Carrier-of-Last-Resort Obligations

Earlier this month the U.S. District Court for the District of Columbia upheld FCC orders that still require large telcos to be the carrier-of-last-resort provider of telephone service for at least some of their service territory. The ruling is the result of appeals made by CenturyLink and AT&T that required them to provide telephone service to new rural households.

The idea of carrier of last resort has been part of the telephone industry for nearly as long as the FCC has been regulating the industry. The concept was a key component of spreading the telephone network to all corners of the country – the Congress and the early FCC understood that the whole country was better off if everybody was connected.

Over the years the FCC and various state regulatory commissions ruled that telcos had to make a reasonable effort to connect rural customers. Telcos always had the option to petition against adding customers in really hard to reach places like mountaintops, but for the most part telcos routinely added new homes to the telephone network.

Carrier-of-last-resort started to weaken with the introduction of competition from the Telecommunications Act of 1996. Since that time the big telcos have been able to walk away from carrier-of-last-resort obligations in most of their territory. This court order ruled that in areas where the telcos are still receiving federal high cost support that the telcos are still obligated to connect homes that request service.

I worked for Ma Bell pre-divestiture and there was a real pride in the telephone industry that the network reached out to everybody. Telcos then also deployed huge numbers of pay telephones throughout the network to reach those that couldn’t afford phone service – even though they lost money on many of the payphones. The Bell company and the smaller independent telcos made it their mission to extend the network to everybody.

This order made a few comments, though, that puzzled me. They point out that many of the high-cost areas served by the big telcos are up for new funding from the upcoming CAF II auctions. Any winners of that auction are required to file to become the Eligible Telecommunications Carrier (ETC) for any areas they receive funding. The discussion in the court order implies that these new ETCs will become the carrier-of-last-resort in these areas.

That surprised me because there are plenty of carriers that have ETC status and yet are not the obligated carrier-of-last-resort. The best example is the same big telcos examined in this case who are the ETC of record for their whole footprints but now only have carrier-of-last-resort obligations for the last most rural areas covered by this case. There have been stories for years of people who built new homes, even in urban areas, and are refused service by both the telco and cable company. The cable companies have no carrier-of-last-resort obligations, but it’s clear that in many places the telcos have been able to walk away from the obligation.

I think that companies seeking the CAF II reverse auction funding might be surprised by this interpretation of the rules. Being carrier-of-last-resort means that a carrier is obligated to build to reach anybody in the covered area that requests telephone service. The reverse auction doesn’t even require total coverage of the covered census blocks and that seems to be in conflict with the court’s interpretation. The reverse auction census blocks are some of the most sparsely populated areas of the country and building to even one remote customer in some of these areas could be extremely expensive.

Unfortunately, the carrier-of-last-resort obligation only applies to telephone service and not to broadband. It would be nice to see this concept applied to broadband and the FCC missed a good opportunity to do this when they handed out billions of federal dollars in the CAF II plan. With that plan the big telcos are only required to make their best effort to reach customers with broadband in the areas that got the CAF II funding – I’m hearing from rural people all over the country that a lot of the CAF II areas aren’t seeing any upgrades. For the most part the idea of carrier-of-last resort and universal coverage are becoming quaint concepts of our past.

The Dawson Internet Act of 2018

A few days ago I wrote that we are not likely to get any significant telecom legislation this year. That’s unfortunate because we really need a major new Act to update all of the regulatory rules concerning broadband, telephone and cable TV. That got me thinking what I might write into such an act if I was the author, so following are the highlights of the envisioned Dawson Internet Act of 2018 (it’s time we stop calling this the telecom industry):

Cable TV. It’s time to scrap all requirements that dictate cable tiers. Cable companies need to be able to offer whatever channels they think make economic sense, including offering a la carte channels, if that’s what the public wants. I’d also scrap the must-carry rules for major network stations. The retransmission costs for those channels are one of the primary culprits for rate increases and removing the requirement to carry channels will return cable companies to a position of fair bargaining for price since they could walk away from any local station that wants too much.

Telephone. Other than a few rules that govern customer privacy I’d totally scrap federal regulations for landline service. I’d eliminate the CLEC classification and deregulate traditional telephone and VoIP equally to put the products on a non-regulated level playing field. I think I would retain the historic monopoly service territories, although I’d have to give that a lot more thought.

Interconnection. I’d keep the mandate that network owners must continue to interconnect with other carriers. They can’t be allowed to shut out a competitor by refusing to give them access to the underlying backhaul networks. But since I would eliminate the CLEC status, the big network owners need to be required to interconnect with anybody who meets specified technical standards.

ETC Status. Today a company must become an Eligible Telecommunications Carrier in order to participate in Universal Service Funds or other federal funding programs. I’d eliminate this requirement because it’s nothing more than a paperwork barrier to market entry. The current rules also disallow certain types of providers, such as owners of open access networks, although customers almost universally prefer that operating model.

Broadband. The FCC needs to regulate broadband, even if they elect to regulate it lightly. Congress can mandate this and get rid of the nonsense of trying to make broadband fit under Title II and just explicitly give the FCC the authority and obligation to regulate it.

Network Neutrality. I would make network neutrality the centerpiece of broadband regulation. The most important aspect of network neutrality is prohibiting paid prioritization – because once the ISPs start doing that all of the nightmare scenarios of a broken Internet emerge.

Spectrum. I think the FCC is already on a good path to free up spectrum for broadband. But I think they are missing the boat by not providing more spectrum for public access. One only has to look at the huge economic boom created by WiFi to see that giving all spectrum to big monopolies is not the best answer. I’d also make a firmer use-it-or-lose it rule for rural spectrum. A huge amount of spectrum sits unused in rural America but is still under control of the big carriers who purchased large-area licenses. Finally, rather than turn spectrum auction proceeds over the US Treasury I’d redirect these revenues towards meeting universal service goals.

Universal Service. I’d maintain the requirement that the FCC monitor broadband connectivity and require them to try to find solutions for areas without good broadband. I’d also prohibit them from funding any broadband programs like CAF II that support technologies that are slower than the federal definition of broadband. I’d also mandate an ongoing process for defining the official speed of broadband.

Privacy. I like what I’m reading about the European Union privacy rules. They are allowing ISPs and others to monitor and track customers only with customer consent. That will allow people who care about privacy to maintain it while allowing others who choose to sacrifice privacy for services to allow tracking. The penalties for violating customer privacy must be economically severe.

Municipal Broadband. I’d eliminate all barriers to municipal competition. Local communities ought to be able to decide themselves if they want to tackle the risk of building broadband. This is particularly needed in rural America where, in many cases, the local government might be the only one willing to tackle funding a network.

Access to Poles, Ducts and Dark Fiber. I’d make these assets available to anybody that can meet technical standards to use them. I’ve still not decided how I feel about federal one-touch rules, but I’d have the FCC institute a major rulemaking to get more facts on the issues involved.

I’m sure everybody in the industry has a different list than mine. I remember all of the discussions and negotiations leading up to the Telecommunications Act. That Act took  some political bravery since Congress was taking on the big telcos for the greater public good – and that Act did a fairly good job of promoting competition. But I don’t see this same courage in Washington today and most of the topics on my list are sadly not even being discussed.