Every once in a while I see an idea in this industry that makes me shake my head. Recently ALEC (the American Legislative Exchange Council) wrote a letter to the FCC asking them to override all state and local laws pertaining to making broadband connections. They specifically cite the issues associated with the placement of small cell sites. They urge the FCC to declare broadband to be an ‘interstate’ service and use that as the basis for setting nationwide rules.
It’s easy to understand where ALEC is coming from. It’s an organization that is funded by the largest corporations in the county and the biggest telcos and cable companies help to fund ALEC. Over the years the organization has drafted proposed legislation that benefits the large ISPs, and in recent years ALEC was behind many of the state legislative initiatives to block municipalities from building broadband networks. ALEC has also commissioned various white papers that espouse the positions of the big ISPs. The white papers are generally intended to be used to lobby with state and federal legislators.
I don’t think anybody in the industry is unsympathetic to some of the worst stories being told about locating small cell sites. There certainly are cases where local rules are definitely a barrier to deployment. But this is an area where states and cities are allowed to create local rules.
And it’s not hard to understand why ALEC would petition the FCC. This has to be the most big-carrier friendly FCC in the last century. It’s clear that this FCC would grant the ISPs many of the things on their wish list. If the FCC adopted what ALEC is asking for then the big ISPs could solve their problems in this area in one fell swoop – and they could stop the expensive lobbying effort at the state and local level.
But there are a few flaws in ALEC’s arguments. First, many of the FCC’s rules are the result of legislation passed by Congress. For instance, the FCC has no authority to override anything that was required by the Telecommunications Act of 1996 or many other congressional laws, and that law provided states and localities the right to make local rules concerning rights-of-ways and connections on poles or in conduits. I find it doubtful that the FCC can arbitrarily preempt those specific parts of that Act.
But the most important reason this makes no sense is that it comes just a few weeks before the FCC is likely to reverse Title II regulation of broadband. Once the FCC does that they will have effectively taken themselves out of the broadband regulation business. They will be handing off things like broadband privacy to the Federal Trade Commission, but many areas of broadband will become purely unregulated. The FCC can’t declare broadband to be an interstate service if they don’t regulate broadband.
It’s kind of ironic that the only way the FCC could try to do what ALEC is asking would be by maintaining Title II regulation – the only tool they have for regulating broadband. But once they renounce Title II authority the FCC is greatly weakened in making any regulations concerning broadband. I’ve always asserted that the big ISPs need to be regulated in some manner and this is a perfect example why. A friendly FCC with the authority to regulate broadband could give the big ISPs the things they most want – but the trade-off of being regulated is that it also means accepting things the ISPs don’t want . This request by ALEC is the perfect example of the ISPs wanting things both ways – they want to be regulated where they need it and unregulated where they don’t – but there is no logical ways to have it both ways.
The ISPs biggest fear with having Title II regulation is that some future FCC could use the authority to impose rules they don’t like. They particularly fear a future FCC that tries to regulate broadband prices. The ISPs don’t really have a lot of concerns about this FCC, but these companies have seen the FCC change over time with changes in administrations and they know that the pendulum always eventually swings the other way.
So I sit here and just scratch my head over this. ALEC is asking this FCC, which wants to reduce regulations, to create new regulations. And they want the FCC to use their authority to regulate this issue while at the same time they don’t want the FCC to use that same authority to regulate any other broadband issues. I don’t know if I’ve ever seen a better example of somebody that ‘wants their cake and eats it too’!