There’s No 5G Race

FCC Chairman Ajit Pai was recently quoted in the Wall Street Journal as saying, “In my view, we’re in the lead with respect to 5G”. Over the last few months I’ve heard this same sentiment expressed in terms of how the US needs to win the 5G race.

This talk is just more hype and propaganda from the wireless industry that is trying to create a false crisis concerning 5G in order to convince politicians that we need to break our regulatory traditions and give the wireless carriers everything they want. After all, what politician wants to be blamed for the US losing the 5G race? This kind of propaganda works. I was just at an industry trade association show and heard three or four people say that the US needs to win the 5G race.

There is no 5G race; there is no 5G war; there is no 5G crisis. Anybody that repeats these phrases is wittingly or unwittingly pushing the lobbying agenda of the big wireless companies. Some clever marketer at one of the cellular carriers invented the imaginary 5G race as a great way to emphasize the importance of 5G.

Stop and think about it for a second. 5G is a telecom technology, not some kind of military secret that some countries are going to have, while others will be denied. 5G technology is being developed by a host of multinational vendors that are going to sell it to anybody who wants it. It’s not a race when everybody is allowed to win. If China, or Germany, or Finland makes a 5G breakthrough and implements some aspect of 5G first, within a year that same technology will be in the gear available to everybody.

What I really don’t get about this kind of hype and rhetoric is that 5G is basically a new platform for delivering bandwidth. If we are so fired up to not lose the 5G race, then why have we been so complacent about losing the fiber race? The US is far down on the list of countries in terms of our broadband infrastructure. We’ve not deployed fiber optics nearly as quickly as many other countries, and worse we still have millions of households with no broadband and many tens of millions of others with inadequate broadband. That’s the race we need to win because we are keeping whole communities out of the new economy, whch hurts us all.

I hope that my readers don’t think I’m against 5G because I’m for any technology that improves access to bandwidth. What I’m against is the industry hype that paints 5G as the technology that will save our country – because it will not. Today, more than 95% of the bandwidth we use is carried over wires, and 5G isn’t going to move that needle much. There are clearly some bandwidth needs that only wireless will solve, but households and businesses are going to continue to rely on wires to move big bandwidth.

When I ask wireless engineers about the future they almost all have painted the same picture. Over time we will migrate to a mixture of WiFi and millimeter wave spectrum indoors to move around big data. When virtual and augmented reality was first mentioned a few years ago, one of the big promises we heard was for telepresence, where we’ll be able to meet and talk with remote people as if they are sitting with us. That technology hasn’t moved forward because it requires huge broadband beyond what today’s WiFi routers can deliver. Indoor 5G using millimeter wave spectrum will finally unleash gigabit applications within the home.

The current hype for 5G has only one purpose. It’s a slick way for the wireless carriers to push the government to take the actions they want. 5G was raised as one of the reasons to kill net neutrality. It’s being touted as a reason to gut most of the rest of existing telecom legislation. 5G is being used as the reason to give away huge blocks of mid-range spectrum exclusively to the big wireless companies. It’s pretty amazing that the government would give so much away for a technology that will roll out slowly over the next decade.

Please think twice before you buy into the 5G hype. It takes about five minutes of thinking to poke a hole in every bit of 5G hype. There is no race for 5G deployment and the US, by definition, can’t be ahead or behind in the so-called race towards 5G. This is just another new broadband technology and the wireless carriers and other entrepreneurs will deploy 5G in the US when it makes economic sense. Instead of giving the wireless companies everything on their wish list, a better strategy by the FCC would be to make sure the country has enough fiber to make 5G work.

5G For Rural America?

FCC Chairman Ajit Pai recently addressed the NTCA-The Rural Broadband Association membership and said that he saw a bright future for 5G in rural America. He sees 5G as a fixed-wireless deployment that fits in well with the fiber deployment already made by NTCA members.

The members of NTCA are rural telcos and many of these companies have upgraded their networks to fiber-to-the-home. Some of these telcos tackled building fiber a decade or more ago and many more are building fiber today using money from the ACAM program – part of the Universal Service Fund.

Chairman Pai was talking to companies that largely have been able to deploy fiber, and since Pai is basically the national spokesman for 5G it makes sense that he would try to make a connection between 5G and rural fiber. However, I’ve thought through every business model for marrying 5G and rural fiber and none of them make sense to me.

Consider the use of millimeter wave spectrum in rural America. I can’t picture a viable business case for deploying millimeter wave spectrum where a telco has already deployed fiber drops to every home. No telco would spend money to create wireless drops where they have already paid for fiber drops. One of the biggest benefits from building fiber is that it simplifies operations for a telco – mixing two technologies across the same geographic footprint would add unneeded operational complications that nobody would tackle on purpose.

The other business plan I’ve heard suggested is to sell wholesale 5G connections to other carriers as a new source of income. I also can’t imagine that happening. Rural telcos are going to fight hard to keep out any competitor that wants to use 5G to compete with their existing broadband customers. I can’t imagine a rural telco agreeing to provide fiber connections to 5G transmitters that would sit outside homes and compete with their existing broadband customers, and a telco that lets in a 5G competitor would be committing economic suicide. Rural business plans are precarious, by definition, and most rural markets don’t generate enough profits to justify two competitors.

What about using 5G in a competitive venture where a rural telco is building fiber outside of their territory? There may come a day when wireless loops have a lower lifecycle cost than fiber loops. But for now, it’s hard to think that a wireless 5G connection with electronics that need to be replaced at least once a decade can really compete over the long-haul with a fiber drop that might last 50 or 75 years. If that math flips we’ll all be building wireless drops – but that’s not going to happen soon. It’s probably going to take tens of millions of installations of millimeter wave drops until telcos trust 5G as a substitute for fiber.

Chairman Pai also mentioned mid-range spectrum in his speech, specifically the upcoming auction for 3.5 GHz spectrum. How might mid-range spectrum create a rural 5G play that works with existing fiber? It might be a moot question since few rural telcos are going to have access to licensed spectrum.

But assuming that telcos could find mid-range licensed spectrum, how would that benefit from their fiber? As with millimeter wave spectrum, a telco is not going to deploy this technology to cover the same areas where they already have fiber connections to homes. The future use of mid-range spectrum will be the same as it is today – to provide wireless broadband to customers that don’t live close to fiber. The radios will be placed on towers, the taller the better. These towers will then make connections to homes using dishes that can communicate with the tower.

Many of the telcos in the NTCA are already deploying this fixed wireless technology today outside of their fiber footprint. This technology benefits from having towers fed by fiber, but this rarely the same fiber that a telco is using to serve customers. In most cases this business plan requires extending fiber outside of the existing service footprint – and Chairman Pai said specifically that he saw advantage for 5G from existing fiber.

Further, it’s a stretch to label mid-range spectrum point-to-multipoint radio systems as 5G. From what numerous engineers have told me, 5G is not going to make big improvements over the way that fixed wireless operates today. 5G will add flexibility for the operator to fine-tune the wireless connection to any given customer, but the 5G technology won’t inherently increase the speed of the wireless broadband connection.

I just can’t find any business plan that is going to deliver 5G in rural America that takes advantage of the fiber that the small telcos have already built. I would love to hear from readers who might see a possibility that I have missed. I’ve thought about this a lot and I struggle to find the benefits for 5G in rural markets that Chairman Pai has in mind. 5G clearly needs a fiber-rich environment – but companies who have already built rural fiber-to-the-home are not going to embrace a second overlay technology or openly allow competitors onto their networks.

Looking Back at the Net Neutrality Order

Chairman Ajit Pai used three arguments to justify ending net neutrality. First, he claimed that the net neutrality rules in effect were a disincentive for big ISPs to make investments and that ending net neutrality would lead to a boom in broadband investment. He also argued that ending net neutrality would free the big ISPs to make broadband investments in rural parts of the US that were underserved. Finally, he argued that the end of net neutrality would spark the growth of telecom jobs. It’s been two years since he used those arguments to justify the repeal net neutrality and it’s easy to see that none of those things have come to pass.

The investment claim is easy to check. The big ISPs are starting to release their 2018 financial results and it looks like capital spending in 2018 – the first year after the end of net neutrality – are lower than in 2017. We’ve already heard from Comcast and Charter and that capital spending was down in 2018 over 2017. The industry analyst MoffettNathanson has already predicted that capital spending for the four biggest cable companies – Comcast, Charter, Altice, and CableONE is expected to drop by 5.8% more in 2019. Anybody who watches the cable companies understands that they all just made big investments in upgrading to DOCSIS 3.1 and that capital spending ought to drop significantly for the next several years.

MoffettNathanson also predicts that wireline capital spending for Verizon and AT&T will drop from $20.3 billion in 2018 to $19.6 billion in 2019. The press is also full of articles lamenting that investments in 5G by these companies is far smaller than hoped for by industry vendors. It seems that net neutrality had no impact on telecom spending (as anybody who has spent time at an ISP could have told you). It’s virtually unheard of for regulation to drive capital spending.

The jobs claim was a ludicrous one because the big companies have been downsizing for years and have continued to do so after net neutrality was repealed. The biggest layoff came from Verizon in October 2018 when the company announced that it was eliminating 44,000 jobs and transferring another 2,500 to India. This layoff is an astronomical 30% of its workforce. AT&T just announced on January 25 that it would eliminate 4,600 jobs, the first part of a 3-year plan to eliminate 10,000 positions. While the numbers are smaller for Comcast, they laid off 500 employees on January 4 and also announced the close of a facility with 405 employees in Atlanta.

Pai’s claim that net neutrality was stopping the big ISPs from investing in underserved areas might be the most blatantly false claim the Chairman has made since he took the Chairman position. The big ISPs haven’t made investments in rural America in the last decade. They have been spending money in rural America in the last few years – but only funds handed to them by the FCC through the CAF II program to expand rural broadband and the FCC’s Mobility Fund to expand rural cellular coverage. I’ve been hearing rumors all over the industry that most of the big ISPs aren’t even spending a lot of the money from those two programs – something I think will soon surface as a scandal. There is no regulatory policy that is going to get the big ISPs to invest in rural America and it was incredibly unfair to rural America for the Chairman to imply they ever would.

Chairman Pai’s arguments for repealing net neutrality were all false and industry insiders knew it at the time. I probably wrote a dozen blog posts about the obvious falsehoods being peddled. The Chairman took over the FCC with the goal of eliminating net neutrality at the top of his wish list and he adopted these three talking points because they were the same ones being suggested by big ISP lobbyists.

What bothers me is this is not how regulation is supposed to work. Federal and state regulatory agencies are supposed to gather the facts on both sides of a regulatory issue, and once they choose a direction they are expected to explain why. The orders published by the FCC and other regulatory bodies act similar to court orders in that the language in these orders are then part of the ongoing record that is used later to understand the ‘why’ behind an order. In later years courts rely on the discussion in regulatory orders to evaluate disputes based upon the new rules. The order that repeals net neutrality sadly repeats these same falsehoods that were used to justify the repeal.

There are always two sides for every regulatory issue and there are arguments that could be made against net neutrality. However, the Chairman and the big ISPs didn’t want to publicly make the logical arguments against net neutrality because they knew these arguments would be unpopular. For example, there is a legitimate argument to made for allowing ISPs to discriminate against certain kinds of web traffic – any network engineer will tell you that it’s nearly mandatory to give priority to some bits over others. But the ISPs know that making that argument makes it sound like they want the right to shuttle customers into the ’slow lane’, and that’s a PR battle they didn’t want to fight. Instead, telecom lobbyists cooked up the false narrative peddled by Chairman Pai. The hoped the public would swallow these false arguments rather than argue for the end of net neutrality on its merits.

Killing FTC Regulation?

NCTA, the lobbying group for the big cable companies filed a pleading with the Federal Trade Commission (FTC) asking the agency to not get involved with regulating the broadband industry. When the FCC killed net neutrality, Chairman Ajit Pai promised that it was okay for the FCC to step away from broadband regulation since the FTC was going to take over much of the regulatory role. Now, a month after net neutrality went into effect we have the big cable ISPs arguing that the FTC should have a limited role in regulation broadband. The NTCA comments were filed in a docket that asks how the FTC should handle the regulatory role handed to them by the FCC.

Pai’s claim was weak from the outset because of the nature of the way that the FTC regulates. They basically pursue corporations of all kinds that violate federal trade rules or who abuse the general public. For example, the FTC went after AT&T for throttling customers who had purchased unlimited data plans. However, FTC rulings don’t carry the same weight as FCC orders. Rulings are specific to the company under investigation. Rulings might lead other companies to modify their behavior, but an FTC order doesn’t create a legal precedent that automatically applies to all carriers. In contrast, FCC rulings can be made to apply to the whole industry and rulings can change the regulations for every ISP.

The NCTA petition asks the FTC to not pursue complaints about regulatory complaints against ISPs. For example, they argue that the agency shouldn’t be singling out ISPs for unique regulatory burdens, but should instead pursue the large Internet providers like Facebook and Google. The NCTA claims that market forces will prevent bad behavior by ISP and will punish a carrier that abuses its customers. They claim there is sufficient competition for cable broadband, such as from DSL, that customers will leave an ISP that is behaving poorly. In a world where they have demolished DSL and where cable is a virtual monopoly in most markets they really made that argument! We have a long history in the industry that says otherwise, and even when regulated by the FCC there are long laundry lists of ways that carriers have mistreated their customers.

One of the more interesting requests is that the ISPs want the FTC to preempt state and local rules that try to regulate them. I am sure this is due to vigorous activity at the state level currently to create rules for net neutrality and privacy regulations. They want the FTC to issue guidelines to state Attorney Generals and state consumer protection agencies to remind them that broadband is regulated only at the federal level. It’s an interesting argument to make after the FCC has punted on regulating broadband and when this filing is asking the FTC to do the same. The ISPs want the FTC to leave them alone while asking the agency to act as the watchdog to stop others from trying to regulate the industry.

I think this pleading was inevitable since the big ISPs are trying to take full advantage of the FCC walking away from broadband regulation. The ISPs view this as an opportunity to kill regulation everywhere. At best the FTC would be a weak regulator of broadband, but the ISPs don’t want any scrutiny of the way they treat their customers.

The history of telecom regulation has always been in what I call waves. Over time the amount of regulations build up to a point where companies can make a valid claim of being over-regulated. Over-regulation can then be relieved either by Congress or by a business-friendly FCC who loosens regulatory constraints. But when regulations get too lax the big carriers inevitably break enough rules that attracts an increase of new regulation.

We are certainly hitting the bottom of a trough of a regulatory wave as regulations are being eliminated or ignored. Over time the large monopolies in the industry will do what monopolies always do. They will take advantage of this period of light regulation and will abuse customers in various ways and invite new regulations. My bet is that customer privacy will be the issue that will start the climb back to the top of the regulatory wave. The ISPs argument that market forces will force good behavior on their part is pretty laughable to anybody who has watched the big carriers over the years.

Who WIll the Big ISPs Blame Now?

For the last few years the biggest ISPs have blamed regulations for reducing the amount of capital they are willing to invest. They specifically blamed Title II regulation of broadband and net neutrality rules as being a disincentive for them to invest in broadband infrastructure.

The FCC Chairman Ajit Pai adopted this same narrative and used it for justification to repeal net neutrality. He is still sticking to this story now that Title II regulation has been repealed and this week will be telling this story to the House Communications Subcommittee. In a prepared statement he claims that the repeal of the net neutrality rules is now paving the way for increased capital investment and better broadband service.

However, the whole narrative is false. There is no evidence that big ISPs held back on broadband investments before Title II authority was repealed and there is no evidence that the repeal has somehow unleashed a wave of new broadband investment. I’m not going to track the numbers in this blog, but the capital budgets of all of the big ISPs have been relatively steady for a number of years.

This particular narrative is just the latest iteration on a theme that the big ISPs have used for decades. The big ISPs have always publicly claimed that regulations were killing them, while privately admitting that they were able to successfully work around most regulations. It’s the nature of regulated industries to push back against regulation and ISPs don’t differ from the many other regulated industries in this regard.

A quick look at each of the major ISPs shows a different story than is being pushed by Chairman Pai. AT&T is a good example. They were required by an agreement from the purchase of DirecTV to pass 12 million homes and businesses with fiber. For a while it looks like they were shirking that requirement, but somewhere along the line they seem to have embraced it. They have been quietly extending fiber to apartment complexes and also to any homes or business that are located close to any of their many fiber nodes around the country. This expansion started well before the net neutrality repeal. AT&T for now has no plans to deploy 5G and says they don’t see a business case for it yet. The company is quietly walking away from rural copper and only beefing up rural cellular broadband where the FCC funded it with CAF II money.

Comcast doesn’t seem to have changed strategies for a number of years. They build fiber to shrink node sizes to relieve local network congestion. They made a decision well before the net neutrality appeal to embrace upgrades to DOCSIS 3.1. The company has entered the cellphone business, but for now resells minutes from the other cellular company networks, and only in their operating footprint. They say they plan to eventually build cellular networks to increase the profitability of the business.

Verizon has been shrinking their landline broadband networks and sold a pile of customers, including many on FiOS fiber to Frontier. The company made an announcement several years ago, and before the repeal of net neutrality that they were going to build new FiOS fiber in Boston – but it appears that project has largely been put on hold. Verizon might be the only big ISP who claims to have plans to expand residential broadband and says it will build 5G in a number of markets outside of its traditional footprint. But there is a lot of industry skepticism that this will be much larger trials of new technology and not a major capital outlay.

CenturyLink recently made it clear that they are walking away from making new broadband investments. They new CEO made it clear that the company will not be making any new capital expenditures that will earn infrastructure levels of returns. That is a 180-degree turnaround from a company that built fiber in 2017 to pass 900,000 premises and is the opposite of what Chairman Pai is claiming.

All of the big telcos have largely abandoned DSL and haven’t made new investments for years, even though there are faster DSL technologies available. To make matters worse the telcos are trying to kill the regulations from the Telecommunications Act of 1996 that allows competitors to offer faster DSL using telco copper – a move that would kick hundreds of thousands of customers nationwide off of decent broadband and force the back to the more expensive cable monopolies.

I can’t see any evidence from the big ISPs that the repeal of net neutrality made any difference in their capital spending plans. When you look at what these ISPs tell their investors the topic of regulation never arises – which it shouldn’t. The big ISPs have always invested in areas where they could foresee returns and regulation had no real negative impact on those returns. The whole false narrative has been a lobbying effort to get out from under regulation – and with this FCC the lobbying worked.

Now that Title II regulation is dead I wonder what the ISPs will blame for not investing in residential and rural broadband? They can’t point the finger any longer at regulations and I’m sure they will find a new story that sounds good. The only ISP that seems to be telling the truth is CenturyLink, and I suspect that they will soften that narrative since they are telling existing residential customers that they no longer care about them.

FCC Whacking the Lifeline Program

A few weeks ago the FCC took steps a few weeks ago that are going to significantly cut back on the Lifeline program. This is a program that has historically provided a subsidy of $9.25 per month off phone service, but which was expanded under the Tom Wheeler FCC to to also be able to cover broadband.

We had a strong hint that this was coming when one of the first acts of new FCC Chairman Ajit Pai was to halt new carriers from becoming eligible to participate in the Lifeline program.

One of the primary stated reasons for the changes are that the Lifeline program is full of fraud and waste. This is something that was identified by the FCC over two years ago and they put in place a remedy to fix the fraud issues. Lifeline goes to households that qualify for various federal welfare programs. The main reasons for fraud was providing the subsidy to those that weren’t eligible or continuing eligibility after people no longer qualified for welfare.

The obvious fix for this was for the FCC to maintain a database of those that are eligible and require providers to verify eligibility for each customer each month. That fix was started two years ago and is apparently still two years from being implemented. I find it astounding that it would take four years to put together what is basically a database lookup, especially for an industry that maintains numerous complex databases. This sounds like something a corporate IT team could implement in a few months and failure to make this work in a timely manner speaks mostly about the failure of government to be able to implement technical systems. Since the fix would largely eliminate the fraud I find it disingenuous for the FCC to still be looking for changes to the program due to fraud issues – this is something they should have fixed long ago.

There are a few changes to the program to be implemented immediately along with a list of proposed future changes. The immediate change to the Lifeline program include the following:

  • Limit Lifeline on Indian reservation to only carriers that are facility-based. This eliminates resellers, who are the primary providers of cellular service in rural areas and on tribal lands. Since AT&T and Verizon don’t actively promote Lifeline this likely means that many eligible customers will lose the subsidy. Even where a customer can change to a facility-based option, it’s often more expensive, which effectively would eliminate any savings from lifeline.
  • Eliminated Lifeline plans that rely on WiFi networks instead of cellular networks. In cities there a number of carriers today that sell WiFi only plans, which are affordable and effective where there is widespread WiFi. These phones use VoIP over WiFi instead of cellular and it seems odd to eliminate based upon the technology used.

The big changes are those proposed for the future. As we’ve seen often in the past, specific changes proposed by the FCC tend to get implemented unless there is big pushback by the industry. The proposed changes include:

  • Requiring people to pay a percentage of their phone bill. Today there are cellular carriers willing to only charge $9.95 for a barebones Lifeline plan that has limited minutes, and the FCC wants all Lifeline customers to pay a share of the cost of the service.
  • Extending the requirement that Lifeline is only available for facility-based carriers. In the cellular world that means AT&T, Verizon, T-Mobile and Sprint. It would eliminate the many cellular resellers from participating in the program. Today over 70% of Lifeline recipients are through resellers.
  • Setting some kind of cap on the whole Lifeline program to stop it from growing.

It seems clear to me that this FCC would eliminate Lifeline completely if they could. Since the program was created by Congress it would be impossible to eliminate it without additional Congressional action. But all of the FCC’s proposed changes will significantly cut back on eligibility and make it harder to households to take part in the program.

I will be honest in that I never gave Lifeline a lot of thought in the past. But a few years ago I was introduced to a program that supplied Lifeline phones to the homeless. The carriers provide the phone and the service for $9.25 per month with no cost to the homeless. These are not smart phones, but very basic older-technology phones. And the plans were not lavish, but provides users with some limited minutes during the month plus some basic texting and web connection. The homeless people participating in the program said that it was transformational in that it allowed them to use the phone to connect to social services, to search for work and to communicate with loved ones. The FCC’s proposal would largely eliminate programs like this one, to the benefit of nobody.

FCC’s Net Neutrality Myths

We’ve been having the policy debate over creating net neutrality since at least 2005. During that time there have been a lot of arguments made on both sides of the issue. But overall it’s been a policy debate that is similar to the many other issues discussed in the telecom regulatory world. Both sides make their arguments and eventually a decision is made to regulate or not regulate according to the arguments. Politics has always played a role in these debates and issues tend to slew a bit according to the political leanings of the FCC at any given time.

FCC Chairman Ajit Pai recently released a document that argues strenuously for the end of net neutrality. This document lists various ‘myths’ associated with net neutrality and then describes why each myth is untrue. If you look back at the history of the net neutrality debate you’ll see that his list is a summary of the arguments being made over time by the big ISPs. This is a document that one would expect from AT&T, Comcast, USTA or ALEC – but not from the Chairman of the FCC.

I have a problem with the Chairman’s list because most of the conclusions drawn are factually incorrect. It’s expected for the big ISPs to make arguments in their favor, even if those arguments are not wholly true – but it’s disturbing to see these same arguments coming from the FCC, which is supposed to be the arbiter for telecom policy issues.

I don’t think I have any bias that makes me see these statements as false. Anybody whose been reading my blogs knows that I am as biased as anybody else in the industry. My bias is towards policies that allows smaller ISPs to compete. And I am strongly in favor of policies that try to solve the rural broadband gap and the overall digital divide. But other than that I am largely neutral on other telecom policies and am receptive to hear all arguments on the various issues. Other than as a consumer I have no strong bias in the net neutrality debate because I don’t believe that small ISPs will violate net neutrality even if there aren’t any rules. The net neutrality argument really only concerns the behavior of the largest and most powerful ISPs in the telecom market. I could go through the document and discuss each ‘myth’ – but that doesn’t lend itself to a blog-length discussion. But I think every one of the Chairman’s arguments is stretching the truth.

For example, the document rolls out the old big-ISP argument that broadband investments have dropped due to Title II regulation. This argument goes back to shoddy work done by one researcher on the big ISP payroll and has been debunked numerous times. The numbers tell a different story and investments have not dropped. So do the actions of the big ISPs – AT&T, Verizon, Comcast and most of the other big ISPs are all undertaking aggressive expansion and upgrades. Look at what each of these companies is telling their stockholders and you don’t see an industry in retreat. Title II regulation has had almost zero impact on investment decisions (and regulation rarely has ever done so).

Chairman Pai also argues that the Internet was free and open before we had Title II regulation. That’s not the way I remember it. The net neutrality debate has been going on since 2005 and the ISPs have been held in check by the threat of net neutrality regulation. Even without Title II regulations in place the FCC was able in the past to pressure the ISPs on practices like data caps and zero-rating by the threat of future regulation – and for the last decade this has largely worked. Title II regulation didn’t just appear out of thin air with the FCC order in 2014 – the net neutrality principles were the backbone of FCC regulation and actions for a decade before then.

This FCC document also argues that the Federal Trade Commission is well equipped to police unfair, deceptive and anticompetitive behavior from ISPs. That gives the FCC cover to duck out of regulating broadband. What this doesn’t mention is that the big ISPs are now attacking the FTC’s right to regulate broadband (a blog will be coming on this soon). I find it extraordinary that the FCC would declare that it should have no role in regulating broadband – the most important telecommunications product. Regulating broadband seems to be their role in the industry almost by definition.

I guess more than anything else this document disappoints me. While there have always been some politics involved in the decisions made in our industry, past FCCs have largely decided issues on their merits. My own business was founded largely due to the Telecommunications Act of 1996 which unleashed much-needed competition into the industry. But I look at this current FCC and see that the pendulum has swung to one far extreme and the merit of issues aren’t even part of policy discussions. That saddens me.

A New FCC Definition of Broadband?

Section 706 of the Telecommunications Act of 1996 requires that the FCC annually review broadband availability in the country. Further, that section of law then requires the FCC to take immediate action if they find that broadband is not being deployed fast enough. This is the law that in the past prompted the FCC to set a definition of broadband – first set at 4/1 Mbps a decade ago then updated to 25/3 Mbps in 2015. The FCC felt it couldn’t measure broadband deployment without a benchmark.

In this year’s annual proceeding the FCC has suggested a change in the definition of broadband. They are suggesting there should be a minimum benchmark of 10/1 Mbps used to define cellular broadband. That doesn’t sound like a bad idea since almost everybody uses cellular broadband at times and it would be good to know that the cellular companies have a speed target to shoot for.

But I am alarmed at how the FCC wants to use the new proposed cellular broadband standard. They are suggesting that cellular service that meets the 10/1 Mbps standard can be considered as a substitute for a landline broadband connection that meets the 25/3 Mbps test. This would represent a huge policy shift at the FCC because use of the cellular standard would allow them to claim that most Americans can get broadband. And that would eliminate them having to take any action to make broadband better in the country.

We can’t be particularly surprised by this shift in policy because now-Chairman Ajit Pai vociferously objected when the FCC increased the definition of broadband in January 2015 to 25/3 Mbps. He argued at the time that the speed definition of broadband should not be increased and that both satellite and cellular broadband ought to be considered as substitutes for landline broadband.

But as almost anybody with a broadband connection can tell you, speed is not the only parameter that matters with a broadband connection. Speed matters for folks in a busy broadband home like mine when different family members are trying to make simultaneous broadband connections. But even homes with lower broadband needs care about more than speed. The limiting factor with cellular data is the stingy amount of total downloads allowed in a month. The new ‘unlimited’ cellular plans are capped at 20 to 25 gigabytes per month. And satellite data not only has stingy data caps but also suffers from latency issues that means that a satellite customer can’t take part in any real-time activity on the web such as VoIP, distance learning or live streaming video.

There are several possible motives for this policy shift. First, this could just be an attempt by the FCC to take off the pressure of having to promote faster broadband everywhere. If their annual Section 706 examination concludes that most people in the country have broadband then they don’t have to push expensive federal programs to expand broadband coverage. But there is also the potential motive that this has been prompted by the cellular companies that want even more federal money to expand their rural cellular networks. AT&T has already been given billions in the CAF II proceeding to largely improve rural cellular towers.

Regardless of the motivation this would be a terrible policy shift. It would directly harm two huge groups of people – rural America and the many urban pockets without good broadband. This ruling would immediately mean that all urban areas would be considered to have broadband today along with a lot of rural America.

I don’t think this FCC has any concept of what it’s like living in rural America. There are already millions of households that already use cellular or satellite broadband. I’ve heard countless stories from households with schoolkids who spend upwards of $500 per month for cellular broadband – and even at that price these homes closely monitor and curtail broadband usage.

There are also huge swaths of rural America that barely have cellular voice service let alone 10/1 Mbps cellular broadband. I was recently in north-central Washington state and drove for over an hour with zero AT&T cell coverage. But even where there is cellular voice service the quality of broadband diminishes with distance from a cell tower. People living close by a tower might get okay cellular data speeds, but those even just a few miles away get greatly diminished broadband.

I know that Chairman Pai has two kids at home in Arlington Virginia. There he surely has fast broadband available from Comcast, and if he’s lucky he also has a second fast alternative from Verizon FiOS. Before the Chairman decides that cellular broadband ought to be a substitute for a landline connection I would challenge him to cut off his home broadband connection and use only cellular service for a few months. That would give him a taste of what it’s like living in rural America.

Local, State or Federal Regulation?

Last week the FCC clarified its intentions for the Broadband Deployment Advisory Committee (BDAC). This group was tasked with exploring a wide range of topics with the goal of finding ways to lower barriers for broadband deployment.

The BDAC was divided into subgroups with each examining issues such as speeding up access to poles and conduits, or how to streamline the morass of local regulations of such things as rights-of-ways that can slow down fiber deployment.

There has been a huge amount of buzz in the industry since the expectation has been that the FCC would act to impose federal rules that ‘fix’ some of the most important impediments to competition. That expectation was bolstered on several occasions by speeches made by new FCC Chairman Ajit Pai that hinted that the FCC was willing to take steps to lower barriers to broadband deployment.

But FCC Senior Counsel Nicholas Degani just clarified that the FCC’s intentions are not to create new regulations, but rather to create ‘model codes’ that they hope that cities and states around the country will use to make it easier to deploy broadband.

We’ll have to wait a while to see if the FCC really can refrain from issuing new regulations. Chairman Pai has said many times that he is in favor of ‘light touch’ regulation and the agency is in the process of relaxing or undoing many of the regulations from the past. But one thing that I have repeatedly seen from regulators over the years is that they love to regulate. It will take major restraint for the FCC to not try to ‘fix’ the many problems that the BDAC is highlighting. This will be the ultimate test to see if they really are anti-regulation.

Frankly, some of the issues that the BDAC has been exploring cry out for some sort of regulatory relief. For example, in some parts of the country it takes so long and is so expensive to get onto poles that it’s nearly impossible to implement a business plan that needs pole access. And it is extremely frustrating for a national company that deploys fiber everywhere to work with local rules that vary widely from city to city.

Part of what is pushing this effort is the fact that everybody expects a massive investment in new fiber over the next decade as fiber is built to bring bandwidth to homes and as we deploy 5G networks. Everybody recognizes that there are impediments that add delay costs to those deployments.

At the same time that the FCC has been looking at the issues there are numerous state attempts to create state regulatory rules to fix some of these problems. A number of states have already created regulations that are aimed at making it easier to do things like get access to poles. But state efforts vary widely in the motivation for new regulations. There are some states that are looking hard at imposing statewide rules that balance the needs of competitors, network owners and municipalities.

But there are other attempts prompted by the big cellular companies and ISPs to run roughshod over the rights of pole owners and municipalities. These efforts are being driven, in part, by model legislation developed by ALEC and funded by the big companies. Many of these rules are attempting to set low nationwide rates for pole attachments and also to force streamlined timelines that ignore local conditions.

Finally, there are efforts being made by many cities to make it easier to deploy broadband. Most cities understand that they need fiber everywhere to remain competitive with other cities. Yet these efforts are often ineffective because cities, by definition, have a lot of stakeholders to satisfy. When a City looks at changing local rules they end up have to give a lot of weight to issues such as the environment, aesthetics, historic preservation, safety, unions and others that make it impossible to create rules that favor fiber deployment over these other concerns.

Fixing these issues is a problem that may never find the right solution. We live in a country where cities across the board have been granted varying degrees of controlling things like rights-of-way that affect network deployments. Fiber deployment is not the first issue that has come along that has pitted federal, state and local regulators against each other when trying to solve the same problems. It’s not unlikely that if either the FCC or the states try to strongarm cities that we will see a pile of lawsuits challenging any egregious decisions. And that just leads to delays since disputed laws don’t go into effect. I hope we can find solutions that don’t lead to those lawsuits, because the worst kind of regulation is one that is in limbo in some court for years. Nobody is likely to make any significant new investment in that environment.

FCC to Investigate MDU Broadband

The FCC is launching an investigation into anticompetitive practices that are keeping broadband from coming to apartments and other multi-tenant buildings. They have issued a Notice of Inquiry in Docket in GN Docket 17-142 looking into the topic and are expected later this month to formally release it to the public. The docket specifically looks at barriers to competition in what the FCC is calling MTEs – multiple tenant environments, which includes apartments, condominiums, shopping malls and cooperatively owned buildings.

This is not the first time that the FCC has tackled the topic. Back in 2008 the commission banned some contractual arrangements that gave incumbent ISPs unfair advantage over competitors. However, that order didn’t go far enough, and ISPs basically shifted to arrangements that were not banned by the FCC. The FCC is looking into the topic because it’s become obvious that exclusive arrangements are harming the introduction of faster broadband into a sizable portion of the market. There are cities where half or more of residents live in apartments and don’t have the same competitive choices as those living in single family homes.

The FCC has an interesting legal challenge in looking at this issue. This docket specifically looks at the potential for regulating broadband access in MTEs, something that the FCC has the authority to do under Title II regulation. But assuming that the FCC moves forward this year with plans to scrap Title II regulation they might also be eliminating their authority to regulate MTEs in the manner suggested by the NOI. If they decide to act on the issue it will be interesting to see how they define their authority to regulate anything that is broadband related. That might be our first glimpse at what a regulatory regime without Title II looks like.

Further, Chairman Ajit Pai has shown a strong preference to lighten the regulations on ISPs and you have to wonder if he is willing to really tackle a new set of regulations. But he’s faced with the dilemma faced by all regulators in that sometimes the market will not automatically produce the results that are beneficial to society and sometimes regulations are the only way to get corporations and others to behave in the way that benefits everybody. It’s clear that residents in MTEs have little or no competition and choice and new regulations might be the only way to get it for them.

The NOI looks at specific issues related to MTE broadband competition:

  • It asks if the FCC should consider overriding state and local regulations that inhibit the deployment of broadband in MTEs. Some jurisdictions have franchising and other rules that make it hard for a smaller competitor to try to serve only MTEs or parts of markets.
  • It asks if the FCC should prohibit exclusive marketing and bulk billing arrangements by ISPs.
  • It asks if the FCC should prohibit revenue sharing and exclusive wiring arrangements with ISPs.
  • It asks if there are other kinds on non-contractual practices that should be prohibited or regulated.

The NOI is interesting in that it tackles all of the topics that the FCC left untouched in 2008. When that order came out I remember thinking about all of the loopholes the FCC had left available to ISPs that wanted to maintain an exclusive arrangement with apartment owners. For example, bulk billing arrangements are where a landlord buys wholesale connections from an ISP and then includes broadband or cable TV as part of the rent, at a mark-up. Landlords under such arrangements are unlikely to allow in another competitor since they are profiting from the exclusive arrangement. The FCC at the time didn’t feel ready to tackle the issues associated with regulating landlord behavior.

The NOI asks for comments on the non-contractual issues that prohibit competition. I’ve seen many such practices in the marketplace. For instance, a landlord may tell tenants that they are pro-competition and that they allow access to multiple ISPs, but then charge exorbitant fees to ISPs for gaining access to buildings or for wanting to collocate electronics or to run wiring. I can think of dozens of different roadblocks that I’ve seen that effectively keep out competitors.

I am heartened a bit by this docket in that it’s the first thing this new FCC has done to solve a problem. Most of the work they’ve done so far is to dismantle old rules to reduce regulation. There is nothing wrong with that in general and I have my own long shopping list of regulations that are out of date or unnecessary. But there are industry issues like this one where regulation is the only way to provide a needed fix to a problem. It’s clear that large ISPs and many landlords have no interest in bringing competition to their buildings. And if that is a goal that the FCC wants to foster, then they are going to have to create the necessary regulations to make it happen – even if they prefer to not regulate.