I’ve often hear it suggested that we ought to regulate broadband like a utility. The proponents of this idea say that this is the only way to make sure that everybody gets broadband and to make sure, over the long haul, that broadband stays affordable. But it’s never been entirely clear in hearing these arguments if people mean we should regulate the physical networks that carry broadband or the broadband products that ride on any network (or both).

Obviously in the current environment where the big ISPs have gained the favor of both the FCC and Congress regulation of this sort is not going to happen. But governments change, and so the time could come when such regulation is possible. But even if we had a pro-regulation government, I see all sorts of issues that would make such regulation hard to implement and still remain fair. Consider the following issues:

Size of ISP. Any regulation might only need to be applied to the biggest ISPs. A few companies like Comcast, AT&T, Charter (Spectrum), Verizon and CenturyLink together sell over 80% of the broadband connections in the country (and more if you count cellular data as broadband). Smaller ISPs have little market power, and some of them, like the smaller independent telephone companies, would tell you that they are already regulated to a large degree.

Incentive to Deploy New Technology. One of the reasons that historic telephone regulation worked so well was that the technology used to deliver traditional telephone service was expected to live out its full economic life, meaning that telcos could make an investment and know that they would recover the cost of doing so. But that is no longer the case. We now live in a world where there are dizzying new technologies developed all of the time that are faster, cheaper and better at delivering broadband. The large ISPs are not keeping up with technology improvements today in a fully deregulated environment where they can charge enough to recover their costs – it’s hard to imagine that regulations would do anything but slow down the rate of technology upgrades.

What gets Regulated? Today’s fiber networks are not as simple as older TDM networks. A lot of new fiber construction is being done for purposes other than serving residential customers. For example, Verizon just announced that they were ordering over $1 billion of fiber cable – but I think most of this fiber is going to be used to replace leased transport to cellular towners and is not going to be used to bring broadband to customers. It’s going to be hard in a complex network to define regulated and non-regulated assets.

What About Competition? Regulation works best with monopolies, which is why there is still regulation for electric and water companies. But the ISP world is a maze of differing levels of competition. There are cities – or neighborhoods of cities – that are competitive and areas where there are virtual monopolies – and this can differ block by block in larger cities. It’s hard to think of a regulatory scheme that somehow accounts for such differences.

Regulating Parts of Businesses. The big ISPs are no longer just ISPs, and in fact most of them make a most of their profits elsewhere. I just wrote a blog a week ago discussing how complex Comcast has become with their mix of cable networks and other businesses like television networks, sports teams, and soon cellular wireless. It’s incredibly challenging to regulate companies of this complexity because they have the ability to manipulate the books of the regulated entity to show any level of earnings they want. They could shift costs to make a regulated entity perform as well or as poorly as needed to satisfy regulators.

Realities of Wall Street. Rate regulation has always meant setting a reasonable return on investments for the regulated entity. The return for telephone companies that are still under rate regulation is being phased-down to just over 9%. To those of us who wish we had a bank account that could earn that much it might sound like a high rate of return. But the realities of Wall Street are that capital investments must earn more than that. If we put that kind of cap on new fiber investment for the big ISPS, I think the result would be a massive cut back in building new fiber. Wall Street would punish ISPs for investing capital at returns that low. And if the big companies stop building the rest of the industry including equipment vendors come to a screeching halt.

Challenges of Re-regulation. I’ve tried to work through the idea of how to take companies like Comcast and somehow regulating them. Putting the politics and the chances of this happening aside, I’m not sure how you can take assets that were built during a time of no regulation and somehow start regulating them. The court cases against that effort would probably stretch for a decade.

My conclusion from all of this is that it’s an interesting idea and thinking about it is a great mental exercise. But I can’t envision how you could somehow shove today’s unregulated companies back into a regulated environment. Even was the government determined to do so it might be too hard to do without causing more harm than good.