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.

Biden administration telecom infrastructure policy objective is universal access and affordability, not enhancing competition

The broader problem is that U.S. government policy does nothing to promote competition. According to the FCC’s flawed broadband maps, 28 million households have only one internet service provider offering at least the minimum broadband speed. Many of the supposed competitors are phantoms. And the number of households in areas with more than one ISP offering gigabit speed service is paltry. Only two million households have that choice, or maybe many fewer—the FCC doesn’t really know at any granular level.

Biden Proposes Government Actually Try to Create Broadband Competition

The fundamental problem with this assessment is telecom infrastructure is a natural monopoly. Enhancing competition is undoubtedly good public policy in a competitive market with many sellers and buyers. However, utility infrastructure isn't and cannot practically be a competitive market due to high cost barriers to entry and first mover advantage. That's why we don't see electric and water utilities fighting to win customers by running multiple lines to households.

Since market forces cannot function well in a natural monopoly market to benefit consumers, the Biden administration's policy to create a public option -- infrastructure owned by public sector and cooperative entities -- is the best policy to ensure infrastructure reaches every American home and not just the estimated one third currently passed by fiber. That's not a pro-competition policy, but rather one aimed at expanding infrastructure capacity to better ensure access and affordability.

It's critical the administration's policy be framed as such. Casting it as enhancing competition gives incumbent telephone and cable companies ammunition to claim government is unfairly competing with them on an unlevel playing field, arguments that will resound with conservative policymakers.

The administration's plan can promote competition by establishing a strong national fiber to the premise telecom infrastructure standard as a quality benchmark to assure reliability and durability against obsolescence. As well as creating incentives for rapid completion and deployment given the nation is at least a decade behind where it should be relative to this critical infrastructure.

No need for maps of existing advanced telecom infrastructure with "public option" fiber reaching nearly every American home.

According to Sherry Lichtenberg, deputy director at the National Regulatory Research Institute, having a big sum of money with which to attack the digital divide will be important, but the key issue may actually be figuring out where to spend it all. “We still don’t really have a good map that shows where things are available,” she said. “It’s important to know who’s got service, who doesn’t have service, where service could be provided if somebody asked for it, and where people are really getting it even if they are asking for it because of the way the rules are written.”

 It Will Take a Lot More Than Money to Fix the Digital Divide

There is no need for maps of existing advanced telecom infrastructure provided the Biden administration's proposed infrastructure plan offers affordable "public option" fiber connections to nearly every American home. It's already known that only about one third of U.S. homes are passed by fiber, most of it built by investor owned providers that limit construction to cherry picked neighborhoods. 

That's unlikely to change anytime soon since their business models demanding rapid returns on capital investment drive them to target dense MDU and greenfield development. They also charge a price premium for fiber throughput, marketing it as high end "gigabit" service that makes higher income areas a priority for fiber infrastructure deployment.

Enabling legislation of Biden administration’s infrastructure plan should ensure fiber built to nearly every American home

The advanced telecommunications infrastructure component of the Biden administration’s proposed American Jobs Plan (AJP) will be more clearly fleshed out when it is drafted into legislation. For now, it’s fine for the AJP to broadly outline a goal of building “future proof” infrastructure. But this is a subjective term, leaving it open to debate and the introduction of present bias as the language is negotiated. The draft legislation should instead definitively establish a fiber to the home infrastructure standard.

The AJP proposes to build infrastructure to “unserved and underserved areas so that we finally reach 100 percent high-speed broadband coverage.” The enabling legislation should avoid the use of “unserved and underserved areas” as well as “broadband” – terms that have sparked years of protracted debate over how they are defined as infrastructure deficits grew. Instead, it should ensure fiber is built to 100 percent of American homes over the near term to replace outdated copper telephone lines, with the exception of homes located in extremely remote areas of the nation.

Biden administration's telecom infrastructure plan effectively says, "Time's up. We have to turn a new page. History demands it."

Former FCC Chairman Ajit Pai said Thursday that the allocation of $100 billion to expand broadband networks in the U.S. under the Biden administration will only serve to hurt consumers and stifle innovation. 

AJIT PAI: The FCC alone already has in the pipeline almost $40 billion to help close that digital divide and ensure that Americans have access to the internet that serves their needs. That’s before any of this $100 billion plan that the President proposed even comes to the table and so that’s part of the concern that many have is that there are already plans to attack this problem.

Moreover, the plan itself seems to suggest that they want to overbuild private networks with public funds and have governments own or operate or even micromanage how those networks are going to be constructed and operated.

Biden's $100B internet overhaul will hurt consumers, stifle innovation: Former FCC chairman | Fox News: 

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Pai's right in that there will be some overlap of public option fiber infrastructure in neighborhoods where investor owned providers have deployed fiber to homes, comprising about a third of all U.S. homes. Implicit in the telecom component of the Biden administration's American Jobs Plan is these providers have gone as far as they can over the past three decades modernizing legacy copper telephone lines built for analog voice communications in the 20th century to fiber for the 21st century's digital services. 

They've harvested the low hanging fruit and will struggle to build out to the remaining two thirds of American homes in a timely manner given their lack of patient investment capital relative to the need and their debt burdened balance sheets. The experience of the current pandemic has demonstrated modernization to fiber is far behind where it should be at the start of the new century's third decade. The Biden administration's plan effectively says, "Time's up. We have to turn a new page. History demands it."

Housing development -- not geographical region -- key determinant of fiber deployment

One of the biggest challenges America has faced over the past two decades resolving its entrenched advanced telecommunications infrastructure deficiencies -- and specifically homes and small businesses where copper telephone lines have not been upgraded to fiber -- is how this nationwide challenge is defined.

The problem tends to be delineated in geographic terms as a modifier to throughput (versus infrastructure), e.g., “urban broadband” and “rural broadband.” This bifurcated geographic focus also drives misguided, ill-fated efforts to “broadband map” regions by census tract based on throughput providers report to the Federal Communications Commission.

It’s often inaccurately compared to electrical power infrastructure in early 20th century America. Electrical power distribution infrastructure fell rather neatly along urban and rural lines in a far less populated nation, with the former electrified while the latter went unwired until the federal government stepped in with loans for consumer utility cooperatives.

Disparate deployment of fiber is far more granular than these regional distinctions. The key determinant isn’t so much whether a region is urban, suburban or exurban. Rather, it’s the type of neighborhood development that exists or is planned over the next five years. New and dense development is favored for fiber builds. Older and less dense is not, even in relatively affluent neighborhoods.

Large ISPs have specialized units dedicated to bringing fiber to multi-family housing and planned unit development neighborhoods. They advertise in a trade journal aptly titled Broadband Communities. Investor-owned providers aren’t likely to build fiber outside of these preferred forms of residential development since they are believed to represent greater assurance of faster returns on investment their shareholders expect. In an article appearing in the January-February 2021 issue of the publication, Jeff Storey, CEO of Lumen, was quoted as telling industry analysts in late 2020 the telephone company will be "micro-targeting in selecting the areas we serve.” 

While that's a prudent strategy to satisfy investors, it clashes with public expectations of access to robust home connectivity regardless of their home address, which by definition isn't likely to be part of a "micro-targeted" fiber deployment.

That’s where the Biden administration’s infrastructure proposal, the American Jobs Plan, comes in to address public expectations that have been conveyed to elected representatives. It would appropriate $100 billion for fiber infrastructure to be deployed by local governments, nonprofits and consumer cooperatives. Notably, the administration’s proposal explicitly recognizes these entities are not expected to generate rapid returns for investors and offer a much needed alternative business structure to ensure fiber is deployed to homes not preferred by investor-owned providers.

Public option advanced telecommunications infrastructure is NOT market competition

This piece by Bloomberg Law repeats the common misconception that advanced telecommunications infrastructure owned by nonprofit consumer cooperatives and public sector entities equates to market competition with incumbent investor-owned providers. 

It’s wrong on two counts. First, advanced telecommunications infrastructure is by definition not a competitive market in which many sellers compete for the business of many buyers. It’s a natural monopoly because high-cost barriers to entry and first mover advantage keep out would be competitors.

Second, consumer cooperatives and public sector providers aren’t formed to gain market share from other sellers. They are created in response to sell side market failure because in a natural monopoly, there isn’t sufficient incentive for multiple sellers to enter the market and compete. That leaves buyers without options and at the mercy of monopoly providers. Government and cooperative owned networks are formed to provide a public option to remedy private market failure.

Why is properly framing government and consumer cooperative owned networks important? It’s very important from a public policy and regulatory perspective. Incumbent providers complain public option providers constitute “unfair competition” because they don’t have to reward investors and enjoy income tax exemptions. The playing field isn’t level, they complain. But it was never a level competitive playing field in the first place, rendering the incumbents’ position moot.

Three propitious elements of Biden administration’s infrastructure proposal

There are three propitious elements relating to advanced telecommunications infrastructure in the Biden administration’s American Jobs Plan asking Congress to invest trillions of dollars in America’s aging infrastructure. As the plan is drafted into legislative language, it is critical these elements be more clearly defined. The administration wants to turn a new page, with an infrastructure reboot for the 21st century as its chief legacy. But in order to do so, it must avoid past references that will make it harder to turn the page and quickly move to a new future.

This paragraph from the White House fact sheet on the proposed plan hits on the key infrastructure policy proposals:

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 first of the three positive elements is mentioned in the first sentence: “future proof” infrastructure. That is widely interpreted to mean replacing outdated copper telephone lines that reach nearly every American doorstep with fiber. Only fiber has the capacity to keep up with future growth in applications and services that require ever greater amounts of carrying capacity. Legislative language implementing the administration’s plan should set an explicit fiber to the premises (FTTP) infrastructure standard.

The second positive element is in the paragraph title: “100 percent coverage.” In other words, universal service like that achieved with voice telephone service by the latter half of the 20th century. That’s one of the most positive aspects of the plan given America’s checkered crazy quilt of some neighborhoods having landline advanced telecommunications infrastructure reaching all premises while adjacent ones even less than a mile away do not. It will be critical the legislative language incorporate a universal service standard by classifying fiber delivered IP protocol-based telecommunications as a common carrier utility under Title II of the Communications Act.

The administration’s proposal also refers to prioritizes building advanced telecommunications infrastructure in “unserved and underserved areas.” This is a potential minefield that could bog down a future bill implementing the plan given long running debates over the definition of unserved and underserved areas. Enabling legislation should avoid these or similar terms relative to prioritizing spending.

The third and related salubrious piece of the administration’s proposal recognizes that investor owned providers aren’t up to the goal of universal service. Expecting them to finance, own, build, operate and maintain advanced telecommunications infrastructure demands too much from their shareholders and violates their expectations for robust earnings and dividends. It’s long past time to abandon total reliance on them to build the infrastructure the nation needs.

Consistent with a universal FTTP infrastructure standard, legislation should create a “public option” and support the construction of “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.” Many of these entities have already begun to plan and deploy FTTP networks and are properly prioritized in the administration’s proposal.