Showing posts with label U.S. Federal Communications Commission. Show all posts
Showing posts with label U.S. Federal Communications Commission. Show all posts

Sunday, October 29, 2023

Concurrent FCC rulemakings would bar redlining for Internet service

One month after proposing a rulemaking to classify Internet protocol-based advanced telecommunications as a common carrier utility subject to universal service and non-discrimination mandates, the U.S. Federal Communications Commission will take up a similar rulemaking. The FCC’s proposed rulemaking Preventing Digital Discrimination is set for a vote at its November 15 meeting. It is primarily intended to remedy disparate impact (versus intentional) discrimination by providers that affects neighborhoods based on their demographics: income level, race, ethnicity, color, religion and national origin.

According to the FCC, the rulemaking implements section 60506 of the Infrastructure Investment and Jobs Act of 2021. It states federal policy that “insofar as technically and economically feasible— subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service.” Section 60506 defines equal access as “the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions.”

Since IP telecom is currently classified as lightly regulated optional information service under Title I of the Communications Act, providers are free to deploy delivery infrastructure wherever they wish and at rates of their choosing. They naturally prefer denser, higher income neighborhoods that will produce faster return on capital investment (ROI) and where households are less price sensitive and more inclined to subscribe to higher priced services, thereby maximizing average revenue per unit (ARPU).

The proposed rulemaking gives providers an out by allowing them to defend deployment and pricing decisions based on technical and economic feasibility. They could conceivably argue that they must be more conservative in building infrastructure in lower income neighborhoods and charge more for comparable services than those offered in higher income communities in order to feasibly meet their ROI and ARPU targets. The higher rates in turn would be out of reach of some lower income households, making them less likely to sign up for services and perpetuating an unvirtuous cycle. Similarly, they could argue middle mile infrastructure isn’t adequate to serve a given community, thus making delivery infrastructure deployment technically unfeasible. It's entirely logical to segment markets and pricing in a market-based scheme under Title I regulation. Disparate market impact will be a natural outcome. Additionally, providers choosing to build fiber in higher income areas but not in lower income areas could be seen as intentional discrimination based on income, i.e. disparate treatment.

The proposed rulemaking apparently contemplates a comparison of deployment activity to help regulators establish a pattern of market conduct demonstrating discrimination. That assessment would be based on a mandate on providers annually report on their deployment activities:

We propose that each annual report must address the following components to provide a
comprehensive picture of each major deployment, maintenance, and upgrade project completed or substantially completed for each state and territory within its service area or footprint: (1) the nature of each project completed or substantially completed in the calendar year immediately preceding the submission of the report (i.e., deployment, upgrade, maintenance, or a combination thereof); (2) the number of housing units affected by the project (i.e., the number of housing units whose broadband availability or quality is positively impacted by the project) by census tract (utilizing the system presently used in the BDC); and (3) a narrative description of the project and of the areas served by the project, to allow for greater precision and clarity regarding what the project is designed to accomplish and what communities are served by the project. 

While the language of the proposed rulemaking includes providers’ more proscriptive term to describe where they have built infrastructure and offer advanced telecommunications services , i.e. “footprint,” should the FCC reclassify Internet protocol telecommunications as a utility under Title II of the Communications Act as proposed in a separate notice of proposed rulemaking issued September 28, 2023, Safeguarding and Securing the Open Internet, 47 U.S.C. 214(e)(5) affords state public utility commissions and the FCC authority to develop their own geographic parameters for the purpose of Title II’s universal service mandate requiring providers to offer service to all serviceable addresses within the service area:

(5) “Service area” defined

The term “service area” means a geographic area established by a State commission (or the Commission under paragraph (6)) for the purpose of determining universal service obligations and support mechanisms. In the case of an area served by a rural telephone company,service area” means such company’s “study area” unless and until the Commission and the States, after taking into account recommendations of a Federal-State Joint Board instituted under section 410(c) of this title, establish a different definition of service area for such company.

Similar to the FCC’s Preventing Digital Discrimination rulemaking, reclassification of IP services under Title II would give regulators additional statutory authority to sanction discriminatory conduct under 47 U.S.C. 202titled Discrimination and Preferences. While FCC is forbearing rate regulation in the proposed Title II reclassification rulemaking, this provision makes it unlawful for common carriers engage in “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.” The statute allows for fines of $6,000 for each violation and $300 daily penalties for ongoing violations.

Wednesday, September 27, 2023

FCC’s proposed readoption of Title II rules won’t likely increase access and affordability

The Federal Communications Commission’s proposed rulemaking that would once again reclassify internet services as common carrier telecommunications utilities under Title II of the Communications Act from their current classification as information services under Title I of the statute in theory isn’t likely to have any meaningful impact on access and affordability.

President Joe Biden encouraged the FCC to adopt the rulemaking in a July 9, 2021 executive order, Promoting Competition in the American Economy. But the intent of the order to promote competition is at odds with the underlying rationale of Title II regulation that was used for decades to regulate voice telephone service. That regulatory scheme is properly predicated on the notion that telecommunications like other utilities functions as a natural terminating monopoly. The high cost of building utility infrastructure naturally deters potential competitors from entry – a point made by FCC Chairwoman Jessica Rosenworcel in a speech announcing the proposed rulemaking.

Utility infrastructure also affords incumbents first mover advantage, making it difficult for would be competitors to dislodge them. Investor owned utilities recognize the value there since connecting a customer premise essentially means owning the customer for the long term and potentially selling out to a consolidator for a big future payday. That incentive is now drawing in private equity capital into fiber to the premise (FTTP) deployment in areas where FTTP is spotty or nonexistent.

Since these microeconomic conditions cannot assure universal and affordable access, Title II does so by making telecommunications a common carrier utility, barring discrimination, and requiring reasonable requests for service be honored. It also allows for rate regulation. Authority for the latter was not included when the FCC last reclassified internet as a utility in a 2015 rulemaking and won’t in the forthcoming one, according to Rosenworcel. But the non-discrimination/universal service mandate – that Public Knowledge's Harold Feld has termed "the quintessential common-carrier obligation" – was.

Should it also reappear in the new proposed rulemaking expected to largely mirror the 2015 rulemaking, it’s questionable whether it will be meaningfully enforced. The FCC didn’t enforce that provision of the 2015 rulemaking, effectively letting service providers off the hook in response to a consumer complaint that a request for service wasn’t honored. All providers have to do is claim the customer location isn’t in its current footprint and the complaint is summarily dismissed. Similarly, providers might argue a request for service outside of its existing footprint is unreasonable since the necessary delivery infrastructure doesn’t exist, rendering the universal service mandate moot and allowing continued neighborhood redlining.

Saturday, August 19, 2023

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.

Thursday, February 09, 2023

Feds punt universal advanced telecommunications service to the states

The U.S. federal government has whiffed multiple times over the past three decades when it comes to mandating universal service for advanced telecommunications as it did for analog voice telephone service before it. A universal service mandate recognizes that telecommunications infrastructure like other utility infrastructure functions as a natural monopoly because of high cost barriers to competitor entry and first mover advantage accorded incumbents limit choice among multiple sellers.

It first did so in the Telecommunications Act of 1996. The statute includes language stating legislative intent that access to advanced telecommunications and information services should be provided in all regions of the Nation including rural and high cost areas -- but no means to ensure that it would.

The closest federal policy came to mandating universal access to advanced telecommunications was in 2015 when the Federal Communications Commission (FCC) placed Internet protocol telecommunications under Title II of the Communications Act of 1934, classifying it as a common carrier utility requiring reasonable requests for service be honored and barring neighborhood redlining. The FCC declined to enforce a regulation adopting the reclassification and reversed course in 2018, repealing it.

Instead, the FCC and state public utility commissions must merely “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans … in a manner consistent with the public interest, convenience, and necessity” per 47 U.S. Code § 1302(a). The statute also turns economic logic on its head by mandating these regulatory bodies promulgate “measures that promote competition in the (aforementioned natural monopoly) local telecommunications market.”

In 2021, the feds punted the universal service issue to the states with the Infrastructure Investment and Jobs Act that appropriates $42.5 billion in grants to the states to subsidize advanced telecommunications infrastructure and prioritizing funding of fiber to the premise (FTTP) delivery infrastructure. The funding is administered under the National Telecommunications and Information Administration’s (NTIA) Broadband Equity, Access and Deployment (BEAD) program.

The BEAD program requires states to develop “Five-Year Action Plans” including “a comprehensive, high-level plan for providing reliable, affordable, high-speed internet service throughout the (state) including the estimated timeline and cost for universal service.” It also frames universal access as a matter of digital inclusion and equity, noting that it's necessary for civic and cultural participation, employment, lifelong learning, and access to essential services. 

For the states, that will mean developing their own concrete universal service policies and funding strategies given that federal policy remains aspirational. A U.S. General Accountability Office report issued in May 2022 concluded there is no national strategy to guide the deployment of advanced telecommunications infrastructure. Instead, the report found, there are numerous, uncoordinated subsidy programs administered by multiple federal agencies.

Tuesday, June 28, 2022

Fearing universal service mandate, price regulation small and medium size incumbents claim robust market competition makes Title II regulation unnecessary

ACA Connects, a trade association of small and medium sized telephone and cable companies, has issued a white paper titled Broadband Is Competition Thriving Across America. Anticipating ongoing policy debate on regulation of advanced telecommunications, it presents data it claims show the Federal Communications Commission need not readopt regulations that regard Internet protocol telecommunications as a common carrier utility regulated under Title II of the Communications Act as the Biden administration urged in a July 9, 2021 executive order.

The paper argues robust competitive market forces make regulation unnecessary because nearly nine out of 10 American homes have access to advanced telecommunications meeting the FCC’s throughput-based definition of “broadband.” Homes having access to that and higher bandwidth is likely to increase based on current trends, it adds.

The paper relies on Form 477 reports on their service availability that providers must file with the FCC. The data includes providers using cable, DSL, fiber or fixed wireless technologies but not satellite or other technologies “because capacity limitations may limit the competitive impact of providers using these technologies.”

The paper states common-carrier-style regulation would be “particularly problematic” because of “rapid technological change.” That’s been a consistent message from incumbent investor-owned companies wishing to defer capital investment in upgrading legacy metallic outside plant to fiber to the premise (FTTP) for as long as possible to protect their bottom lines.

That rationale is understandable, but based on a false premise. No new advanced telecommunications delivery infrastructure technologies have emerged that are superior to FTTP, which has been around for decades. Perhaps by the 23rd century, it will be obsoleted by a Star Trek-like quantum subspace channel. But not over the foreseeable future.

While not stated directly, the apparent purpose of the paper stems from concerns that readoption of the Title II regulatory scheme will subject the organization’s member companies to universal service mandates and state rate regulation through public utility commissions.

Framing advanced telecommunications service as a competitive market undercuts the regulatory rationale for Title II regulation because it is predicated on telecommunications as a natural monopoly market like other utilities that don’t lend themselves to meaningful market competition being claimed by ACA Connects. That requires prices to be regulated because market forces won't act to control them and protect affordability. Also, universal service/non-discrimination mandates since homes in areas deemed unprofitable to connect would go without.

Notably, the July 2021 Biden administration executive order was issued with the purpose of promoting competition in the U.S. economy, implicitly recognizing competition is negligible in advanced telecommunications that is dominated by large investor-owned corporations. ACA Connects urges if the Title II rules are readopted, they should apply only to these entities and exempt smaller players like its members. Additionally, its white paper points to the stated plans by large providers to deploy fiber to the premises (FTTP) as evidence of strong market competition making utility regulation unnecessary.

Friday, March 25, 2022

IIJA language on “digital discrimination:” Happy talk with no real world impact.

Title V and specifically Section 60506 of the federal Infrastructure Investment and Jobs Act (IIJA) enacted in November 2021 contains provisions titled “digital discrimination.” They state federal policy that “insofar as technically and economically feasible— subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service.” Section 60506 defines ‘‘equal access’’ as “the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions.”

It directs the Federal Communications Commission to take steps to ensure that “all people of the United States benefit from equal access to broadband internet access service” and adopt rules by November 2023 to facilitate equal access to broadband internet access service, “taking into account the issues of technical and economic feasibility presented by that objective, including— preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin and identifying necessary steps for the FCC to take to eliminate discrimination.”

That definition sounds in language similar to provisions of Title II of the Communications Act that regards telecommunications as a common carrier utility and mandates reasonable requests for service to be honored while barring neighborhood discrimination. The FCC’s Open Internet rulemaking adopted in 2015 applied Title II to Internet protocol-enabled advanced telecommunications services. It was repealed and replaced in 2018. The Biden administration in a July 2021 executive order urged the FCC to readopt the 2015 Open Internet rulemaking.

The IIJA also requires the FCC to report to Congress on the FCC’s options for improving its effectiveness in achieving the universal service goals. The report, due by August 15, “will focus on examining options and making recommendations for Commission and Congressional actions toward achieving those goals,” according to a proceeding the FCC opened to gather public comment.

The administration was more likely to move the nation toward universal service as it was initially inclined to do by subsidizing public sector and consumer cooperative owned advanced telecommunications infrastructure, aptly noting these entities don’t operate with the economic burden of earning profits for their shareholders. The administration abandoned that stance in negotiations leading up to the IIJA’s enactment last year.

While few would object to Section 60506’s provisions, they are essentially happy talk with no real world impact. In the predominant market-based U.S. telecommunications landscape, commercial providers have incentive to discriminate since their shareholders naturally object to serving neighborhoods that are less profitable. That’s why only about a third of American homes that should have been connected to modern fiber optic delivered advanced telecommunications infrastructure at least a decade ago are not and still have copper telephone connections.

Section 60506’s language while nominally barring “digital discrimination” gives commercial deployers an out with exculpatory language, applying only where “economically feasible.” Fiber connections simply aren’t economically feasible within the business models of investor-owned providers, an economic reality seemingly unacknowledged by Section 60506. Digital discrimination is baked into the market segmentation strategies of those business models that favor newer and more densely developed neighborhoods in urban and suburban areas. Additionally, commercial providers have and will continue to argue it’s not technologically feasible to deploy fiber connections to homes and businesses within their service territories citing challenging geography.

Saturday, January 15, 2022

Infrastructure bill mandates FCC report to Congress on universal service

The Infrastructure Investment and Jobs Act (IIJA) requires the U.S. Federal Communications Commission to deliver a report to Congress on the FCC’s options for improving its effectiveness in achieving the universal service goals. The report, due by August 15, “will focus on examining options and making recommendations for Commission and Congressional actions toward achieving those goals,” according to a proceeding the FCC opened to gather public comment.

The IIJA mandated report also requires the FCC to determine whether expanding current universal goals is in the public interest. The goals are:

  • Preserve and advance universal availability of voice service;
  • Ensure universal availability of modern networks capable of providing voice and broadband service to homes, businesses, and community anchor institutions;
  • Ensure universal availability of modern networks capable of providing advanced mobile voice and broadband service;
  • Ensure that rates for broadband services and rates for voice services are reasonably comparable in all regions of the nation; and
  • Minimize the universal service contribution burden on consumers and businesses.

The FCC defines universal service as “the principle that all Americans should have access to communications services,” noting the Telecommunications Act of 1996 expanded that to include Internet protocol-based advanced telecommunications services “for all consumers at just, reasonable and affordable rates.” The 1996 statute states “access to advanced telecommunications and information services should be provided in all regions of the Nation.” Advanced telecommunications capability is defined as “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.”

The 1996 Act also employs a dynamic definition of universal service as “an evolving level of telecommunications services that the Commission shall establish periodically … taking into account advances in telecommunications and information technologies and services.”

Monday, November 08, 2021

The Infrastructure Bill is About More than Money | Benton Institute for Broadband & Society

The Infrastructure Bill is About More than Money | Benton Institute for Broadband & Society: it is now the policy of the United States that: Subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service; "Equal access" means the equal opportunity to subscribe to a service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions; and The FCC should take steps to ensure that all people of the United States benefit from equal access to broadband internet access service.

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The Benton Institute is right. While the billions appropriated to the states in the advanced telecommunications infrastructure component of Infrastructure Investment and Jobs Act headed to President Biden's desk gets most media attention, the measure contains important expressions of telecommunications policy. How they ultimately end up being implemented will be crucial headed into 2022 and beyond.

The Benton Institute's call that the U.S. Federal Communications Commission act to ensure the "equal access" provision sounds in the Title II universal service and anti-redlining requirements enacted in the FCC's 2015 Open Internet rulemaking reclassifying Internet Protocol delivered services as a common carrier telecommunications utility.

In an executive order issued in July, President Biden called on the FCC to reinstate that rulemaking that was repealed in 2018 during the Trump administration that deemed IP services as optional information services under Title I of the Communications Act of 1934. The order also calls on the FCC to initiate a rulemaking to require service providers to regularly report price and subscription rates to the public in a useful manner to improve price transparency and market functioning. The infrastructure bill mandates the FCC convene a proceeding to determine how to achieve universal service and to recommend to Congress expand it “if the Commission believes such an expansion is in the public interest.”

Another key policy issue that will be addressed in the infrastructure bill's implementation is the role of public sector and nonprofit entities like consumer utility cooperatives. When the Biden administration issued its foundation for the infrastructure bill -- the American Jobs Plan -- it clearly favored them as more nimble and complete builders and operators of much needed infrastructure as shown in this paragraph from the plan:

Build high-speed broadband infrastructure to reach 100 percent coverage. The President’s plan prioritizes building “future proof” broadband infrastructure in unserved and underserved areas so that we finally reach 100 percent high-speed broadband coverage. It also prioritizes support for broadband networks owned, operated by, or affiliated with local governments, non-profits, and co-operatives—providers with less pressure to turn profits and with a commitment to serving entire communities.

The pressure private investor owned vertically integrated telephone and cable companies face to generate profits works against full deployment in their putative service territories. That has brought about longstanding, widespread gaps in landline connectivity to homes and small businesses, creating a pattern of Swiss cheese holes in delivery infrastructure in urban, suburban, exurban and rural areas with the latter two categories most severely affected.

Saturday, November 06, 2021

Broadband mapping provision of House-passed infrastructure measure poses risk to timely disbursement of state funding

The Largest U.S. Investment in Broadband Deployment Ever | Benton Institute for Broadband & Society: Broadband Equity, Access, and Deployment Program (And the Need for Better Broadband Maps) The U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) has six months to create the Broadband Equity, Access, and Deployment Program to support projects to construct and deploy broadband networks. Congress has allocated $42.45 billion for the program which will prioritize expansion of broadband in rural areas and states that rank below other states on broadband access and deployment. A key element in the implementation of the program is broadband mapping taking place at the Federal Communications Commission. The FCC is in the process of updating its current broadband maps with more detailed and precise information on the availability of fixed and mobile broadband services.

The Broadband Deployment Accuracy and Technological Availability (DATA) Act, signed into law in March 2020, requires the FCC to change the way broadband data is collected, verified, and reported. Specifically, the FCC must collect and disseminate granular broadband service availability data (broadband maps) from wired, fixed-wireless, satellite, and mobile broadband providers. To do this, the FCC is required to establish the Broadband Serviceable Location Fabric (a dataset of geocoded information for all broadband service locations, atop which broadband maps are overlaid) as the vehicle for reporting broadband service availability data. Additionally, the FCC must put forth specified requirements for service availability data collected from broadband providers, and it must create a challenge process to enable the submission of independent data challenging the accuracy of FCC broadband maps.

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This provision of the Infrastructure Investment and Jobs Act that passed the U.S. House of Representatives late this week and expected to be quickly signed into law is the largest risk factor to the measure's timely implementation. 

Given the nation's fraught history of broadband mapping, that key provision of the funding eligibility formula and the development of procedures to challenge their accuracy is likely to set off time consuming controversy between investor owned providers, consumer interest and state and federal regulators, bogging down federal disbursements for months and possibly years. The billions of dollars at stake provide impetus for these groups to file challenges and raise questions over the accuracy of the maps, neighborhood by neighborhood.

Eligibility for up to 75 percent grant funding for advanced telecom infrastructure builds is prioritized to “unserved areas,” defined as those where at least 80 percent of premises are unserved – those not having any providers offering service with throughput of at least 25 Mbps down and 3 Mbps up. That's open to gaming by fixed wireless providers who could conceivably claim offers of service meeting or exceeding the throughput minimum but at exorbitant rates.

“Underserved” areas – defined those lacking access to “reliable broadband service” with no providers offering service with throughput of at least 100 Mbps down and 20 Mbps up are secondarily eligible. For both categories, funding eligibility is limited to areas where least 80 percent of premises are unserved or underserved. Neighborhoods failing to meet the 80 percent threshold would be out of luck and continue to potentially suffer redlining by incumbent providers serving only select parts of them.

Wednesday, September 15, 2021

Biden administration’s delayed FCC appointments suggests telecom policy strategy overhaul in the works

Telecom policy wonks fretted and info tech press have scratched their heads for months over the Biden administration’s delay in fully staffing the Federal Communications Commission and naming a permanent chair. Affording the administration the benefit of the doubt, it’s likely the new administration has been taking its time developing a wholistic two-pronged telecommunications strategy.

Here’s how it might be playing out. The goal of the first part is to address the nation’s accumulated advanced telecommunications infrastructure deficits built up over the past two decades and bring robust connectivity to as many American doorsteps as quickly as possible. That element of the strategy is expressed in the administration’s “build back better” American Jobs Plan infrastructure initiative, now legislation pending in the House. It appropriates $42 billion to the states for advanced telecommunications infrastructure.

The second strategy prong would have a longer timeline with the goal of establishing a durable regulatory and subsidy regime to ensure Americans can get connectivity no matter where they live, with reliable service at affordable rates. It’s linked to the first prong: The infrastructure measure would require the FCC to conduct an inquiry on universal service and make policy recommendations to Congress.

Given the broad and long-term implications of that component, the administration would naturally want to move at a deliberate pace in nominating FCC members as well as naming a permanent chair. The administration would want to ensure its nominees are fully on board with its broader strategy and able to implement it.

It’s also possible the administration is mulling over the respective roles of the FCC and National Telecommunications and Information Administration relative to advanced telecommunications as part of a broader restructuring that could end up as a legislative proposal later in the administration. The NTIA will develop rules and oversee the telecom infrastructure funding allocated in the pending infrastructure bill.

Monday, August 23, 2021

Biden administration telecommunications policy could move U.S. toward universal fiber connectivity

The Biden administration’s telecommunications policy points toward the goal of bringing fiber connections to nearly every American home, recognizing policy put in place 25 years ago with the 1996 Telecommunications Act will not achieve that objective with two thirds of homes still served by obsolete copper telephone lines in 2021.

That goal is not explicitly stated in the Infrastructure Investment and Jobs Act passed by the Senate this month, calling into question the administration’s “build back better” pledge. Many observers including this one viewed that as a capitulation to incumbent telephone -- and particularly cable companies -- and their legacy metallic delivery infrastructures. However, as noted here, the legislation contains language favoring fiber that would be subsidized with $42 billion appropriated to the states should the measure become law. Additionally, the administration is on record as favoring “future proof” infrastructure – essentially fiber – along with universal service.

The infrastructure bill would direct the Federal Communications Commission to convene a proceeding to determine how to achieve universal service and to recommend Congress expand universal service “if the Commission believes such an expansion is in the public interest.”

However, the administration in a July 9, 2021 executive order encouraged the FCC to reinstate its 2015 Open Internet rulemaking that classified Internet protocol delivered services as telecommunications and subject to Title II of the Communications Act of 1934. As such, the services would be regulated as a common carrier utility and a universal service mandate placed on providers that would be required to honor reasonable requests for connections.

While the order is a strong suggestion and not administrative law at this point, the administration can almost certainly implement it when it nominates a candidate to fill the current vacancy on the FCC panel. The administration would most likely select a nominee inclined to implement the order and reinstate the Title II-based rulemaking.

That would set the stage for a policy debate on universal service in the Senate confirmation process. The nominee would conceivably be asked at their confirmation hearing where they stood on universal service considering the Senate’s version of the infrastructure bill would require the FCC to conduct an inquiry on universal service and policy recommendations to Congress.

If the administration is successful in seating a nominee inclined to reinstate the 2015 Open Internet rulemaking, the FCC could preempt Congress on the issue. That is unless Congress chooses to act expeditiously considering the FCC has been unable to conclusively determine whether IP-based services are telecommunications or information services as per their current classification under Title I of the Communications Act.

The significant funding that would be allocated to states by the infrastructure bill as well as that currently provided by the American Rescue Act would provide a sizable initial infusion to help cover capital costs in high-cost areas in order to help attain universal service. However, with a universal service requirement under a Title II regulatory scheme, there would need to be a viable ongoing high-cost area subsidy for both capital and operating costs that does not currently exist as it does for legacy voice telephone service. In the absence of a permanent high-cost subsidy mechanism, federal and state policymakers have defaulted to piecemeal one time grants.

Monday, August 02, 2021

Infrastructure measure pending in Senate would condemn America to another generation of waiting for replacement of legacy copper telephone lines with fiber, universal service.

The U.S. Senate made public enabling legislation for the Biden administration’s American Jobs Plan infrastructure initiative this week, titled the ‘‘Infrastructure Investment and Jobs Act.” The bill is disappointing insofar as it fails to define a physical fiber standard for advanced telecommunications infrastructure. Instead, it prioritizes funding telecommunications infrastructure that “can easily scale speeds over time to meet the evolving connectivity needs of households and businesses.” That’s generally viewed as fiber – the “future proof” goal expressed in the American Jobs Plan. But it’s not explicitly referenced in the proposed legislation.

The measure continues the incrementalist doctrinaire view put in place by the 1996 Telecommunications Act that boosting throughput is the paramount policy goal. Furthered by the faulty economic reasoning that market competition despite telecommunications infrastructure being a natural monopoly like other utilities will help achieve that objective. The asymmetric throughput-based standard as stated in the measure retains the classic 1990s-era delineations of premises as being served, underserved and unserved relative to throughput offered by providers serving them. 

That reflects a collective cognitive bias known as anchoring. Dialup -- state of the art connectivity in the 1990s -- is the anchor. All progress is measured by improvements from the anchor as higher "broadband speeds." That cognitive bias has set the tone for the entire telecom policy debate rather than infrastructure. It's thus no surprise to see a nominal infrastructure bill frame the issue as one of supporting higher throughput in areas where it's lagging.

Should the bill become law as written, it will condemn the United States to another generation of waiting to modernize its legacy copper telephone lines built for analog voice telephone service in the 20th century to fiber to support internet protocol-based digital services in the 21st century.

These are some of the other major problems with the proposed bill language:

The proposed legislation does not affirmatively prioritize publicly and nonprofit owned infrastructure as originally envisioned in the American Jobs Plan, allowing investor-owned entities that operate with an inherent conflict of interest between investors and consumers to apply for infrastructure projects. The projects would be funded with $42 billion allocated to state governments with a 25 percent match.

In one of the biggest missed opportunities for a massive infrastructure measure, the bill does not achieve advanced telecommunications universal service as was attained with landline voice telephone service. The bill would require the U.S. Federal Communications Commission to convene a proceeding to determine how to achieve universal service and to recommend to Congress expand the universal service “if the Commission believes such an expansion is in the public interest.”

Funding eligibility is prioritized to “unserved areas,” defined as those where at least 80 percent of premises are unserved – those not having any providers offering service with throughput of at least 25 Mbps down and 3 Mbps up. The offer of service is open to gaming by fixed wireless providers who could conceivably claim offers of service meeting or exceeding the throughput minimum but at exorbitant rates.

“Underserved” areas – defined those lacking access to “reliable broadband service” with no providers offering service with throughput of at least 100 Mbps down and 20 Mbps up are secondarily eligible. For both categories, funding eligibility is limited to areas where least 80 percent of premises are unserved or underserved. Neighborhoods failing to meet the 80 percent threshold would be out of luck and continue to potentially suffer redlining by incumbent providers.

The determination of whether an area is “underserved” is based on maps of throughput offered by providers maintained by the FCC. The maps have proven notoriously controversial and inscrutable and subject to provider abuse of overstating service offerings. The FCC is in the process of revising the methodology to improve them, but that process will likely generate further disagreement and delay that serves only the interests of legacy incumbent providers.

Saturday, May 08, 2021

Public option open access fiber holds promise of ending unproductive "broadband mapping"

First and foremost, the FCC, Congress, local government, community groups, and existing service providers need to work together to create accurate broadband maps. Without an understanding of where broadband infrastructure actually exists, we won’t know which communities lack access to the Internet and which are served.

Risks and Rewards of the U.S. Broadband Funding Boom | Internet Society

While on the surface, this appears to be a rational starting point, in reality it's retrogressive and not a step forward. "Broadband mapping" originates from the Telecommunications Act of 1996 that gave the U.S. Federal Commission authority to define advanced telecommunications based on throughput. The FCC determines what constitutes "broadband" level throughput. Providers are required to report annually to the FCC where they are selling it. Efforts to map this data have resulted in decades of unproductive gaming and wasteful controversy among regulators, policymakers, service providers and public interest advocates over the accuracy and utility of the reports.

The Biden administration's proposed American Jobs Plan properly regards advanced telecommunications as critical infrastructure rather than "broadband" as a service. It defines a level of throughput that makes it a de facto fiber to the home infrastructure standard. It would also create a public option by prioritizing networks owned by public sector and nonprofit entities such as consumer cooperatives.

Instead of mapping "broadband speed," what policymakers should do first is identify existing public sector and nonprofit entities that currently operate fiber networks. The American Jobs Plan and other potential sources of federal funding should be directed to them to expand and strengthen their networks. Where these networks are absent, funding should be allocated to enable regional public sector and nonprofit operators to design and build open access fiber as a much needed public option to remedy widespread gaps in access and affordability.

Sunday, April 25, 2021

Public option FTTH infrastructure offers potential advantage of ending FCC back and forth over regulation of IP delivered services

With public option fiber to the home (FTTH) advanced telecom infrastructure proposed in the Biden administration’s infrastructure package, a key advantage would be a potential end of the shifting back and forth policy positions of the Federal Communications Commission regarding how to regulate Internet protocol delivered services.

Since they would be delivered on the service layer of FTTH infrastructure owned by public entities and consumer cooperatives, they would conform to the current FCC regime of treating them as lightly regulated information services falling under Title I of the Communications Act. It would also be consistent with the administration’s policy to promote competition in advanced telecommunications services. Information service providers would compete on a relatively level playing field if affordable fiber connections built to a national infrastructure quality standard reached nearly every American doorstep.

Tuesday, April 21, 2020

FCC head Ajit Pai grossly mischaracterizes telecom infrastructure as competitive market

Pai Explains Commission's Coronavirus Philosophy - Radio World: But I also think that the market creates powerful incentives for companies to do the right thing. If your company doesn’t step up for you, or even worse, engages in bad behavior, consumers will be much more likely to turn to the competition in the weeks, months, and years ahead.

Pai's right. But only when it comes to competitive markets. Telecommunications infrastructure isn't one due to high cost barriers that keep out potential competitors and first mover (incumbent) advantage that make it a natural monopoly or duopoly. It's simply not economic to have multiple lines running to a home to deliver Internet protocol-based telecommunications services.



I’d also argue that the general regulatory approach that we have in the United States have applied to the broadband marketplace gave us much stronger infrastructure in the first place, as it gave companies the incentives to invest in resilient, robust networks that could withstand unprecedented consumer demands. (Emphasis added)

This requires some explaining on Pai's part. With competitive market forces absent and no regulatory requirement to meet market demand by requiring they provide fiber connections to homes asking for them, legacy telephone companies lack incentive to invest in replacing their decades old copper lines with fiber. Only fiber to the premise #FTTP can assuredly support "resilient, robust networks that could withstand unprecedented consumer demands."

Wednesday, September 25, 2019

FCC RDOF subsidy rules: USTelecom has no legitimate complaint

USTelecom on RDOF Impact: When the ILEC is No Longer the Carrier of Last Resort - Telecompetitor: The upshot is that while the CAF II auction diverted a relatively small portion of subsidies that would normally have gone to the price cap carriers to other entities, the RDOF has the potential to trigger a more dramatic shift away from the price cap carriers. As the report authors, note, “[c]ompletely shutting off access to federal universal service support to an incumbent in favor of a competitor is a new frontier in the evolution of the support mechanism.” As subsidies for price cap territories go to companies other than the incumbents, “the ILEC should be relieved of all federal and state obligations to provide service in such areas,” the authors argue. (Emphasis added)
USTelecom has nothing to complain about here. Incumbent Local Exchange Carriers have no obligation to provide advanced telecom service (ATS) to all premises in their service territories -- only voice telephone service. That's thanks to the U.S. Federal Communications Commission's 2018 repeal of the previous Obama era FCC's Open Internet rulemaking in 2015 classifying ATS as a telecommunications utility under Title II of the federal Communications Act and thus subject to universal service and non-discrimination mandates. The current FCC instead opted to classify ATS as an information service under Title I of the statute, turning the calendar back to 1990 and the days of CompuServe and AOL.

Thursday, February 07, 2019

FCC chief touts hybrid fiber and next gen wireless delivery infrastructure as viable alternative to FTTP

U.S. Federal Communications Commission Chairman Ajit Pai said a hybrid infrastructure of next generation wireless backhauled by fiber offers an alternative delivery method for fixed premise advanced telecom service where the return on investment to connect premises directly to fiber isn't adequate.

Industry observers are skeptical of this scenario, noting next generation wireless service requires the construction of substantial new fiber infrastructure to support it, significantly weakening the investment case.

Pai disagrees, arguing that sufficient fiber infrastructure is already in place to move ahead with deployment. "Part of the reason is, in terms of the possibilities of fixed wireless, given the fiber penetration that some of your members have," he told the NTCA-The Rural Broadband Association in New Orleans earlier this week. Pai urged the group to "think broadly" about "how to extend this great fiber penetration you’ve got." 

Wednesday, October 24, 2018

Purpose of "broadband maps" is to protect legacy incumbent telephone and cable companies, delay progress

FCC leaders say we need a 'national mission' to fix rural broadband - CNET: But before you can really get things going, you have to address one key issue, Rosenworcel said.
"Our broadband maps are terrible," she said. "If we're going to solve this nation's broadband problems, then the first thing we have to do is fix those maps. We need to know where broadband is and is not in every corner of this country." You can't solve a problem you can't measure, she added.
And one can't reach a destination or goal without a plan. Rather than serve that purpose, American policymakers have instead used "broadband maps" to protect legacy incumbent telephone and cable companies and delay progress. They're continuing the fool's errand the incumbents assigned them. Policymakers instead need to set the goal of bringing fiber to every home, school and business and work from the rebuttable presumption that it doesn't exist in most of the nation.

Wednesday, October 03, 2018

“Net neutrality” fight over nothing less than the future business and regulatory model of advanced telecommunications

The state vs. federal showdown over “net neutrality” is about far more than regulating ISPs’ ability to favor or “speed up” some advanced telecommunications services or slow or even block others. It’s a fight over nothing less than the future business and regulatory models of advanced telecommunications (ATC). Should ATC be bundled with services owned or procured by the ISP or be a common carrier “dumb pipe” in which the role of ISPs is primarily to provide connectivity?

Because Internet protocol enabled digital ATC can deliver far more services than the analog voice telephone service that preceded it, ISPs naturally see a gold mine in monetizing these services. An example is their push for “video everywhere” displayed on home TVs as well as personal devices and acquisitions of video content producers such as AT&T’s recent purchase of Time Warner.

This is the ATC as an information service regulatory approach favored by ISPs and expressed in current public policy wherein the U.S. Federal Communications Commission has reclassified ATC as an information service rather than a common carrier telecommunications utility as the FCC classified it in its 2015 Open Internet rulemaking.

The problem with treating ATC as a proprietary information service instead of a common carrier telecom utility is it will always have limited availability because the infrastructure to deliver it will only be built to serve “high potential” neighborhoods deemed sufficiently profitable by ISPs. The FCC’s now repealed Open Internet rules by contrast included a mandate on ISPs to make ATC available to any customer in their service territories making a reasonable request for service. As information service, that provision contained in Title II of the Communications Act doesn’t apply since information services are regulated under Title I of the statute.

Big ISPs naturally prefer Title I information service regulation because it supports their vertically integrated business models favoring proprietary content delivered to end users over proprietary infrastructure. That supports their top lines. And not having to serve “low potential” neighborhoods reduces capital and maintenance costs, benefitting their bottom lines. It’s a lopsided winner take all scheme in which the ISPs win big and consumers lose.

It's not the data, stupid. It's the FCC's crazy back and forth regulatory posture on advanced telecommunications

Rural Americans Suffer the Costs of Faulty FCC Broadband Data - Pacific Standard: The FCC conducts a review of the state of broadband deployment and access every year, as required by the 1996 Telecommunications Act. As part of this analysis, the FCC must determine whether high-speed broadband is being deployed to "all Americans in a reasonable and timely fashion."

Here, accurate data is crucial. If the FCC finds that high-speed broadband is not being deployed to all Americans in the way it spells out, it must "take immediate action to accelerate deployment." In other words, if broadband isn't being deployed in a timely way to all Americans, the FCC is obligated to enact policies to remedy that. But without reliable data, the FCC might restrict its own ability to do what it's supposed to do. (Emphasis added)

The premise here is flawed. The FCC has already hampered its own ability to ensure universal advanced telecommunications service by failing to consistently regulate it as a common carrier telecommunications utility under Title II of the Communications Act. That regulatory regime accelerates deployment by mandating universal service and prohibiting neighborhood redlining by requiring ISPs to honor reasonable requests for service.

Instead, the agency has vacillated over the past two decades between regulating it under that scheme and as an information service under Title I of the statute. Most recently, the FCC has shifted back to Title I information service regulation after repealing its Title II-based 2015 Open Internet regulations in late 2017. The lack of a consistent regulatory policy and the resulting infrastructure deficiencies is spawning a movement to deprivatize advanced telecom infrastructure as localities study ways to finance and build their own.