My Broadband Regulatory Wishlist

Chairwoman Jessica Rosenworcel wasted no time in declaring that the FCC is going to tackle reinstituting Title II regulation for broadband. She made the announcement only a few days after the Senate approved Anna Gomez to fill the open fifth Commissioner slot. Since her announcement, I’ve been thinking about the things I’d like to see the FCC tackle with five Commissioners.

Net Neutrality. This is not at the top of my list, but I put this first to get it out of the way. Most big ISPs have not been engaging in big violations of the net neutrality principles. This is partially because ISPs didn’t want to see net neutrality to be the excuse for reintroducing broadband regulation. But it’s also because California has been successful in implementing net neutrality. There is no practical way for a nationwide ISP to violate net neutrality rules everywhere except California, so they hesitate to do so. The bottom line is that discriminating against some classes of customers or types of traffic is bad business and most big ISPs just don’t go there to the extent that was always feared by net neutrality proponents. But it seems likely that the net neutrality rules will be reinstated.

Carrier Disputes. Industry insiders miss the ability to take broadband disputes between carriers to the FCC for resolution. This is a quiet part of the industry that has always been effective yet under the radar. Just the threat of taking another carrier to the FCC was often an effective negotiating tactic when ISPs violated contracts or industry practices. But killing Title II regulation for broadband meant that the FCC no longer claimed jurisdiction over many broadband disputes – leaving carriers with a much tougher path of taking disputes to court.

Consumer Protection. Probably the biggest change when Title II regulation was killed was that the FCC stopped taking an active role in protecting consumers against bad behavior by ISPs. When people got so fed up that they finally complained to the FCC about bad ISP behavior, the ISPs generally tried to resolve issues to stay on the good side of the FCC. In the cases where a lot of consumers were harmed by an ISP practice, the FCC ordered ISPs to fix bad behavior and often required refunds of overcharges. That all went away with the end of Title II regulation. The FCC still has a complaint process, but the agency just forwards consumer complaints to ISPs which have been free to ignore them. The FCC further passed the responsibility for consumer protection to the FTC to police ISP’s bad behavior – which is totally ineffective since the FTC doesn’t have the authority to set industry-wide rules and only prosecutes the worst of the worst behavior, one ISP at a time.

Merger Conditions. The FCC often used its Title II authority to make ISPs accept conditions for broadband mergers. Charter customers can all thank the FCC for blocking the company from instituting data caps as a result of an agreement made when the company wanted to merge with Time Warner Cable. The FCC has not always stuck to its guns in enforcing merger conditions, but this is one that has saved millions for Charter customers. This prohibition will end soon, so be on the lookout for Charter data caps.

Collecting Real Pricing Data. The FCC periodically does urban rates studies, but in doing so, it doesn’t collect real prices – just the prices that ISPs claim. A study in Los Angeles last year showed that Charter had different prices by neighborhood throughout the City, with the best deal being offered to areas with higher household incomes. Title II regulation theoretically would allow the FCC to somehow regulate prices – but it’s hard to imagine it would ever do so. It doesn’t regulate prices for telephone, cable, or cellular service, and it’s hard to imagine an FCC wading into this issue. But having Title II authority could give the FCC leverage to encourage lower rates when ISPs ask for other concessions from the agency.

Privacy. Like with net neutrality, California is far ahead of the FCC in terms of trying to protect customer privacy. It would be great to see the FCC change privacy policies to protect consumer data in today’s complicated online world.

Giving the States Cover for Regulating. When the FCC gave up on regulating broadband, most states did so as well. It’s difficult and expensive for states to take on the big ISPs without the cover of the FCC regulating and taking most of the industry flak. ISPs use the tactic of suing states that try to regulate them in any way.

A Broadband Map that Works. This issue probably means I am completely fantasizing. I don’t think there will ever be a broadband map that can work. When the BEAD grants are behind us, I suspect we’ll move back to not carrying how lousy the maps are. But if we are somehow forced to care about maps, it would be good if the process worked.

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