Core issue before FCC's proposed Title II rules: regulating advanced telecom as a common carrier utility

Conventional economic theory distinguishes a public utility from a supplier of goods and services in a market by identifying whether the good in question is a monopoly. In many parts of urban and rural California, internet services are indeed a monopoly—or at best a duopoly.

The common policy response to the monopoly is to either place the service provider into public hands or use a regulatory framework to curtail the ability of the provider to exploit a monopoly position. Once in the public hands, the service provider can be compelled to prioritize social outcomes, such as equity of access, affordability, or similar—exactly from which our California communities stand to benefit since many currently lack equitable access to affordable, reliable broadband internet.

https://20mm.org/2024/03/19/over-100-years-after-electrification-will-california-lead-way-internet-as-a-public-utility/

While the context here is California, this is the core issue before the U.S. Federal Communications Commission with its proposed Safeguarding and Securing the Open Internet rulemaking that would reclassify IP telecom as a common carrier utility under Title II of the Communications Act.

It's controversial because some policymakers paradoxically regard this service as a competitive market of price tiered "broadband" bandwidth, in diametrical opposition to the public utility framework described above that does not. Hence, their rationale is the interests of market makers and those who invest in it should take priority over the broader public interest. It's a black and white debate that over the past three decades has favored the former over the latter, making the investors winners and the public losers. 

The fundamental challenge for public policymakers is to alter this win/lose dynamic and develop a scheme where all interests can win. It's politically possible given access to advanced telecommunications is a nonpartisan issue widely seen as broadly beneficial for all aspects of society.

Infrastructure Act gives FCC option to route around “broadband map” delays

The Infrastructure Investment and Jobs Act (IIJA) allocates $43.45 billion in grants to the states for the construction of advanced telecommunications infrastructure. The IIJA links the amount of that funding for a given state to geographic service availability data collected by the U.S. Federal Communications Commission as required by the 2020 Broadband Deployment Accuracy and Technological Availability (DATA) Act. That data is integral to determining eligible infrastructure projects for which the states can fund up to 75 percent of construction costs. The FCC announced this week announced data as of June 30, 2022 is due to the FCC by September 1, 2022.

However, final datasets are likely be delayed into 2023 and possibly beyond. Provisions of the DATA Act and FCC regulations implementing it authorizing state, local, and tribal governments and other entities or individuals to challenge their accuracy. The IIJA requires the FCC to timely resolve challenges within 90 days after the final response by a provider to a challenge.

States and local governments have complained for years FCC data overstates the availability of landline and mobile wireless advanced telecommunications availability. That historical point of tension between federal and state/local government will likely to be heightened given the large amount of funding the IIJA appropriates for advanced telecommunications infrastructure. Some states anxious to remedy infrastructure deficits magnified over the past two years by pandemic public health measures have developed their own data and suggested it should be utilized rather than the FCC’s for IIJA funding given the urgent funding need.

Additionally, the IIJA requires states to establish a process allow nonprofits, local governments and service providers to challenge grant awards. The IIJA also authorizes the National Telecommunications and Information Administration to modify the challenge process and overturn state determinations on challenges. Challenges to these IIJA funded projects are likely from incumbent commercial landline and wireless service providers claiming a proposed infrastructure project would “overbuild” their proprietary infrastructure and duplicate their advertised services as shown in availability data.

The IIJA provides the FCC the option to circumvent the service availability data-based eligibility standard and associated controversy and delay. Section 60102(a) of the IIJA defines project eligibility based on either the availability data being compiled by the FCC or for areas lacking access to “broadband service” as defined by the FCC’s 2018 Internet Freedom rulemaking “or any successor regulation.”

Such a regulation could be in the offing. In a July 2021 executive order, President Joe Biden encouraged the FCC to adopt new rules similar to the FCC’s superseded 2015 Open Internet rulemaking that classified Internet protocol delivered service as telecommunications utilities regulated under Title II of the Communications Act of 1934. This gives the FCC an opportunity to redefine “broadband service” using a utility delivery infrastructure definition and specifically fiber optic infrastructure.

Why advanced telecommunications infrastructure subsidies don’t make Internet service available to all Americans – explained in five points

1. For many decades, federal and state governments surcharged phone bills to subsidize infrastructure for voice telephone service in high cost areas. These subsidies paid to telephone companies made sense because the companies had an obligation to honor reasonable requests for service – the universal service mandate for telecommunications services under Title II of the Communications Act of 1934. But that requirement does not apply to advanced telecommunications delivered by Internet protocol because the U.S. Federal Communications Commission does not consider advanced telecommunications to be a telecommunications service but rather an optionally provided information service under Title I of the Communications Act akin to America Online and CompuServe in the early years of mass Internet access.
2. Current federal and state subsidy programs don’t directly subsidize the construction of infrastructure in high cost areas. Instead, there exists a mishmash of programs designed to deliver various arbitrary throughput levels, known as “broadband speed.” Instead of determining where to subsidize infrastructure, federal and state governments attempt to map a moving target of advertised broadband speeds in order to determine where to direct subsidies.
3. Without a universal service mandate, investor owned advanced telecommunications providers have little incentive to seek subsidies since they can instead direct capital investments to lower cost and more immediately profitable infrastructure deployments.
4. Since high cost subsidies are available to various actors including non-incumbent investor owned providers, cooperatives and state and local governments, incumbent providers often oppose the award of subsidies within their nominal service territories and “footprints.” They regard these geographical areas as proprietary and other would be providers as interlopers. 
5. The amount of available subsidy funding is too little relative to need and there is inadequate monitoring of how it's spent.
   

Can The States Really Pass Their Own Net Neutrality Laws? Here’s Why I Think Yes.

Wetmachine Tales of the Sausage Factory Can The States Really Pass Their Own Net Neutrality Laws? Here’s Why I Think Yes.

This is Harold Feld's analysis of the question. Feld concludes that states can in fact regulate advanced telecom services. Feld reasons that while advanced telecommunications are clearly interstate, the scope of the U.S. Federal Communications Commission's jurisdiction isn't absolute and thus may not allow it to preempt the states should they enact statutes that codify the FCC's 2015 Open Internet rulemaking. The FCC is in the process of reversing the rulemaking that placed advanced telecommunications under Title II of the federal Communications Act, designating it as a common carrier utility.

The rulemaking's so-called "net neutrality" provision barring providers from blocking or throttling traffic over their networks has drawn concern that the providers might abuse their monopoly control over networks extract revenues.

That's a prospective concern that is less relevant and pressing in many states than the lack of advanced telecommunications infrastructure that leaves many homes, schools and small businesses unable to obtain service or offered substandard service options because their areas have been redlined by legacy incumbent telephone and cable companies. The FCC's Open Internet rulemaking requires service be provided upon reasonable customer request and specifically bars discriminatory redlining.

These mandates -- and less so net neutrality -- is why the providers and their trade associations will strongly oppose any proposed state legislation based on the federal rulemaking. State lawmakers are hearing far more vocal complaints from constituents that they've been refused service or forced to use pricy, substandard wireless services that don't meet minimum FCC requirements for advanced telecommunications than concerns providers will in the future block or throttle content. The volume and urgency of those complaints have been growing over the past decade or so. In addition, during that period and increasingly in recent years, state representatives have declared advanced telecommunications infrastructure critical to support commerce, government and education.

FCC's repeal of Open Internet regulation sets stage for mega versions of 1990s era AOL, CompuServe walled gardens

The U.S. Federal Communications Commission has restored the regulatory framework that treats Internet protocol-based communications as an information service. The move reverses the commission’s 2015 Open Internet rulemaking classifying IP as a common carrier telecommunications utility under Title II of the Communications Act. So instead of an open Internet, the United States is turning back the clock to the closed, proprietary walled gardens that existed prior to the advent of the World Wide Web in the mid-1990s.

It’s even a greater back to the future policy move than appears at first glance. It sets the stage for media producers to consolidate with the companies that own the “pipes” – cable and telephone companies that serve more than three quarters of American homes, businesses and schools. After all, if those pipes are to be regulated as information services rather than telecommunications, companies that create information take on an integral role in this vertically integrated business model.

Consequently, the future could bring more combinations like Comcast’s acquisition of NBC or Verizon’s takeover of AOL and its pending deal for Yahoo! Under the new regulatory policy, it’s not inconceivable a big cable company or a telco could similarly make a play for Netflix.

Even Amazon, clearly in the information service business with its original offer of books and now its own production video content, could be a potential merger partner for one of the big pipe players. An Amazon-Verizon walled garden, for example, would provide this information content along with socks, towels and any other imaginable consumer commodity with both companies taking a nick of the revenues. Prime members might be eligible for a discounted monthly rate for Verizon connectivity.

The result would be a supersized version of the original big online information services: CompuServe and AOL. Both provided electronic mail along with content prior to the debut of the Netscape World Wide Web browser in the mid-1990s that swung open the garden gates to a vast digital universe. CompuServe even charged its subscribers by the minute to read “premium” content -- not unlike telephone long distance service. Such a billing scheme might well make a return under the FCC’s latest regulatory framework.

Last year Google abandoned its vision of building proprietary fiber to the home infrastructure to make its content more widely available. It could follow the adage, “If you can’t beat ‘em, join ‘em," and concede its effort to outshine legacy incumbent telcos and cablecos and their outdated metallic telephone and cable TV networks by merging with one of them to create a colossal proprietary information service.

FCC Chair Pai papers over market failure as regulatory failure, claims satellite-based advanced telecom is competitive

Can a free market solve the digital divide? | WUWM: Pai: There are two different aspects to the answer to that. No. 1 is that I have focused on digital redlining as an issue

Wood: We should define what digital redlining is.

Pai: Digital redlining is the notion that within a certain geographic area, a company might have a business case for building out in areas A, B and C. But in area D they simply say, "We're not going to deploy there because we don't see the return on the investment," or for whatever reason. So from a regulatory perspective, we want to make sure that there are no rules standing in the way of them doing that. 

Had regulations been obstacles to deployment of advanced telecommunications infrastructure over the past 20 years or so, they would have been well identified by now. The issue of regulatory impediments is a red herring. As Pai points out, the issue is primarily economic insofar as redlining occurs in areas where the return on investment isn't sufficiently robust to justify the capital expenditure. Market failure is not regulatory failure. 

Pai: Absolutely. I mean, we can't punish companies to the extent that they don't build out and they don't have federal obligations. But what we do try to do is encourage them as strongly as we can. If they're violating FCC rules, certainly we will go after them for doing that. And in the meantime we're going to try to keep encouraging competition as best we can. Some of these smaller providers too, they're really providing an impetus in the marketplace. A couple of months ago, we approved for the first time a satellite company's application. They want to deploy 720 satellites in low-earth orbit. And they think that would be a really substantial competitor to terrestrial.

Instead of connecting all homes and businesses with modern fiber optic infrastructure, Pai is tacitly endorsing a lower service standard provided by satellites that can't provide the carrying capacity to accommodate rapidly growing demand for bandwidth that is doubling about every three years. As many Americans who reluctantly rely upon it are painfully aware, satellite connectivity is a poor substitute and hardly competition for terrestrial landline telecom infrastructure.

New year, same FCC finding: Advanced telecom infrastructure not being deployed in a reasonable and timely fashion

As it has since 2010, the U.S. Federal Communications Commission is expected to report this month that advanced telecommunications infrastructure is not being deployed in a reasonable and timely fashion. Consequently, 34 million Americans still lack access to landline premise service with 39 percent of the nation's rural population left without service, according to a draft progress report required under Section 706 of the Communications Act issued this week.

On the heels of a Pew Research Center study finding that premise service connections have leveled off as more Americans exclusively use mobile wireless devices for Internet access, the draft FCC report notes these consumers tend to perform a more limited range of tasks and are significantly more likely to incur additional usage fees or forgo use of the Internet.

Cable companies facing enormous shifts in market, regulatory environments

Cable companies like Comcast, Time Warner and others are facing enormous shifts in the market and regulatory environment that are likely to prove very challenging to navigate going forward. Earlier this year, the U.S. Federal Communications Commission subjected cable companies to Title II of the Communications Act in its Open Internet rulemaking deeming Internet service providers -- cable companies top the list measured by total customer premises served -- common carrier telecommunications utility providers under Title II. 

That's hugely incompatible with cable's business model based on offering subscriptions to bundles of TV channels to selected -- and not all -- customer premises in their service areas. At the same time as this regulatory sea change is occurring, the marketplace is also being disrupted as consumers increasingly shun these offerings.

Cable's subscription-based model is far better suited to the FCC's previously adopted classification of Internet service as a specialized information service -- and the cablecos' market positioning of themselves as entertainment and not telecommunications providers. Now it's gone except in the unlikely event the courts step in and restore it. Meanwhile, consumers are turning elsewhere for video entertainment.

Unpacking USTelecom FCC forbearance petition: no obligation to continue copper plant

GN 14-126: USTelecom Comments on 2015 Broadband Progress Report | USTelecom: First, the Commission should grant the petition that USTelecom filed in October 2014 that seeks forbearance from various outdated regulatory requirements applicable only to incumbent local exchange carriers (“ILECs”). As USTelecom explained in its Forbearance Petition, unlike most broadband providers – including cable, wireless, and competitive fiber providers – ILECs are not free to focus their expenditures on next-generation networks designed to deliver the higher-speed broadband services customers increasingly crave; instead they “must direct a substantial portion of their expenditures to maintaining legacy networks and fulfilling regulatory mandates whose costs far exceed any benefits.”

USTelecom is correct in noting there's little point in investing in obsolete copper networks. But its petition to the U.S. Federal Communications Commission fails to cite any regulations that specifically require telephone companies to deliver services solely over copper and not fiber.

Instead, the filing appears to pick a bone with existing rules governing ILEC last mile network operations and access -- rules that are predicated on ILECs having a monopoly over last mile infrastructure. The petition does not explain how these rules operate to discourage investment to upgrade copper networks to fiber.

Expect more legacy incumbent telephone company complaints as the FCC adopts final rules later this year reclassifying Internet service as a common carrier utility under Title II of the Communications Act.

U.S. Internet needs radical reorientation toward value-based, future edge demand

Legacy incumbent telephone and cable companies are fighting a fiber future for telecommunications infrastructure. People don’t need fast fiber connections, they maintain. Two legacy telcos, AT&T and Verizon, have urged the U.S. Federal Communications Commission to maintain its outdated definition of “broadband” at its current asymmetric 4/1 Mbps. (Not that it matters much anyway since the telcos have largely spurned federal subsidies to help them cover the cost of building out their limited footprints to serve premises lacking even that pokey standard of service.) Their stance reflects the incumbents’ decidedly retrospective philosophy, driven by their highly CAPex risk averse business models that are unlikely to change even though demand for Internet connectivity has grown substantially over the past decade. This retrograde view of Internet demand and infrastructure planning is largely responsible for the current dismal state of American Internet service where many homes and neighborhoods are unserved and those that are pay too much for sub-par service.

Industry expert Michael Elling argues rather than managing the economics of Internet infrastructure with an ex post, cost-based pricing model, instead it should be based on an ex ante, value-based pricing that takes into account the potentially enormous future demand for high bandwidth. The growth of bandwidth demand emulates Moore’s Law for microprocessors, roughly doubling every 2-3 years. It will continue to explode with applications such as 4k video streaming and two-way, HD videoconferencing.

Moreover, Elling astutely observes, contrary to the current market segmentation strategies where providers cherry pick discrete neighborhoods in densely populated metro areas, Elling sees the greatest demand growth for premise Internet service coming from less densely populated areas where residents obtain relatively higher value via its enabling remote work and e-commerce, distance learning and telehealth.

Elling also sees an ex ante perspective that anticipates future demand rather than focusing on past and present demand as mooting the current regulatory policy debate over net neutrality. The net neutrality issue has come about because providers at the core, transport and edge network layers don’t share a unified view of how prices for their services should be set. While those at the core and the transport layers might be inclined to work out a pricing scheme with the edge providers based on ex ante demand at the edge, it’s impossible to do so as long as the edge providers hang onto their ultra risk averse, cost-based ex post demand perspectives. If all the layers agreed to adopt an ex ante perspective, Elling believes, it would bring about a unified pricing scheme based on balanced settlements and price signals that would provide incentives for rapid investment and ubiquitous upgrades at all network layers.

Elling’s concept deserves serious consideration by Internet providers at all network layers as well as public policymakers and regulators. If the United States – the nation that invented the Internet – is to realize the Internet’s full potential and benefit for all Americans, it must first make an attitude adjustment. To an attitude that forsakes a retrospective orientation of bandwidth poverty and embraces a forward thinking outlook based on bandwidth abundance and prosperity.

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.