Squelching Competition

Bell_logo_1969I doubt that many people outside of the broadband industry understand how good the large incumbent cable companies and telcos are at squelching competition. They have a whole arsenal of strategies to make it hard for somebody small to compete against them.

There is no better example of this than the very successful war that these big companies have waged against municipal broadband. I’m not entirely sure why they have singled out municipalities other than they are somewhat of an easy target. Certainly the actions of the incumbents against cities is far out of proportion to the actual threat. On a nationwide basis the amount of competition from municipalities is miniscule. Following are just a few of the strategies they have used against municipalities:

Creating Laws to Prohibit or Curtail Muni Competition. There are now 23 states that have some kind of prohibition or major restriction against broadband competition. Many of these laws have been written by the incumbents and have been passed due to heavy lobbying and political contributions given by the incumbent providers.

Every year there are attempts to pass new restrictions, often using template language developed by ALEC (American Legislative Exchange Council). This group’s authors suggested statutes that benefit their corporate sponsors and in the broadband area they seem to focus on municipal competition. The FCC recently overturned some restrictive anti-muni state laws in Tennessee and North Carolina. The incumbents urged those states to appeal the FCC order, and even before the appeals have been decided in court those states are trying to pass new laws to replace the ones that were overturned.

Lawsuits or Threats of Lawsuits. I can’t recall a lawsuit where the incumbents have been successful in keeping a city out of the broadband business. But lawsuits are great delaying tactics and can cost a lot of money to defend. Lafayette, Louisiana for example was sued several times before it was able to float bonds to build its broadband network. Lexington, Kentucky was recently sued and they hadn’t even yet found a broadband partner. But lawsuits are a very effective threat and I know cities that have decided not to tackle broadband due to the fear of facing costly suits.

Constant Bad Press. The incumbents sponsor a never-ending barrage of whitepapers and policy research papers that demonstrate that municipal broadband does not work and is a failure. I can think of half a dozen such papers that have attacked Lafayette since they have been in business.

The problem with these papers is that they are full of lies and inaccuracies. While there have been a few municipal failures with broadband networks, most of the operating muni networks are happy with their results and are covering their costs of operations while bringing true competition to their community. The main purpose of these papers is to persuade politicians that muni broadband is a failure – even when it is not.

The anti-competitive tactics aren’t just used against municipalities. Any CLEC that has to interface with a large telco network can recite a long string of stories of how difficult the big companies make it for them to operate. Something as simple as ordering a new circuit or connecting with incumbents can take forever and can cost far more than its worth. The big telcos began almost immediately after the Telecommunications Act of 1996 to make the prescribed processes as non-functional as possible. The intransigence of the large telcos contributed to driving some CLECs out of business.

Even very large competitors are not immune to the delays that the big monopolies can throw at them. The issues that Google is having in California in getting access to poles shows that even big commercial companies are not immune from the tactics of the telcos and the cable companies to keep them out of their markets for as long as possible.

It’s hard and expensive to fight the incumbents. This short blog barely touches the many tactics they use to thwart competition. They have flocks of lobbyists in DC and at the state level. They make big political contributions and have many allies from statehouses down to city councils. And they don’t seem boldly lie if that might convince a politician to vote their way. There is no question that they are a formidable foe and have proven very good at protecting their monopoly and duopoly markets.

Reauthorizing the FCC

FCC_New_LogoSenator John Thune (republican from South Dakota and head of the Senate Commerce Committee) has introduced a reauthorization bill for the FCC. This hasn’t been done at the FCC for nearly 25 years but is a routine process for most federal agencies. The authorization bill would reestablish a fresh basis for how the FCC operates and is funded. As long as controversial riders don’t get attached such as trying to undo net neutrality or something similar, the bill ought to sail through Congress and get signed by the president.

The reauthorization is only for two years, which signals Congress’s intent to tackle a new telecommunications act in the near future. Here are a few things the bill will do if passed:

Examine FCC Regulatory Fees. The FCC charges regulatory fees and the bill would authorize the GAO to take a look at how those fees line up with the costs of running the FCC. Since this hasn’t been examined in a long time it’s easy to imagine fees being added, deleted, or modified to bring the fees in line with current activity and costs of running the FCC.

The FCC charges a number of different kinds of fees. For instance there are fees for processing applications for equipment approval, tariff filings, antenna site registration and other similar functions. The FCC also charges a host of annual regulatory fees to cable television systems, wireless carriers, satellite providers, interstate telco providers, media companies and submarine cable network owners. The agency also charges fees to participate in spectrum auctions.

Protects E-Rate Funding. The bill would shield E-Rate payments made to schools and libraries from being lowered due to any other government funding action, such as last year’s sequester.

Changes FCC Transparency Practices. The Commerce committee oversees a number of other government agencies such as the Consumer Product Safety Commission, the Surface Transportation Board, and the Federal Energy Regulatory Commission. Over the last decade those agencies have had changes in how documents at the agencies are made public and how they report to Congress. The FCC is the only agency that has not been subject to these transparency best practices. However, earlier this year the FCC started to voluntarily make some of these changes on their own.

Clarifies USF Support Rules. In 2004 the USF Joint Board recommended that a household only count for calculating universal service funding one time. This means that a household can’t count for calculating a subsidy for both a wireline and a wireless connection. Congress has been renewing this requirement in the annual funding appropriation for the FCC every year since then and this would codify that restriction to be permanent.

Clarifies Terms of Office for Commissioners. The bill would allow a Commissioner to stay in office after their 5-year term until a successor has been appointed. This has sometimes been done in practice, but this would make this a permanent rule.

Continues Funding for Spectrum Auctions. The bill assures that the FCC will be sufficiently funded to operate spectrum auctions, which often brings in huge revenues to the general government coffers.

The bill is expected to be voted on in the Commerce Committee by the end of March. The danger between now and becoming a law is going to be the temptation of Republicans to use the bill as a way to change a few FCC rules that they don’t like. The two recent FCC rulings they most hate are net neutrality and the rules that ban states from restricting municipal participation in broadband. Both of those FCC rules are under appeal in federal courts, but a number of congressmen have never stopped publicly complaining against the rulings. If the bill gets riders that try to change those rulings it would probably be impossible to get a presidential signature since President Obama strongly supports both of those FCC rulings.

What I am Thankful for in 2015

ThanksgivingThanksgiving is upon us yet again and I’ve given some thought to those things in the industry and beyond that I am thankful for this year.

Net Neutrality: I am thankful for the net neutrality ruling, more as a consumer than as someone in the industry. From what I can see the largest ISPs and cellular companies had a big bag of nasty tricks waiting for all of us had it not passed. I feel like this ruling took back some of the power in the industry from the ISPs with the FCC as our watchdog. Now we need to wait a while more to see if the courts uphold the FCC. On the other hand, I am not so glad that net neutrality seems to have taken the Federal Trade Commission out of the picture for telecom. They were starting to take a hard look at monopoly abuses and one can hope the FCC will take up where they left off. There is some reassurance that the FTC says they will still play a role, but that role is clearly diminished.

Municipal Competition: I was glad to see the FCC tackle the prohibitions against municipal telecom. As somebody who works mostly with rural broadband issues, we need to encourage anybody, including cities and counties that are willing to tackle bringing broadband to rural places. I can understand why the large ISPs don’t want competition from municipal entities in big cities, but that still has not happened anywhere larger than Chattanooga and probably won’t. I have a harder time seeing why the large ISPs fight so vigorously against competition in rural areas where they don’t spend any capital to maintain their networks. These smaller communities are waking up to the fact that if they don’t take care of the broadband gap themselves that nobody else is likely to do so.

Inching Towards More Privacy: In this last year it became apparent to everybody that the NSA and a ton of commercial companies are spying on all of us. I love the parts of the industry that are taking the side of privacy. There’s Apple that is encrypting everything in a way that even they can’t decrypt. There’s a number of companies working on block chains and other forms of peer-to-peer communication that ought to be immune from snooping. And there are a number of web sites that now promise they aren’t tracking you. We have a long way to go, but it looks like people are starting to care about their privacy.

DOCSIS 3.1: I am thankful for technologies that are making broadband faster. The DOCSIS 3.1 technology that the cable companies are starting to implement will probably help the largest number of Americans get faster broadband. Several of the big cable companies are promising that they will offer faster speeds across the board. I think cable companies have finally awakened to the fact that it doesn’t cost them that much to give out more speed and it shelters them from the competition. And there s a slow but steady growth of fiber with companies like Google and CenturyLink leading the way. You will hear me whoopin’ and hollerin’ in this blog if somebody brings an affordable gigabit to my neighborhood.

Technology is Getting Better: The speed at which technology in and near the industry is improving is mind boggling. It seems like I hear about something new almost every day. This year saw 10 gigabit fiber terminals that are cheap enough for home and small business use. We’ve seen a plethora of improvements in OTT boxes like Roku and the gaming systems. 4K video has made it into the mainstream conversation in the last year. The speed and processing power of cellphones has literally doubled in the last year.

And My Readers: This marks my third Thanksgiving with this blog and I don’t seem to be running out of topics. I am truly thankful that people read this from time to time. I started writing this blog as a way to force myself to stay up with current events in the industry and it has done that in spades. I seem to learn something new every day, and for that I am most thankful.

What Does the FCC Municipal Ruling Really Mean?

Scales-Of-Justice-12987500-300x300On the same day that the FCC passed its new net neutrality rules it also granted the petitions of Chattanooga TN and Wilson NC to allow them to expand their broadband networks. In both of these petitions the municipal network is surrounded by areas with poor or zero broadband, and residents of the area have been asking the two cities to extend their fiber network to serve them. But in both cases there were state laws that restricted the systems from expanding.

On the surface, the FCC ruling is only about these two specific cases, but the FCC has made it clear that they will entertain petitions by other jurisdictions that are being restricted by state laws. FCC Chairman Wheeler said in the ruling that there are several ‘irrefutable truths’ about broadband: “One is, you can’t say that you’re for broadband and then turn around and endorse limits on who can offer it. Another is that you can’t say, I want to follow the explicit instructions of Congress to remove barriers to infrastructure investment, but endorse barriers on infrastructure investment. You can’t say you’re for competition but deny local elected officials the right to offer competitive choices.”

While this ruling obviously gives great hope to many communities that don’t have broadband, there is still a long way to go until this ruling makes any practical difference in the market. There are already several parties that say they are going to challenge the ruling in court, so this issue will have to slog its way through the legal process before it goes into effect. The primary issue for a challenge is the FCC’s authority to overturn state restrictions on broadband.

The FCC is relying on language passed by Congress as part of the Telecommunications Act of 1996. In that law, section 706 of the Act says the following:

SEC. 706. ADVANCED TELECOMMUNICATIONS INCENTIVES.

(a) IN GENERAL-The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.

Further, Section 253 of the Act also included language that that bars states from enacting laws that prohibited ‘any entity’ from providing any interstate or intrastate telecommunications service. I’ve read that language from the Act a number of times and it certainly, on the surface, seems to give the FCC the authority to override the telecom laws in North Carolina and Tennessee that stopped the municipal systems from expanding. I’ve chatted with a few of the legislators over the years that helped to write the Telecom Act and they believed that when they wrote the Act that they were enabling municipal competition.

But as is often the case, a law that Congress passes isn’t fully effective until it’s been tested in court. In this case there have been two prior challenges to the law. A year after the passage of the Act, the City of Abilene challenged the Texas law that was a flat ban on municipal competition in the state, and lost before the FCC and then on appeal to the federal Court of Appeals for the DC Circuit. In 1997, Missouri also banned public entities from providing telecom services. Cities in the state challenged this at the FCC, lost and then appealed to the Eighth Circuit Court of Appeals, which unanimously ruled in cities’ favor. The Supreme Court took the case and let the Missouri law stand.

But the current cases are different than the two prior challenges. Both of those cases challenged an outright ban to competition. But in the new cases, the cities asked to be relieved from specific restrictions that stopped them from expanding their existing service beyond a defined footprint. In Tennessee, the City of Chattanooga is restricted to offering broadband in the same area where they serve electric customers. In Wilson, the City is restricted to the City boundaries. In both cases there are nearby customers just outside of those boundaries that each city wants to serve, and the ruling gives them the right to expand.

So this is going to be up to the courts to decide. Certainly one thing has changed since those two earlier rulings in that the FCC is now in favor of overturning states’ rights. In the earlier cases the FCC ruled against the petitioners, and so the courts started with that refusal in judging the cases. These kinds of cases usually boil down to whether the FCC has the authority to rule, which is not exactly the same thing as ruling about whether the challenger to the law was right or wrong. In the last challenges the courts said that the FCC had the authority to deny the municipal petitions. This time any challenges will begin with an FCC ruling in favor of the cities and we’ll just have to wait and see if that makes any difference in the courts.