AT&T Issues First Warning About Common Carrier Regulation

The great danger of the Federal Communications Commission's drive to regulate broadband access as a common carrier service is that it will choke off investment that is needed if we are to get the 100-Mbps network the FCC says it wants to see built.

Now AT&T has fired the first warning shot, saying it will reevaluate spending on its broadband access networks if the Federal Communications Commission decides to regulate broadband access as a common carrier service, the Wall Street Journal reports.

The warning can hardly come as a surprise. Both policy advocates and financial analysts already have warned that a capital strike is precisely what will happen if Title II regulations are imposed on broadband access.

"We would expect a profoundly negative impact on capital investment," warns Stanford Bernstein analyst Craig Moffett in a research note to clients.  "The only potential winners are the satellite providers, DirecTV and Dish Network, for whom incremental broadband regulation would dramatically reduce the risk of competitive foreclosure in the video business at the hands of bottleneck broadband providers," he says.

Former FCC Commissioner Harold Furchgott-Roth says the Federal Communications Commission's drive to reclassify broadband access as a common carrier service is "reckless" and "risky," will lead to a dampening of investment in networks, years of legal challenge and replaces an investment climate with a "casino" environment.

Of course, the drive to regulate broadband access as a common carrier service, despite being described as a targeted "third way" between unregulated information services and regulated common carrier services can be no such thing. The service either is an unregulated data service or it is a common carrier service under Title II. There is no permanent middle ground, as the FCC can later apply virtually any Title II common carrier obligations if it so desires, once the change is made.

In fact, the FCC's latest effort is the fourth time the FCC has launched inquiries into the status of information services, concluding three times before (Computer Inquiry I, II and III) that information or enhanced services are in fact to remain unregulated.

"The uncertainty the proposal creates will create a dampening effect on investment in the broadband business,"
says Furchgott-Roth, former FCC commissioner. Companies aren't sure what will happen and will delay
investment until there is certainty, he says.

If the FCC proceeds, and succeeds, "things will be tied up in courts for years an investors will gravitate to areas with greater certainty and opportunity for profit.

"There is a very clear correlation between certainty and investment," says Furchgott-Roth. "Unfortunately, both regulation and uncertainty is where we appear to be headed."

Some policy advocates will dismiss the AT&T threat as bluffing. "If this Title II regulation looks imminent, we have to reevaluate whether we put shovels in the ground," AT&T Chief Executive Randall Stephenson says, according to the Wall Street Journal.

AT&T could cut back spending on its U-Verse home television and Internet service, a move that would damage the FCC's other initiatives to spur more-rapid broadband adoption, at speeds up to 100 Mbps, for 100 million U.S. households.

U-verse service based on AT&T's fiber-to-curb archtiecture now is available to 24 million homes, and AT&T has a target of making it available to 30 million by the end of 2011. But AT&T warns that those plans could grind to a halt if common carrier changes the economics of fiber plant upgrades, which many observers believe is likely.

The reason is simple: common carrier regulation, even if touted as initially having a "light touch," would reverse decades of policymaking in the data services business and give the FCC ability to apply price regulations and wholesale obligations with mandatory pricing. The last time the FCC did that, in the wake of the Telecom Act of 1996, carriers put the brakes on new investment. In fact, Verizon did not begin its aggressive FiOS build until price controls were lifted.

Though the FCC says it won't invoke the most onerous Title II rules, such as regulating pricing, telecom companies worries that posture could be changed easily. And why wouldn't they?

"I'm a 3-2 vote away from the next guy coming in and saying I disagree with that, I take it away," Mr. Stephenson says.

If the FCC is counting on private capital to build the 100-Mbps new networks, and it is, then the drive to impose common carrier regulations virtually everyone expects will dry up investment is an unwise move. Whether the FCC understands this any better than it did in 1996 is questionable.