoms and cable companies are providing service that is too slow and too expensive, some cities are starting their own Internet services, spending millions of dollars to bring super-high-speed, or gigabit, Internet service to their communities through a new fiber-optic infrastructure. Proponents call it the single most important piece of infrastructure of the 21st century, attracting businesses, bolstering education and raising property values.

President Barack Obama has declared community broadband, as it’s called, a key to economic prosperity. “Today I’m making my administration’s position clear on community broadband. I’m saying I’m on the side of competition,” he said. (Emphasis added)

The problem with the president's framing telecom infrastructure as a competitive market is he's just flat out wrong. It can never be a truly competitive market with many sellers and choices for consumers due to the high cost of deploying fiber to the premise infrastructure. Those high costs have kept telcos and cablecos from upgrading their legacy infrastructures and building out fiber to all customer premises in their service territories to replace the outdated metallic cables designed for voice telephone and cable TV service of decades past. Instead, they've built limited fiber to the premise in selected high density "footprints" and redlined countless American neighborhoods, leaving many still on dialup that was state of the art technology when Bill Clinton was serving his first term as president.

Moreover, by furthering the notion that telecom infrastructure is a competitive market offering, Obama is at odds with the Federal Communications Commission that -- at Obama's urging -- adopted a common carrier regulatory framework early this year predicated on telecom infrastructure as a monopolistic market. Consequently, the FCC's Open Internet rulemaking requires Internet service to be offered to all customer premises requesting it -- as telephone service before it -- under the universal service and nondiscrimination provisions of Title II the federal Communications Act.

Local governments seek federal preemption of Internet regulation

In the early 2000s as legacy cable companies contemplated offering Internet-protocol (IP) based services including Voice Over Internet Protocol (VOIP), they feared local governments that franchised their decades-old cable television services would demand they offer IP services to all neighborhoods within their jurisdiction. That prospect was very real possibility given their residents had other options for television service including over the air broadcast and satellite, but would need landline infrastructure built out in order to provide universal Internet access as demand for Internet service jumped. Also, by offering voice service via VOIP, cablecos began emulating telephone companies that are required to offer universal service to any premise requesting it.

To head off what to them appeared to be a costly prospect, cablecos heavily lobbied state governments to preempt the locals by giving state public utility commissions franchise authority over IPTV. While nominally limited to video services, for both cablecos and phone companies the move forestalled for many years any local requirements they upgrade and build out their Internet infrastructure since their video services are typically bundled as part of landline premise Internet service.

Now more than a decade later, local governments are getting in on the preemption game. Since their oxen were gored by their states at the behest of the legacy incumbent cablecos and telcos, they are looking to the federal government for relief. An example is the Federal Communications Commission’s order earlier this year to preempt statutes in two states barring local governments from building their own infrastructure. Doing so would allow local governments to get around the state sanction of the incumbents’ redlining practices.

In Arizona, local governments appear to be looking to the feds to resolve a dispute involving the city, a legacy cableco and Google Fiber over the city’s regulation of video services. “The City believes these questions will more likely be resolved more definitively in the future by the Federal Communications Commission or a similar authority,” said Scottsdale Chief Information Officer Brad Hartig in a statement. (H/T to DSLReports).

In California, two legacy telcos are making an argument that would place Internet services in a regulatory non man’s land, subject to neither state nor federal jurisdiction. Frontier and Verizon contend regulation of Internet service falls under federal jurisdiction per the FCC’s order classifying Internet as a common carrier telecommunications service under Title II of the federal Communications Act. But at the same time, they argue that order does not preempt California law giving the California Public Utilities Commission jurisdiction over legacy (non IP-enabled) telephone service but not Internet services. (Item here at Steve Blum’s Blog)

Electric power transmission towers and poles provide existing fiber to the premise infrastructure

Nearly two decades ago, investor-owned electric power provider Pacific Gas and Electric Co. considered installing fiber optic telecommunications cable on its poles and towers and leasing it to cooperatives, telephone and Internet service providers. In 2006, PG&E was in discussions with a startup, Current Communications, hoping to roll out new technology to deliver Internet over electrical lines known as Broadband over Power Lines (BPL).

The talks shorted out over money and BPL ultimately proved technologically unfeasible. Interestingly, one of the investors in Current Communications along with General Electric and EarthLink was Google.

Nearly a decade later, Google is building its own fiber to the premise network in two metro areas of the United States and is considering several others although recently put its expansion plans on hold, most likely until the U.S. Federal Communications Commission decides this year whether to regulate Internet service as a common carrier telecommunications utility. Should the FCC do so under Title II of the Communications Act, Google in a December 30, 2014 letter urged the FCC to enforce compliance with Section 224 of the statute requiring utilities such as PG&E to provide access to its poles, conduits and rights of way on reasonable terms and conditions.

controls poles, ducts, conduits, or rights-of-way used, - See more at: http://codes.lp.findlaw.com/uscode/47/5/II/I/224#sthash.YCBB6J1R.dpuf

In the meantime, Google Fiber and PG&E might consider exploring a joint venture that would give Google access to PG&E’s transmission towers and poles that provide existing infrastructure serving millions of premises to speed the deployment of its fiber network. PG&E itself should look not only at Google Fiber but also consider forming a subsidiary that would build an open access wholesale fiber to the premise network. It could then lease access to Google Fiber and other ISPs. (I'll even host the discussions -- off the record, of course --- and some fine Cabernet at an undisclosed winery location if the companies are interested).

Disruptive forces bringing U.S. telecommunications infrastructure to an inflection point

Several disruptive forces are building toward a tipping point heralding a new era of construction, operation and regulation of telecommunications infrastructure in the United States. 

• The realization amid exponential growth in bandwidth demand that the nation needs to rapidly fiber up its legacy metal wire infrastructure and should have begun the work 20 years ago.
• The growth of local fiber to the premise infrastructure projects inspired by Google Fiber and the associated push back against state laws restricting the ability of local governments to build and operate telecom infrastructure.
• The obsolescence of bandwidth-defined "broadband" delivered over legacy metal wire infrastructure as an extension of plain old telephone service (POTS) and cable TV.
• The Federal Communications Commission's potential classification of Internet infrastructure as a common carrier telecommunications service amid growing popular sentiment that premise Internet service is a utility that should be universally available. 
• Excessive commercial risk that limits fiber infrastructure deployment to discrete neighborhoods.
• The recognition of the large moral hazard risk associated with public policy reliance on incumbent promises to build out the footprints of Internet infrastructure in their service territories.
• Growing unease with Comcast gaining excessive market power and getting a lock on most U.S. Internet premise infrastructure.
• The breakdown of the triple play "smart pipe" vertical business model due to high video programming costs and the rise of a la carte Internet video offerings.

South Korea’s gigabit broadband woes should serve as object lesson for FCC regulators | Network World

South Korea’s gigabit broadband woes should serve as object lesson for FCC regulators | Network World: Private South Korean firms, notably KT (the former Korea Telecom), SK Telecom and the cable provider CJ Hellovision, became the principal participants in the gigabit project, with the government committing about 5 percent of the total estimated budget.

But by 2011, only a very small-scale 1Gbps pilot project with 1,500 households in five South Korean cities had been launched, all with government funding. None of the private firms could make a case for moving ahead, however, since they had not yet developed a business model to justify the scale of investment that the KCC had said would be necessary.

Three years passed without any indication of progress on the effort, leading many to believe that the plan had hit an impasse. Then in July 2014, Chairman Chang-gyu Hwang of KT, the dominant broadband provider in Korea, representing almost half of the country’s total broadband market share, called a press conference—an announcement that I hoped would be an encouraging milestone.

Chairman Hwang told those assembled that the company faced its first annual deficit in 2013 due to its sales declines in wired broadband, along with almost-flat growth in mobile subscribers. It was the worst time in the company’s history, one that he called a “devastating year of poor performance.” KT even had suspended new customer marketing for 45 days and asked 8,300 employees to voluntarily resign to help the company overcome this crisis.

The real object lesson here is commercial investment in high cost telecommunications infrastructure is fraught with substantial business risk. It's that business risk -- and not the risk of common carrier regulation as some such as this article warn -- that produces market failure that in the United States has left some 19 million homes and small businesses without wireline Internet access according to Federal Communications Commission estimates.

The Great Wall of incumbent telecommunications infrastructure

Every divided territory has a boundary, border or wall mark its limits. Throughout much of the United States, it's that place where despite having plenty of existing infrastructure, incumbent telephone and cable companies draw an arbitrary boundary where the "footprint" of their landline telecommunications infrastructure capable of providing modern Internet service ends and the digital divide begins.

 
On the other side of the border, digital subscriber line (DSL) signals peter out and can't reliably provide service over twisted pair copper designed for a time when the Internet hadn't yet been conceived. There are also pockets of homes and small businesses in sufficiently close proximity of each other to qualify for cable Internet service, but do not because there are aren't enough along short spans of roadway between them and the wall's edge. Like border signs, the boundaries of these areas are often demarcated with utility pole advertisements offering those in the digitally deprived zone "New Super Fast Internet" that's actually substandard satellite service that should only be offered in the most remote and isolated areas of the U.S.

The U.S. Federal Communications Commission could tear down the wall by enforcing the universal service provision of Title II, Section 254(b) of the Communications Act of 1934 (as amended in 1996) that provides that access to advanced telecommunications and information services be available in all regions of the nation. Section 202 of the law also contains an anti-redlining provision barring providers from discriminating against localities in providing service.

FCC chair signals end of “broadband” era and rise of FTTP

Sooner or later – more likely sooner – the Federal Communications Commission (FCC) will recognize the irrelevance and futility of defining and subsidizing landline premise telecommunications infrastructure based on specified “broadband” download and upload speeds as Internet bandwidth demand growth tracks Moore’s Law for microprocessor processing power, doubling every 18-24 months.

Consequently, it will likely repurpose the mission of the FCC’s Connect America Fund (CAF) program created to subsidize infrastructure construction in high cost areas to instead help defray the cost of deploying fiber to the premise (FTTP) infrastructure in these areas. At the same time, the FCC could also realize that significantly greater funding will be needed to do the job than the $9 billion the CAF has budgeted for its second phase covering the period 2014-2019.

The FCC this year recognized that its current eligibility criterion for CAF subsidies is potentially outdated. It’s targeted to high cost areas where premises are not served by landline connections providing at least 4 Mbs down and 1 Mbs up. The FCC issued a notice of inquiry in August to take testimony as to whether that standard should be increased and modified to include latency as well as speed.

In prepared remarks delivered this week, FCC Chairman Tom Wheeler suggested 25 Mbs should be considered the new minimum. He went on to observe that might also be too low and only a quarter of the throughput that Americans presently expect given their growing appetites for high definition streaming video and multiple connected devices in their homes and small businesses.

“Today, a majority of American homes have access to 100 Mbs,” Wheeler continued. “It is that kind of bandwidth that we should be pointing to as we move further into the 21st century. And while it’s good that a majority of American homes have access to 100 Mbs, it is not acceptable that more than 40 percent do not.”

Relative to high cost areas, Wheeler noted the FCC “will continue to establish requirements for our universal service programs, but beyond that, consumers are establishing their own expectations.” That recognition of end user needs represents a significant departure from existing policy where telecommunications providers and governments tell consumers in these areas what they should expect instead of the reverse. It’s also an implicit recognition that there should be a single standard and not a separate and lesser standard for high cost areas of the nation. Which makes sense given that core content providers and other services are tailored for a single standard of quality at the network edge.

Noting FTTP deployments in several metro areas of the U.S., Wheeler impliedly recognized FTTP infrastructure is replacing the speed-based “broadband” metal wire paradigm of the legacy telephone and cable companies. That model utilizes “bandwidth by the bucket,” speed-based pricing tiers based on the assumption that metal wire infrastructure has limited carrying capacity and that service must accordingly be rationed and priced based on demand.

Wheeler recognized with FTTP, that pricing model that irks many consumers faces obsolescence. “Once fiber is in place, its beauty is that throughput increases are largely a matter of upgrading the electronics at both ends, something that costs much less than laying new connections,” Wheeler said.

Wheeler also acknowledged that mobile wireless services cannot substitute for FTTP. “While LTE and LTE-A offer new potential, consumers have yet to see how these technologies will be used to offer fixed wireless service,” he said.

FCC's Wheeler: US needs more high-speed broadband competition | PCWorld

FCC's Wheeler: US needs more high-speed broadband competition | PCWorld: U.S. residents lack meaningful choices for broadband providers that offer 25Mbps or faster download speeds, and the U.S. Federal Communications Commission will push for more competition, the agency’s chairman said Thursday.

While more than 93 percent of U.S. residents have access to a broadband provider, fewer than 15 percent can buy service from more than two wired providers that offer “yesterday’s broadband” with 4Mbps download speeds, FCC Chairman Tom Wheeler said during a speech at Washington, D.C., startup incubator 1776.

“At the low end of throughput ... the majority of Americans have a choice of only two providers,” Wheeler said. “That is what economists call a duopoly, a marketplace that is typically characterized by less than vibrant competition.

As long as Internet service providers own the infrastructure that connects customer premises, there will never be any meaningful degree of competition, owing to the fact that telecommunications infrastructure due to high costs and barriers to entry functions in a natural monopoly market. As Andrew Cohill wrote in his 2010 white paper, that's about as inefficient and senseless as having FedEx or UPS operate proprietary roads to serve neighborhoods that are closed to competing shipping services.

The policy of the United States has been to preserve this very market structure of which the Federal Communications Commission chair laments. What's needed to achieve any level of real competition is to encourage and fund the construction of publicly owned open access fiber to the premise networks where ISPs compete to sell services to customer premises. Call it the public option for telecommunications in the Internet age.

Latta ascribes wrong cause to constrained investment in last mile infrastructure

Rep. Bob Latta Weighs in on STELA, Title II & E-Rate | USTelecom: On the topic of Title II, net neutrality and broadband legislation, Latta said, “First of all, I believe in an open Internet — a free Internet without government intervention. When you look at where the Internet has come and where it’s going in the future, this has all been done on the private sector. It’s not been done because of what the Federal government has done.” According to Latta, by putting broadband under Title II to make it more like telecommunications using a law from 1935, “What we will see happen then is that the innovation out there that’s spurred about a trillion dollars in private investment is all of a sudden going to be tied up like it would be with a telephone company. We don’t want that. Because once you start that up, then all of a sudden innovation is going to slow up — not only innovation — the dollars put in it and the tens of thousands of jobs being created. So we don’t want that to happen. We want to make sure that it remains free, it stays open and it stays away from government control.”

The problem with this position is regulation isn't the cause of what the Federal Communications Commission estimates as nearly 20 million Americans who are not offered landline Internet connections to their homes. In addition, much of the nation remains served by outdated twisted pair copper plant built many decades ago for analog telephone service and not fiber to the premise needed today and in the future as bandwidth demand grows dramatically.

If legacy telephone and cable companies had innovative solutions to build that necessary infrastructure, they would have pursued them over the past two decades. They haven't been able to do so not because of regulatory burdens but rather market failure on the sell side. It's because their business models are oriented to gaining a return on infrastructure capital investment over time frames far shorter than what's needed given the high costs -- mostly labor -- of deploying that infrastructure. It is this economic consideration that stifles investment in last mile Internet infrastructure in the United States, not regulation.

Telcos’ copper cable plants deteriorate with no clear plans to replace them with fiber

A crisis affecting Americans who obtain premises telecommunications services (Internet, voice, and video) from legacy telephone companies has been slowly unfolding over the past 10 years. 

These companies’ copper cable plants are growing very aged and nearing the end of their useful lives with no clear plan to replace them with fiber optic cables.

The problem has worsened in the past decade as telcos have concentrated their infrastructure investments on mobile wireless services while all but ignoring their deteriorating landline cable plants. Much of it is in such poor condition that it can’t deliver any Internet connectivity or only marginally at sluggish speeds.

One strategy going forward is to sell as AT&T is doing with its Connecticut residential landline unit. However, in parts of telcos’ service territories where the copper cable plant is ancient and a fully depreciated asset, it’s questionable as to what value any potential buyer would see in such a deal.

A possible path to resolution of this crisis could come later this year if the U.S. Federal Communications Commission opts to subject Internet protocol-based services to common carrier and universal service requirements under Title II of the Telecommunications Act of 1934.

“Broadband” infrastructure subsidy programs falling behind in the gigabit world

As telecommunications becomes an Internet-based, fiber delivered service, programs aimed at subsidizing the cost of infrastructure construction are rapidly going out of date. For example, the U.S. federal government’s Connect America Fund helps underwrite the cost of building infrastructure in areas with service providing Internet connections of less than 3 Mbs down and 1 Mbs up. The California Advanced Services Fund targets areas with less than 6 Mbs down and 1.5 Mbs up. Both definitions are now technologically obsolete in that they are purposed for “broadband" service and define "broadband" based on a moving and quickly obsoleted throughput target that only measures speed but not latency or jitter --  key components of throughput quality.

It's no longer a broadband environment where the term broadband was used to distinguish advanced services from 1990s "narrowband" dialup. It's now a "gigabit" world of fiber to the premise (FTTP) that can provide exponentially superior throughput with no near term threat of obsolescence.

In addition to using an outdated and incomplete measure of throughput, these programs are deeply flawed insofar as they aim to preserve the hegemony of the legacy metal wire-based legacy telephone and cable companies with eligibility standards based on the companies’ need to constrain bandwidth on their bandwidth-limited metal wire plants. Program subsidies are only available in areas deemed “underserved” and “unserved” relative to services provided – and not provided -- by the incumbents. 

This isn't a practical definition since the footprint of wireline-based services of the incumbents is highly granular at the network edge due to market segmentation and arbitrary redlining of discrete neighborhoods deemed undesirable and therefore unserviceable.

For the most part, the large first tier incumbent telcos and cablecos have spurned the subsidies, probably because they are far too limited to allow them to significantly upgrade their plants to FTTP. They also likely realize accepting subsidy funding would potentially increase pressure on them to provide service to all premises in their service territories as some advocate, urging the U.S. Federal Communications Commission to regulate the Internet under a common carrier scheme like that in place for decades for voice telephone service.

FCC reports contradict ISP claims that build out requirement would deter infrastructure investment

Broadband CEOs to FCC: We're not a utility - CNET: The main argument from the CEOs is that reclassifying broadband services so that they're regulated like the telephone network rather than the light regulatory approach the FCC currently takes with the Internet would kill future investment in broadband networks. They argue that the current regulatory framework is why broadband and wireless companies invest more than $60 billion a year in their networks. They claim this more than $1.2 trillion investment over the years has resulted in great improvements in broadband networks every year.

If this is in fact true, consider that the U.S. Federal Communications Commission (FCC) found insufficient deployment of Internet infrastructure in annual progress reports mandated by the 1996 Telecommunications Act. In 2011, the FCC concluded a "significant and persistent deployment gap" in Internet telecommunications infrastructure deprives as many as 26 million Americans of Internet access.

Time for the FCC to hit the reset button on Internet regulation

Congressional Democrats jump into net neutrality mix - Tony Romm and Brooks Boliek - POLITICO.com: AT&T, meanwhile, launched a counteroffensive. Executives from the company warned the FCC in a Thursday meeting not to reclassify broadband as a telecommunications service, saying such a step “would ignite multiyear regulatory controversies on a variety of issues,” according to a filing with the commission. Telecoms dislike that approach because they fear new regulations would unfairly restrict their business.

By classifying Internet service on a par with telephone service subject to common carrier mandates that all premises be offered service, the U.S. Federal Communications Commission (FCC) would not be restricting telecoms. Just the opposite. It would be opening up their markets beyond where they want to go by forcing them to embrace the fact that the Internet is the new telecommunications system. Notably, that's something the telcos themselves acknowledge in petitioning the FCC for relief from rules governing analog plain old telephone service (POTS) so they can allocate more capital investment to Internet infrastructure. With this reclassification of the Internet as a telecommunications service, telcos would be barred from their current market segmentation practices that arbitrarily redline parts of neighborhoods and even discrete roads and streets.

Telcos have been trying to hold onto the past by acting as if it's still 1996 and the Internet is a novel information service and not the global telecommunications service it has now become, carrying voice, data and video. It's time for the FCC to do an intervention and point to a calendar that reads 2014 (and for the Obama administration to fire the enablers who help the telcos cling to the past.) And at the same time, develop a new regulatory framework that allows a fair and orderly settlement scheme across all network layers and boundary points as called for by industry expert Michael Elling. As Elling correctly points out, that's what the "net neutrality" debate is really all about.

Top Cable Lobbyist Argues Against Broadband as Utility - NYTimes.com - NYTimes.com

Top Cable Lobbyist Argues Against Broadband as Utility - NYTimes.com - NYTimes.com: While the Internet and broadband systems were built “with the help of the government,” Mr. Powell said, “they have suffered terribly chronic underinvestment.” In 2002, when Mr. Powell was chairman of the F.C.C., the agency voted to regulate cable-modem broadband service as a lightly regulated “information service” rather than as a “common carrier.”

Mr. Powell, a former U.S. Federal Communications Commission chairman, correctly diagnoses the poor state of American Internet telecommunications infrastructure in characterizing it as suffering from chronic underinvestment. But oddly, he offers the wrong remedy in declaring the government should take a hands off approach and avoid treating it as a common telecommunications carrier like landline telephone service, available to anyone who wishes to order it.

That's been the status quo since the 1996 Communications Act become law, leaving about a quarter or more of all premises without modern landline Internet access, with some still offered only dialup service that most Americans were using since before the law was enacted. Powell's tortured logic would suggest that requiring Internet service providers serve all premises will somehow make that sorry situation worse. It simply doesn't add up.

Creating a Two-Speed Internet - NYTimes.com

Creating a Two-Speed Internet - NYTimes.com: Mr. Wheeler is seeking public comment on this option, but he is not in favor of it. Even though the appeals court has said the F.C.C. has authority to reclassify broadband, the agency has not done so because phone and cable companies, along with their mostly Republican supporters in Congress, strongly oppose it.

The incumbent telephone and cable companies want to do this because they want to keep alive the fantasy that the Internet is not a telecommunications service but rather a "broadband" or "information" service. It's the same old "fight the future" strategy they've employed for at least a decade.

In 2007, President Obama said one of the best things about the Internet “is that there is this incredible equality there” and charging “different rates to different websites” would destroy that principle. The proposal from Mr. Wheeler, an Obama appointee, would do just that.

Quite a damning indictment of the Obama administration's telecommunications policy -- or absence thereof.