Posted on 12/Nov/2015
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The FCC’s decision to adopt utility-style regulation to the Internet is resulting in less investment and reduced deployment and it will inevitably lead to less robust competition in the broadband market, argues Brendan Carr, legal advisor to FCC Commissioner Ajit Pai.


The Digital Post: You suggested that the FCC decision to reclassify broadband as a utility could undermine the US telecom success story. What are the main negative consequences?

Brendan Carr: The FCC’s decision to apply heavy-handed, utility-style regulation to the Internet is putting the U.S.’s success story at risk. It is already leading broadband providers to cut back on their investments and put off network upgrades that would have brought faster speeds and more reliable broadband to consumers.

And the decision to put the U.S.’s success at risk was an entirely unnecessary one. In the 1990s, American policymakers decided on a bipartisan basis that the Internet should develop unfettered by government regulation.

Regulators applied a light-touch regulatory framework that led to unparalleled levels of investment and, in turn, innovation.The private sector spent $1.3 trillion over the past 15 years to deploy broadband infrastructure in the U.S. That level of investment compares very favorably when you look at the International context.

A study of 2011 and 2012 data shows that wireless providers in the U.S. invested twice as much per person as their counterparts in Europe ($110 per person compared to $55). And the story is the same on the wireline side, with U.S. providers investing more than twice those in Europe ($562 per household versus $244).

Consumers benefited immensely from all of that investment. On the wireless side, 97% of Americans have access to three or more facilities-based providers. More than 98% of Americans now have access to 4G LTE. Network speeds are 30% faster in the U.S. than in Europe.

The story is similar on the wireline side: 82% of Americans and 48% of rural Americans have access to 25 Mbps broadband speeds, but those figures are only 54% and 12% in Europe, according to a 2014 study that looked at 2011 and 2012 data. And in the U.S., broadband providers deploy fiber to the premises about twice as often as they do in Europe (23% versus 12%).

Facilities-based intermodal competition is also thriving with telephone, cable, mobile, satellite, fixed wireless, and other Internet service providers competing vigorously against each other.

But unfortunately, the U.S. is now putting all of this success at risk. At the beginning of 2015, the FCC decided to apply public-utility-style regulation to the Internet over the objections of two FCC Commissioners.

I fear that we are already seeing the results of that decision. Capital expenditures by the largest wireline broadband providers plunged 12% in the first half of 2015, compared to the first half of 2014. The decline among all major broadband providers was 8%. This decrease represents billions of dollars in lost investment and tens of thousands of lost jobs.

And the decline in broadband investment is not limited to the U.S.’s largest providers. Many of the nation’s smallest broadband providers have already cut back on their investments and deployment. Take KWISP Internet, a provider serving 475 customers in rural Illinois.

KWISP told the Commission that, because of the agency’s decision to impose utility-style regulation, it was delaying network improvements that would have upgraded customers from 3 Mbps to 20 Mbps service and capacity upgrades that would have reduced congestion.

These and many more examples all point to the same conclusion. The FCC’s decision to adopt heavy-handed Internet regulation is resulting in less investment and reduced deployment. It will inevitably lead to less robust competition in the broadband market and a worse experience for U.S. broadband users.

But I am optimistic that the U.S. will ultimately return to the successful, light-touch approach to the Internet that spurred massive investments in our broadband infrastructure. Efforts are underway in both the courts and Congress to reverse the FCC’s decision. And following next year’s presidential election, the composition of the FCC could be substantially different than it is today.


The Digital Post: What is your opinion about the Net Neutrality legislation due to be adopted by the EU? What are the main differences with the Open Internet order?

Brendan Carr: I think the FCC’s decision to adopt utility-style regulation should serve as a cautionary tale for regulators that are examining this issue. FCC Commissioner Ajit Pai, who I work for, has described the FCC’s decision as a solution that won’t work to a problem that doesn’t exist.

When the FCC acted, its rulemaking record was replete with evidence that utility-style regulation would slow investment and innovation in the broadband networks. And the evidence on the other side of the ledger? Non-existent.

Net Neutrality activists have trotted out a parade of horribles and hypothesized harms, but there was no evidence whatsoever of systemic market failure. The FCC adopted utility-style regulations even though it presented no evidence that the Internet is broken or in need of increased government regulation.

In the absence of any market failure, consumers are far better served by policies that promote competition. Utility-style regulation heads in the opposition direction—it imposes substantial new costs on broadband providers and makes it harder for competitors, particularly smaller broadband providers, to compete in the marketplace. After all, rules designed to regulate a monopoly will inevitably push the market toward a monopoly


The Digital Post: Next year the European Commission will propose a major revision of the EU current framework on telecoms. From your perspective what should be the priorities?

Brendan Carr: When I met with government officials and industry stakeholders in Brussels, one point kept coming up: the need to increase investment in Europe’s broadband markets. And I agree that embracing policies that will spur greater broadband investment is a key priority. According to a Boston Consulting Group report that just came out, Europe will need an additional €106 billion to meet its Digital Agenda goals.

Historically, the U.S. embraced a number of policies that led to massive investments in broadband networks. For one, U.S. regulators embraced facilities-based competition. We rejected the notion that the broadband market was a natural monopoly.

Therefore, we pursued policies that encouraged broadband providers to build their own networks, rather than using their competitors’ infrastructure. For example, we eliminated mandatory unbundling obligations, which were skewing investment decisions and deterring network construction.

We also made it easier for facilities-based providers from previously distinct sectors to enter the broadband market and compete against each other.

For instance, by making it easier for telephone companies to enter the video market and cable companies to enter the voice market, we strengthened the business case for those carriers to upgrade their networks, since offering a triple-play bundle of video, broadband, and voice was critical to being able to compete successfully. Because of these policies, capital flowed into networks, and consumers benefited from better, faster, and more reliable broadband infrastructure.

We also took steps on the wireless side to promote investment and competition. We embraced a flexible use policy for wireless spectrum. Instead of mandating that a particular spectrum band be used with a specific type of wireless technology, the government left that choice to the private sector, which has a much better sense of consumer demand.

This enabled wireless networks in the U.S. to evolve with technology and to do so much more quickly than if operators had to obtain government sign-off each step of the way. Having license terms and conditions that are relatively consistent across spectrum bands has also made it easier for providers to invest in the mobile broadband marketplace.


The Digital Post: The EU is still grappling with a fragmented and somewhat rigid approach to spectrum, despite the efforts of the European Commission. What can Europe learn from the FCC policy on spectrum?

Brendan Carr: The FCC’s spectrum policies have led to a tremendous amount of innovation and investment in our wireless networks. I would like to highlight a few of those here.

First, the FCC has embraced a flexible use policy for wireless spectrum. Instead of mandating that a particular spectrum band be used with a specific type of wireless technology, the government left that choice to the private sector, which has a much better sense of consumer demand.

This has enabled wireless networks in the U.S. to evolve with technology and to do so much more quickly than if operators had to obtain government sign-off each step of the way. For instance, nearly 50% of all mobile connections in the U.S. are now 4G, whereas that figure is only 10% worldwide.

Second, the FCC makes spectrum bands available on a nationwide basis with relatively uniform license terms and build out obligations. So rather than auctioning licenses that cover only part of the country one year and then auctioning other licenses in another year, all of the licenses for a particular spectrum band are offered in the same auction.

This approach gives broadband operators greater certainty and helps them plan their deployments while minimizing transaction costs. It also makes it easier for operators to obtain handsets and other equipment that will operate on their spectrum bands. All of that ultimately means that consumers get access to the spectrum faster and at lower costs.

Third, the FCC tries to keep its eye on filling the spectrum pipeline. It takes years for new spectrum bands to be brought to market, and so waiting for consumer demand to increase before starting the process of allocating more spectrum for consumer use is not an efficient approach.

The U.S. has engaged in a continuous process of reallocating spectrum for mobile broadband. We auctioned AWS-1 spectrum in 2006, 700 MHz spectrum in 2008, 65 MHz of mid-band spectrum earlier this year, and we’re set to auction our 600 MHz spectrum in 2016. To date, our spectrum auctions have over $91 billion for the U.S. Treasury.

Fourth, the FCC has embraced policies that make it easier for operators to deploy their spectrum. One way we’ve done that is by adopting what the FCC calls “shot clocks.” These require state and local governments to act on an operator’s request to construct a new tower or add an antenna to an existing structure within a set period of time, say within 90 or 180 days.

Another step the FCC has taken is to streamline the process of obtaining the historic preservation and other approvals that are required when an operator deploys broadband infrastructure. Combined, these actions have allowed spectrum to be deployed faster and have meant that consumers get quicker access to new mobile broadband offerings.


photo credit: Eris Stassi
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