Our Uneven Regulatory Environment

I think everybody would agree that broadband is a far more important part of the American economy than landline telephone service. While something in the range of 35% of homes still have a landline, almost every home has or wants a broadband connection. If you knew nothing about our regulatory history in the U.S., you would guess that the FCC would be far more involved with broadband issues than landline telephone issues – but they’re not. Consider some of the recent regulatory actions at the FCC as evidence of how regulation is now unbalanced and mostly looks at voice issues.

Recently the FCC took action against Magic Jack VocalTec Ltd. The FCC reached a settlement with MagicJack to pay $5 million in contributions to the Universal Service Fund. MagicJack also agreed to implement a regulatory compliance plan to stay in compliance with FCC rules.

The contributions to the Universal Service Fund come from a whopping 26.5% tax on the interstate portion of telephone service, and MagicJack has refused for years to make these payments. MagicJack has been skirting FCC rules for years – which is what allows them to offer low-price telephone service.

The FCC also recently came down hard on telcos that are making a lot of money by billing excessive access charges for calls to service like Free Conference Calling.com and chat lines. These services made arrangements with LECs that are remote and that bill access on a lot of miles of fiber transport. The FCC ruled that these LECs were ‘access stimulators’ and that the long-distance companies and their customers were unfairly subsidizing free conference calling. In one of the fastest FCC reactions I can recall, just a few months after the initial ruling the FCC also published orders denying appeals to that order.

From a regulatory perspective, these kinds of actions are exactly the sort of activity one would expect out of a regulatory agency. These two examples are just a few out of a few dozen actions the FCC has taken in the last few years in their regulation of landline telephone service. The agency has been a little less busy, but also looked at cable TV issues over the last year.

Contrast this with broadband, which any person on the street would think would be the FCC’s primary area of regulation. After all, broadband is the far most important communications service and affects far more homes and businesses than telephone service or cable TV service.  But the regulatory record shows a real dearth of action in the area of broadband regulation.

In December 2019 Congress passed the Television Viewer Protection Act that prohibits ISPs and cable companies from billing customers for devices that the customer owns. It’s odd that a law would even be needed for something so commonsense, but Frontier and some cable companies have been billing customers for devices that were sold previously to customers. In one example that has gotten a lot of press, Frontier has been billing customers a $10 fee for a router that customers purchased from Verizon before Frontier bought the property.

Frontier appealed the immediate implementation of the new law to the FCC. The telco said that due to COVID-19 the company is too busy to change its practices and asked to be able to continue the overbilling until the end of this year. In a brave regulatory move in April, the FCC agreed with Frontier and will allow them to continue to overbill customers for such devices until the end of 2020.

I was puzzled by this ruling for several reasons. From a practical perspective, the regulators in the U.S. have normally corrected carrier wrongs by ordering refunds. It’s impossible to believe that Frontier couldn’t make this billing change, with or without COVID. But even if it takes them a long time to implement it, the normal regulatory remedy is to give customers back money that was billed incorrectly. Instead, the FCC told Frontier and cable companies that they could continue to rip off customers until the end of the year, in violation of the intent of the law written by Congress.

A more puzzling concern is why the FCC even ruled on this issue. When the agency killed Title II regulation, they also openly announced that they have no regulatory authority over broadband. My first thought when reading this order was to wonder if the FCC even has jurisdiction any longer to rule on issues like data modems. However, in this case, the Congress gave them the narrow authority to rule on issues related to this specific law. As hard as the FCC tries, these little nagging broadband issues keep landing in their lap – because there is no other place for them to go.

In this case, the FCC dipped briefly into a broadband issue and got it 100% wrong. Rather than rule for the customers who were being billed fraudulent charges, and going against the intent of Congress that passed the law clarifying the issue – the FCC bought into the story that Frontier couldn’t fix their billing systems until a year after the law was passed. And for some reason, even after buying the story, the FCC didn’t order a full refund of past overbilling.

If we actually had light-touch broadband regulation, then the FCC would be able to weigh in when industry actors act badly, like happened in the two telephone dockets listed above. But our light-touch regulation is really no-touch regulation and the FCC has no jurisdiction over broadband except in snippets where Congress gives them a specific task. The FCC ruling is puzzling. We know they favor the big ISPs, but siding with Frontier’s decision to openly rip off customers seems like an odd place to make a pro-ISP stand. As much as I’ve complained about this FCC giving up their broadband regulatory authority – perhaps we don’t want this to be fixed until we get regulators who will apply the same standards to broadband as they are applying to telephone service.