Tag Archives: ACA Connects

Can the FCC Regulate Local Permitting?

ACA Connects, an industry group that represents midsize cable companies and fiber overbuilders, recently asked the FCC to issue regulations to streamline permitting and the acquisition of rights-of-way. For those who lose track of the various industry advocacy organizations, ACA Connects was previously known as the American Cable Association.

The ACA Connects comments were filed in response to the open Notice of Inquiry that asks for comments that can eliminate barriers to wireline deployments. The ACA Connects comments ask the FCC to investigate and regulate three issues. First is the timeline for local communities to respond to a request for rights-of-way or construction permits. ACA Connects members have related stories of communities that sit on requests for months with no response. ACA Connects advocates for a shot clock that requires communities to react within a specified time, similar to what has been required by the FCC for requests for placing a new wireless tower.

Second, the group asks that fees charged for access to rights-of-ways be cost-based and objectively reasonable, and that new ISPs are provided the same treatment that was provided to incumbent providers. There are communities that want large up-front fees to obtain rights-of-way and permits that go far beyond a reasonable value. I’ve often suspected that this is a result of cities losing franchise fees as the cable TV industry continues to lose customers.

ISPs also object to hidden fees and costs. The filing documents examples of unreasonable costs, such as having to bury conduit deeper than is required by industry standards. The filing cites an example where an ISP was asked to repave a full block after disturbing only a small portion of a sidewalk.

It’s worth noting that these are not universal problems, and many communities are welcoming fiber overbuilders with open arms and easing the process of bringing competition to their community. But any ISP understands how unexpected delays and costs for a routine function like obtaining rights-of-ways and permits can delay, and even kill plans to complete a new network project.

ACA Connects recognizes that this would be a big lift for the FCC. Communities are going to strongly resist any efforts to dictate rules for how cities manage and charge for rights-of-way. The FCC has made headway in managing the placement of towers and wireless facilities. But that’s partially because the process of siting a tower is unique. However, rights-of-way rules apply to a lot larger universe than just ISPs. Any changes to the rules will suddenly change the way that cities interact with electric utilities, cable companies, gas utilities, and even the general public who wants to make changes like cutting a new driveway into a busy road.

Local communities view control or rights-of-ways as one of the most important rights of a community and will resist any attempt by a federal agency to change the rules. I predict a huge legal battle if the FCC decides to tackle this. Not that it should matter, but that means that implementing what ACA Connects recommends could take many years and many lawsuits before implementation.

The FCC’s ability to tackle something like this has been weakened by recent Supreme Court rulings. For example, in Loper Bright Enterprises v. Raimondo, the Supreme Court largely ended the Chevron deference and ruled that federal agencies are on shaky ground when they make decisions that are not explicitly directed by Congress. In the 2025 ruling, McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., the Supreme Court ruled that Courts can more easily disagree with rulings made by federal agencies, making it easier for courts to disagree with orders made by the FCC.

Like with many other regulatory issues, the reality of the court rulings means the right forum for fixing these issues is in Congress. But Congress has been conspicuously missing from regulation since the Loper Bright ruling. There is no question that the ISPs that prompted ACA Connects to file these comments are feeling pain in the market. But even if the FCC tackles what they are requesting, there won’t be any quick fixes.

ACA Connects Plea – Don’t Regulate Us

I’m starting to wonder if big cable companies and telcos are assuming that a fifth FCC Commissioner will soon be seated because the lobbying arms of these companies have been publishing documents that are an open plea to not regulate them. The latest comes in the form of a whitepaper from ACA Connects, which represents the mid-sized ISPs like Cable ONE, WOW! Internet, Mediacom, TDS, Armstrong, Hotwire, and ISPs of a similar size.

You might recall that the giant ISPs put out a whitepaper through USTelecom that made the silly argument that broadband is getting cheaper, with the punch line being, “Don’t regulate us”. The ACA paper takes a different tactic and argues that most of the country already is, or will soon have competition, with the same punch line. It’s important to understand that these papers are not written for the general public so much as for the politicians in Washington D.C. The average consumer knows that broadband is not getting cheaper, and most know they have only one realistic choice of fast ISP.

The opening sentence sums up the point of the whitepaper clearly: ACA Connects uses FCC data to demonstrate that fixed broadband competition is thriving in the United States and will become only more intense in the near future. Industry insiders instantly go on the alert with any statements drawn from the faulty FCC mapping data. It’s clear that data significantly overstates broadband speeds and availability in the country.

The paper then marches out arguments about the current effectiveness of competition. Let’s start with the facts touted in the paper. The whitepaper suggests the following statistics for June 2022:

  • 93.6% of homes have access today to at least two ISPs that offer speeds of 25/3. The key word in that definition is that the speeds are offered, which is far different than what is being delivered. We know there is still a huge amount of DSL and fixed wireless in the country that is reported to the FCC as capable of 25/3 Mbps but which delivers far slower speeds.
  • 91% of households today have one provider that offers speeds of at least 100/20 Mbps and another that offers 25/3 Mbps. The 100/20 provider in most markets is the cable company or a fiber provider. This conveniently doesn’t acknowledge that most cable subscribers don’t receive upload speeds of 20 Mbps.
  • 63.6% of homes today have at least two providers that offer speeds of at least 100/20 Mbps. For most of these homes, one provider is a cable company, and the other provider is either a fiber provider or an FWA wireless provider like T-Mobile, or a WISP offering fast speeds. I have no doubt that this is probably close to what the current FCC data shows. I just know that in every county where I’ve dug deeper, the FCC speeds and coverage are overexaggerated.

The whitepaper goes on to claim that the vast amounts of investments that are pouring into the industry are going to increase these numbers significantly. The paper says that the number of homes with one ISP offering at least 100/20 Mbps will grow to 95%, while the percentage of folks who will have two providers offering 100/20 Mbps will grow to 73.9%.

The timing was right to publish this paper now before we get new FCC maps. While I think the new maps might need a cycle or two to get rid of the worst exaggerations, it’s not going to produce nearly as high of numbers for 2022 as cited by the ACA.

There is one statement in the whitepaper that accidentally told the truth (oops). It says that ISPs have very powerful incentive to steal customers from one another, because almost all of the incremental revenue associated with a new customer is profit. This is something that industry insiders understood well but never say out loud. If a new customer is almost all profit, that means that existing ISP customers are also almost all profit. I don’t know that I’ve ever seen a trade association make such a strong case for price regulation.

One last argument made against regulation is that the ACP program is giving a $30 discount to low-income households, thus taking the pressure off of the big ISPs to have affordable rates.

I could write twenty pages commenting on the many things said in the whitepaper that stretch the truth a bit – but it seems unnecessary since the whole point of the paper is to plant that seed that ISPs are taking care of the business of broadband and don’t need to be regulated. The conclusion of the paper aimed at Washington D.C. is there is no need to impose additional heavy-handed common-carrier-style regulation on fixed broadband providers as a whole. Doing so would yield few, if any, tangible benefits while discouraging entry, investment, and innovations, to the detriment of consumers. Finally, a strong case can be made for exempting smaller providers from such regulation even if it were to be imposed on larger providers. I love the sentiment – the large carriers in ACA Connects are willing to throw Comcast, Charter, AT&T, and Verizon under the bus if needed.