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AT&T Argues for Broadband Reform

Ed Gillespie, the Senior Executive Vice President of External & Legislative Affairs at AT&T posted a policy position on the AT&T website that argues for major policy reform to better bring broadband to low-income homes and rural areas.

It’s hard for any broadband advocate to not agree with the suggestions Mr. Gillespie is making:

  • He wants Congress to finish funding the new FCC mapping program to identify homes without access to broadband.
  • He supports additional broadband grant funding for programs like the $20 billion RDOF grants.
  • He supports Lifeline reform and says that it should be as easy for low-income homes to apply a Lifeline discount as it is to use a card to buy food from the SNAP program.
  • He thinks funding should be increased for the Lifeline program and should be funded by Congress rather than funded through a 26% tax on interstate telephony.

I hope AT&T is serious about these proposals because having them lobby for these ideas would help to move the needle on digital inclusion. It’s just odd to see these positions from AT&T since they have spent a lot of effort and dollars arguing against some of these policies.

Mr. Gillespie complains that a lot of the current $9.25 Lifeline discount program is used by MVNOs and other carriers that have not built networks. That’s an ironic argument for AT&T to make since the company has done it’s best to walk away from the Lifeline program. AT&T no longer offers Lifeline in 14 states – AL, AR, FL, IN, KS, KY, LA, MS, NC, NV, SC, TN, and WI. AT&T still participates in Lifeline in 6 states, but only because those states refuse to allow the company to exit the Lifeline program.

Of course, this would not be an AT&T policy paper if the company didn’t pat itself on the back a bit. Mr. Gillespie brags that the ISP networks in the country weathered the big increase in web traffic due to the pandemic even though predictions were made that networks would collapse. He claims that AT&T made it through the pandemic due to light touch regulation. The fact is, once it was understood that the new traffic on the web was coming during the daytime when the network wasn’t busy, I don’t know any network engineer who thought that the web would collapse. I also wonder why AT&T would claim to have weathered the pandemic well – I would challenge AT&T to bring forth happy customers using AT&T DSL and ask for their testimonials on how the AT&T network enabled multiple people to work from home at the same time.

Mr. Gillespie is also calling for an expansion of the concepts used in the RDOF grants. Those grants provide funding for new broadband networks in rural areas that have the worse broadband. Before supporting an expansion of that grant program, I think many of us are holding judgment on the RDOF reverse auction process. While I think it’s likely that there will be beneficial grants given to those willing to build rural fiber networks, I also fear that a huge amount of these grants are going to be wasted on satellite broadband or other technologies that don’t bring rural broadband in line with urban broadband. I’m not ready to bless that grant program until we see how the reverse auction allocates money. I also can’t help being suspicious that AT&T’s position in favor of more grants reflects a hope to win billions of new grant dollars.

Interestingly, even though he never says it, the reforms that Mr. Gillespie is asking for require new broadband regulation. I’m sure that Mr. Gillespie must realize that bills needed from Congress for these reforms are not likely to stop with just AT&T’s wish list. We are long overdue for a new telecommunications act that brings broadband regulation in line with today’s reality. The last such law was passed at a time when people were flocking to AOL for dial-up access. It’s highly likely that new telecom legislation is going to go beyond what AT&T is calling for. It’s likely that new legislation will give some broadband regulating authority back to the FCC and will likely include some version of net neutrality. It’s ironic to see arguments for a stronger FCC when the FCC walked away from regulating broadband at the urging of AT&T and the other giant ISPs. Perhaps even AT&T knows it went too far with deregulation.

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Regulation - What is it Good For?

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.

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Regulation - What is it Good For?

What is Light-Touch Regulation?

One thing I’ve noticed recently is that a lot of people are climbing on board the idea of building better broadband to rural America. A lot of people seem to think that the FCC can somehow act to fix a lot of the shortcomings of rural broadband – but in doing so they have missed the entire point of what the FCC calls ‘light-touch’ regulation – because, from a practical perspective, broadband is not regulated at all.

It’s not hard to understand why people would misunderstand the situation, because ‘light-touch regulation’ is one of those euphemisms that governments invent to disguise what they are really doing. Chairman Pai at the FCC never misses an opportunity to talk about his regime of light-touch regulation. I have to wonder if there would be as much support for the light-touch regulation if that phrase was replaced with the simpler and more descriptive phrase ‘deregulated’. I suspect a lot of people would be uncomfortable that one of our largest industries is largely deregulated.

The FCC pulled off this huge change by hiding the deregulation inside of their move to undo net neutrality. The FCC didn’t just reverse the net neutrality rules put into place by the previous FCC, they killed Title II regulation – which is the authority given to the FCC by Congress to regulate ISPs as common carriers. The FCC gave up Title II authority and gave the tiny remaining vestiges of broadband regulation to the Federal Trade Commission – even though the FTC is not a regulatory agency. The FTC doesn’t create or enforce new rules – they are more like corporate police that fine corporations when they’ve abused their customers too egregiously.

What does it mean to give up Title II authority? The FCC can no longer judge, or even track broadband prices. ISPs are free to raise rates to any level they want and make any profits they want. There hasn’t been an FCC since the dawn of the broadband industry that has invoked price regulation – but the fact that they could always acted as a brake on bad ISP behavior.

The FCC can no longer intervene in disputes between ISPs or with their biggest customers. Under Title II regulation, the FCC could decide if an ISP was fairly dealing with Netflix or some other large user of broadband. When Title II regulation was killed, the FCC stopped acting as the arbiter in industry disputes – ISPs are free to act in any way they want.

The FCC can’t even intervene when ISPs abuse customers. I recently wrote about the FCC complaint process. Before the end of Title II regulation, ISPs would try to resolve issues raised during the complaint process. The FCC had the authority to make ISPs treat customers fairly if they decided to exercise it – and it was the threat of the FCC creating new rules that made ISPs willing to curb some of their worst behavior. But now the FCC is nothing more than a gatekeeper – they lamely pass on consumer complaints to ISPs, which the ISPs largely toss into the wastebasket since the FCC no longer has any regulatory teeth.

It’s not completely fair to say that ISPs are 100% deregulated because there are a few areas of regulation that were not created under Title II authority that are still in place. For example, the Patriot Act created the requirement that ISPs have to allow federal law enforcement to be able to ‘wiretap’ broadband connections in the same way they used to wiretap telephone connections. The FCC can’t shed that responsibility and so they still enforce the CALEA rules that require ISPs to respond to subpoenas.

There are also various types of privacy and billing rules that were the result of other acts by Congress, and the FCC still oversees these remaining vestiges of regulation. As an example, the whole recent controversy over removing Section 230 protections for online companies like Twitter also applies to ISPs and is enforced by the FCC.

But the core basis for FCC regulation of ISPs was due to the fact that ISPs are common carriers, similar to telephone companies or cellular carriers. ISPs provide a two-way communications path with customers, and it is that basic function that justified regulating them under Title II regulations.

The FCC undertook one of the most bizarre steps in regulatory history when their voluntarily neutered themselves as broadband regulators. They no longer have the authority to force the big telcos to provide better rural broadband. They no longer have the authority to stop an ISP from raising rates to the point of unaffordability. They no longer even have the power to stop an ISP from billing customers for non-existent products. This is all easy to remember if you replace the term light-touch regulation with unregulated.

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Regulation - What is it Good For?

The FCC’s 15th Annual Broadband Deployment Report

The FCC just released its most recent annual report on the state of US broadband. This report is mandated by Section 706 of the Telecommunications Act of 1996 which requires the FCC to “determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion”. The FCC concludes in this latest report that broadband deployment is reasonable and that actions taken by this Commission are helping to close the broadband gap.

I take exception to several findings in this latest report. First, everybody in the country now understands that the FCC’s conclusions are based upon dreadfully inaccurate 477 data reported by ISPs. There have been numerous studies undertaken at the state and local levels that show that the FCC maps undercount households without broadband. Even USTelecom, the group mostly representing the largest telcos showed that the FCC maps in Missouri and Virginia classified 38% of rural homes as being served when in fact they were unserved. Microsoft has been gathering credible data showing that well over 150 million homes aren’t connecting at the FCC’s defined broadband speed of 25/3 Mbps.

For the FCC to draw any conclusions based upon inaccurate 477 data is ridiculous. A few years ago the FCC could have claimed to not understand the extent to which their data is flawed, but they’ve been shown extensive evidence that the 477 data is incredibly bad, and yet they still plowed forward in this report pretending that statistics based upon 477 data have any meaning. There is not one number in this report that has even the slightest amount of credibility and the FCC knows this.

With the knowledge that the FCC now has about the inaccuracy of their data, this FCC should have humbly admitted that they don’t know the number of households that don’t have broadband. The report could have discussed ways that the Commission is trying to fix the bad data and described steps they have taken to improve rural broadband. But for this report to lead off with a claim that the number of homes without broadband fell by 18% in 2018 is a joke – there is zero chance that’s an accurate statistic. This report should have stated that external analysis has shown that the state of broadband is a lot worse than what they’ve reported in prior annual reports.

I also take exception to the opening statement of the report where the FCC claims that its top goal is “closing the digital divide and bringing the educational, healthcare, social, and civic benefits of connectivity to all Americans seeking broadband access.” This FCC’s top goal is clearly to eliminate regulatory rules that create any obligations for the largest carriers. This FCC already completely deregulated broadband – something an agency would never do if their goal was to improve broadband access. Most of the major dockets that have been approved by this FCC have made it easier for the big carriers to deploy 5G or to otherwise avoid any regulatory burdens.

It’s insulting to the American people for the agency to state that their top goal is improving broadband when their actions show that their priorities are elsewhere. Regulatory agencies are not supposed to engage in propaganda, and this document reeks of self-promotion.

Finally, this report trots out the oft-repeated message that broadband is improving because of this FCC’s effort to remove barriers to broadband investment. I don’t think Chairman Pai makes a speech or writes an opinion that doesn’t bring up this disproved argument. We know by now that those without broadband fall into two categories – rural homes that don’t have access to a broadband connection and urban households that can’t afford broadband. The big telcos aren’t spending any of their cash to solve these two problems.

There has been a lot of fiber built in recent years. AT&T built fiber to pass 12 million homes as a condition for its merger with DirecTV – an effort the company announced was done this past summer. Verizon has been building fiber to bolster their cellular network, including an expansion of small cell sites – largely as a way to reduce their reliance on paying transport to others. These fiber efforts have nothing to do with the repeal of net neutrality and the ending of broadband regulation. Chairman Pai probably ought to cut back on making this claim, because his real legacy is that he’s emboldened the big cable companies to begin regularly increasing broadband rates since there’s no threat of regulatory oversight. Chairman Pai and his light-touch regulation will get the credit for why broadband costs $100 per month a few years from now.

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Regulation - What is it Good For?

What is ‘Light Touch’ Regulation?

The new FCC Commissioner Ajit Pai has made several speeches in the last month talking about returning to ‘light-touch regulation’ of the big ISPs. He is opposed to using Title II regulation to regulate ISPs and wants to return to what we had in place before that.

His argument is that the Internet has grown and thrived under the prior way that it was regulated. And he has a point – the Internet has largely been unregulated since its inception. And in many ways the industry has even received preferential regulatory treatment such as the way that Congress has repeatedly exempted broadband services from taxes.

It’s certainly hard to argue with the fact that the Internet has thrived. It’s a little harder to draw the conclusion that light regulation was the cause for this, as the Internet has primarily grown because people love the online content they find there.

But we are now at a different point in the broadband industry than we were when it was in its infancy. Consider the following:

  • The vast majority of homes now have broadband. While the industry is still adding customers there aren’t that many more households that can get broadband that don’t have it.
  • Look back just ten years ago and there was a lot more competition for broadband. In 2007 cable modems and DSL served roughly the same number of customers with similar products in terms of speed. But today cable broadband has become a near-monopoly in most markets.
  • One of the drivers towards implementing net neutrality was the explosive growth of video. Just a few years ago there were many reports of the big ISPs slowing down Netflix and other video traffic. The ISPs were trying to force video providers to pay a premium price to gain access to their networks.
  • While broadband prices have held reasonably stable for a decade, both the cable TV and voice products of the large ISPs are under fire and it’s widely expected that the ISPs will have to start raising broadband rates every year to meet earnings expectations.
  • The ISPs have changed a lot over the last decade and all of the big ones now own content and are no longer just ISPs. This gives them competitive leverage over other competitors.
  • The Internet has become a far more dangerous place for consumers. Hacking and viruses run rampant. And the ISPs and web services like Google and Facebook routinely gather data on consumers for marketing purposes.

I would be the first to agree that hands-off regulation probably contributed to the growth of the Internet. But this is no longer the same industry and it’s hard to think that any of the big ISPs or transport providers need any further protection. These are huge companies with big profits.

It seems to me that the Chairman’s use of the term ‘light-touch regulation’ is code for basically having no regulations at all. And since that was the state of the industry just a few years ago we don’t have to stretch the imagination very far to know what that means.

Before Title II regulation the FCC had almost no power over the big ISPs. The most they could do was to encourage them to do the right thing. Interestingly, in the two or three years leading up to the Title II order it was the threat of coming regulation that kept the ISPs in line more than anything else. The FCC tried to intercede in disputes between the ISPs and video providers and found that they had no leverage on the ISPs. The FCC also didn’t like data caps but they had no power to do anything about them. However, since the ISPs feared price regulation under Title II most of them raised data cap limits to defuse the public outcry over the issue.

So my recollection of the past five years is that it was the threat of coming regulation that kept the big ISPs in line. Because at the end of the day a big ISP could challenge the FCC on broadband issues in court and win every time. So the FCC’s best way to influence the ISPs was to hold the threat of regulation over their heads.

If we go back to that same regulatory place (which is what would happen if Title II is reversed) then there will no longer be any leverage at the FCC. ISPs will be free to do almost anything they want in the broadband arena. The FCC has already let them off the hook for consumer privacy, and that is just the beginning.

You can expect without regulation that the ISPs will do all of those things that net neutrality was supposed to protect against. They all say today that will never happen, and that they believe in the core tenets of net neutrality. But I think we all know that is public relations talk and that the big ISPs will pursue anything that will make them money. That means discriminating against traffic and demanding payments from video providers to get unimpeded broadcasts. It means the ISPs favoring their own content over content of others. And it means a return of price caps and broadband price increases with no fear of FCC intervention. I have a hard time thinking that ‘light-touch’ means anything other than ‘no-touch.’