Sohn questions key policy premise of 1996 Telecommunications Act

Gigi Sohn, executive director of the American Association of Public Broadband, made a profound observation on U.S. telecommunications policy in a podcast interview this week with Mike Masnick of TechDirt at (around 47:50)

 “The facilities-based competition when you have cable competing against telecom competing against wireless, maybe wasn’t the best idea."

Sohn is essentially -- and astutely-- questioning a fundamental policy premise of the 1996 Telecommunications Act and once held by her former boss, Federal Communications Commission Chairman Tom Wheeler: that facilities-based competition would unleash market forces that would benefit all Americans by bringing them affordable Internet access. 

This is also referred to as "technological neutrality" in the context of subsidizing advanced telecommunications infrastructure. The assumption baked into law -- along with opening up the legacy metallic copper telephone delivery plant to Internet Service Providers -- is market competition would benefit all Americans regardless of their location by bringing them access to the then-emerging form of digital telecommunications. 

It was incorrect largely because fiber optic delivery technology existed in the 1990s that was technologically capable of modernizing the legacy copper and cable coax connections to homes, businesses and institutions. No technology has emerged since that's superior to fiber when it comes to delivering high quality, reliable digital, voice and video services.

Another fundamental flaw in this policy was seeing connectivity as a market commodity of "broadband bandwidth" instead of a natural monopoly that utilities are and where market forces don't operate to benefit buyers and instead strongly favor sellers. A single fiber connection would suffice; fiber to the premises (FTTP) should have been designated as the national telecom delivery infrastructure standard. There is no need for more than one fiber connection or other type of technologies for premise service.

Why the “more competition” argument for better Internet service is misguided

Hardly a day goes by without calls for “more competition” as the elixir to make modern Internet-based telecommunications services more widely available and offering better value than those offered by the legacy incumbent telephone and cable companies. U.S. Federal Communications Commission Chairman Tom Wheeler has curiously joined the chorus calling for more competition -- even though his agency and its 2015 Open Internet rules are predicated on regulating Internet service as a natural monopoly common carrier utility.

The problem is telecom infrastructure by nature isn’t a competitive market defined as having many sellers and buyers. There are many buyers but there cannot be many sellers because it’s too costly and economically inefficient to have multiple providers building and owning infrastructure connecting homes and businesses. More competition isn’t a solution here. 

In the states, the legacy incumbents reinforce the notion of competition by blocking projects that would threaten their service territory monopolies. From their perspective, these projects represent competition because they would potentially steal away customers. Therefore, proponents reason, competition must be a good thing if the incumbents oppose it. This however illustrates the faulty reasoning of the “more competition” argument. 

The problem is the pro-competition proponents are buying into the incumbents’ concept of competition -- and not a consumer perspective. For the incumbents, any project that would build infrastructure in their service territories is competition. However, for consumers, having a choice among many sellers is competition. That’s not possible with telecommunications infrastructure. But it is possible if the infrastructure is publicly owned like roads and highways. That would open up Internet service to competition since multiple Internet service providers could offer their services over that infrastructure.

Tom Wheeler tells cable industry to stop complaining, start competing | Ars Technica

Tom Wheeler tells cable industry to stop complaining, start competing | Ars Technica: Part of looking forward, in Wheeler's opinion, is boosting competition. With some exceptions, cable companies have generally not competed against each other, letting a single company dominate each region instead of "overbuilding" in each other's territory.

"You don't have a lot of competition, especially at the higher speeds that are increasingly important to the consumer of online video," Wheeler said. This means there isn't the kind of "intense and constant pressure to continue to improve" as there was in the days when DSL posed a serious threat to cable, he said.

The thing is, Mr. Chairman, telecommunications infrastructure doesn't easily lend itself to competition due to the high costs to build and maintain it. It functions as a natural monopoly like roads and highways and electrical distribution infrastructure. We don't build competing thoroughfares to offer motorists the choice of taking Highway "A" and "B" and "C," for example from the same starting point to the same destination. Or multiple power lines serving the same property. Having multiple landline Internet connections passing by premises is similarly overkill and economically wasteful. Just ask any of the legacy phone companies who feel compelled to issue news releases announcing "gigabit fiber" to compete with Google Fiber. It's a helluva lot cheaper to issue a news release than to actually overbuild competing infrastructure and doesn't risk the ire of shareholders averse to big capital expenditures.

The competition Wheeler's FCC and the federal government should be supporting is helping fund the planning and construction of open access fiber to the premise telecommunications infrastructure over which Internet Service Providers would compete to sell services to customer premises. This would also potentially provide greater opportunity for new services than could be offered over a vertically integrated cable provider that owns both the pipe and the services offered over it.

For consumers, Title II common carrier universal service obligation far more important than net neutrality

U.S. Federal Communications Commission Chairman Tom Wheeler’s trial balloon proposing to place monopolistic Internet service providers under Title II of the Communications Act and subjecting them to common carrier utility regulation has generated considerable discussion and media coverage of net neutrality – the principle that all Internet traffic be handled equally by Internet Service Providers (ISPs). The net neutrality issue applies at the deeper layers of the Internet affecting business relationships between core content providers like Netflix and Yahoo and so-called “transport layer” players like Level 3 Communications, Verizon and AT&T. Wheeler proposes that Title II regulation would enable the FCC to place rules on these arrangements to ensure they are “just and reasonable” and prohibit blocking, throttling and paid prioritization.

All the discussion over net neutrality however has overshadowed a far more important element of Title II that would apply to common telecommunications carriers -- which ISPs would be deemed if the FCC ultimately adopts rules later this month placing ISPs under Title II. ISPs would no longer be able to serve only parts of communities and even portions of roads and streets, a problem the FCC recognizes leaves millions of Americans unserved by wireline Internet connections in a report issued last month. Like telephone providers currently subject to universal service mandates under Title II regulation, any premise would be able to order Internet service meeting specified standards. ISPs aren’t going to like the disruption that brings to their business models based on market segmentation and redlining less densely populated – and desirable -- neighborhoods. Even municipally-operated ISPs don’t relish the prospect, filing a letter this week with the FCC opposing a potential Title II rulemaking:

“[W]e fear that Title II regulation will undermine the business model that supports our network, raises our costs and hinders our ability to further deploy broadband…Our ability to repay current debt obligations and raise capital at attractive rates could well be adversely affected if we lose control over our retail rates or the use of and access to our networks.”

Some believe the universal service requirement will be applied only relative to eligibility for federal infrastructure subsidies for high cost areas offered through the FCC’s Connect America Fund (CAF). If that ends up being the case in whatever rules the FCC ultimately adopts, it won’t likely move the needle much to speed up infrastructure deployment to these areas since there is little business incentive for ISPs to tap into the grossly underfunded CAF as they concentrate on select wireline market segments and mobile wireless services.

FCC Chair Wheeler may still be trying to split the baby on regulation of Internet as common carrier telecom service

U.S. Federal Communications Commission Chairman Tom Wheeler issued a fact sheet today summarizing a draft rulemaking the FCC will vote on this month to classify Internet service as a common carrier telecommunications utility under Title II of the Communications Act. It should be borne in mind this document represents a starting point in the FCC's deliberations preceding formal promulgation of proposed regulations and the public comment period before their final adoption.

Here are some quick takes on some of the provisions mentioned in the FCC fact sheet:

Reasonable Network Management: For the purposes of the rules, other than paid prioritization, an ISP may engage in reasonable network management. This recognizes the need of broadband providers to manage the technical and engineering aspects of their networks.

This is a big loophole that will likely send net neutrality proponents up the wall. A major friction point between core content providers and ISPs is the edge ISPs won't upgrade their last mile networks to fiber to support higher throughput. "Reasonable network management" could thus mean core content will have to be throttled so as to not overwhelm their networks.
 

Some data services do not go over the public Internet, and therefore are not “broadband Internet access” services subject to Title II oversight (VoIP from a cable system is an example,

This carves out Internet voice service from Title II -- a major telecommunications service.

Bolsters universal service fund support for broadband service in the future through partial application of Section 254.

It will be interesting to see what exactly "partial" means. Section 254(b) of the Communications Act requires common carriers to provide access to advanced telecommunications and information services (i.e. Internet service) in all regions of the nation. Will the FCC provide waivers for some areas of the country even as it finds Internet infrastructure is not being timely deployed to all parts of the nation?

The proposed Order applies “core” provisions of Title II: Sections 201 and 202 (e.g., no
“unjust and unreasonable practices.”

Section 202 bars “discrimination in charges, practices, classifications, regulations, facilities, or services...” It also contains an anti-redlining provision barring providers from discriminating against localities in providing service. That means dominant providers would have to serve all premises in their service territories and not just selected neighborhoods, roads and streets as is current practice.

No last-mile unbundling.

This effectively neuters common carrier under Title II and protects the closed access monopoly incumbent providers enjoy over what services are sold to customers since they would continue to be able to bar access to ISPs offering competing content and services.

FCC pronouncements on Internet adequacy won't address U.S. telecom infrastructure deficit

Only 25Mbps and up will qualify as broadband under new FCC definition | Ars Technica: FCC Chairman Tom Wheeler today is proposing to raise the definition of broadband from 4Mbps downstream and 1Mbps upstream to 25Mbps down and 3Mbps up.

As part of the Annual Broadband Progress Report mandated by Congress, the Federal Communications Commission has to determine whether broadband “is being deployed to all Americans in a reasonable and timely fashion.” The FCC’s latest report, circulated by Wheeler in draft form to fellow commissioners, “finds that broadband is not being deployed to all Americans in a reasonable and timely fashion, especially in rural areas, on Tribal lands, and in US Territories,” according to a fact sheet the FCC provided to Ars.

Unless the U.S. Federal Communications Commission under Wheeler's chairmanship decides this year to reclassify Internet service as a common carrier utility that like telephone service must be offered to all premises that request it, the FCC will find itself issuing similar findings next year and every year thereafter.

Blair Levin, who served as chief of staff to one of Wheeler's FCC predecessors, Reed Hundt, predicted in 2012 that for the foreseeable, the best wireline network available to most Americans will be the same one they had then. Nearly three years later, that will remain the case regardless of any FCC pronouncements of what constitutes adequate Internet service and whether Internet infrastructure is being deployed in a timely manner -- lacking meaningful action.

Section 706 of Telecom Act offers FCC little to address telecom infrastructure deficit

Net neutrality storm engulfs FCC - POLITICO: FCC officials are meeting with congressional staff this week as Wheeler tries to better explain the options on the table to industry players and the public interest community. Across those meetings, the FCC chairman and his aides haven’t tipped their hand about how they want to proceed, according to multiple sources. The officials have given a rundown of the various options, including adopting the utility-style regulation known as Title II, using a weaker authority known as Section 706 or some combination of the two — but failed to lay out a clear path forward, the sources said.

Section 706, found in Title VII (Miscellaneous Provisions) of the Communications Act, isn't really a mandate on telecommunications providers. Rather, it merely affords the Federal Communications Commission authority to issue rules creating incentives to remove barriers to telecommunications infrastructure investment and to promote competition.

The main barrier to wireline Internet infrastructure investment that according to the FCC has left about 19 million American homes without Internet connections is economic, not regulatory. The business models of investor-owned providers typically require relatively quick return on monies invested to build infrastructure. In less densely populated areas, there is greater risk that standard won't be met, extending out the time for investors to break even and begin generating profits. No FCC rulemaking can change those economics.

The FCC provides subsidies to help bridge the gap (the Connect America Fund), but providers have generally spurned them. Instead, they've concentrated capital investments in more densely populated and profitable parts of their service territories and in mobile wireless services.

As for removing barriers to competition, there is little the FCC can do within the existing market-based model for telecommunications service. That's because telecommunications infrastructure is a natural monopoly that due to high cost and risk barriers deters would be competitors from entering the market.

FCC Chair Wheeler faces either/or choice on Internet regulation; the baby can't be split.

Obama’s call for an open Internet puts him at odds with regulators - The Washington Post: Huddled in an FCC conference room Monday with officials from major Web companies, including Google, Yahoo and Etsy, agency Chairman Tom Wheeler said he has preferred a more nuanced solution. That approach would deliver some of what Obama wants but also would address the concerns of the companies that provide Internet access to millions of Americans, such as Comcast, Time Warner Cable and AT&T. “What you want is what everyone wants: an open Internet that doesn’t affect your business,” a visibly frustrated Wheeler said at the meeting, according to four people who attended. “What I’ve got to figure out is how to split the baby.”

It's natural given Tom Wheeler's background as a telecom lobbyist that he would look for some kind of deal or compromise that opposing parties in a contentious policy issue can live with. But that's not what President Obama -- who designated Wheeler as Federal Communications Commission chair -- had in mind when he issued a statement this week calling on the FCC to issue rules defining Internet service a common carrier telecommunications service under Title II of the Communications Act instead of a more narrowly offered, specialized information service under Title I of the statute. These are entirely different regulatory schemes that don't lend themselves to hybrid models. It's an either/or choice. The baby can't be split. Moreover, doing so will only create legal uncertainty and fuel litigation. Rather than satisfying various stakeholders, none will be happy and more inclined to turn to the courts for redress of their grievances, potentially creating years of regulatory uncertainty.

Judging from the millions of comments filed with the FCC on the question, it's eminently clear the public preference is for Title II common carrier regulation of Internet service providers. Which makes sense given the Internet is gradually replacing the role the telephone system served in the past: a universal communications system accessible to everyone regardless of their location and whether they received or placed calls. Even the legacy incumbent telephone companies agree, saying it doesn't make sense for them to have to adhere to regulations governing landline telephone service.

Bottom line at this point, this is now primarily a political and not a regulatory issue. As such, expect politics to come more sharply into play. If Wheeler can't bring himself to make a clear policy call for Title II, President Obama could end up designating another Democrat on the FCC to replace him as chair. Speaking of Democratic politicians, I expect former President Bill Clinton will weigh in siding with Obama, saying something like Title II was where he ultimately intended Internet regulation to go when he signed the 1996 Telecommunications Act into law, with Title I more of a transitional but not permanent regulatory scheme. His vice president, Al Gore, could also join the Title II juggernaut.

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.