Regulatory Pendulum Swings: But Which Way?

In the telecommunications business, the regulatory pendulum swings all the time, though slowly. So periods of relatively less-active regulation are followed by periods of relatively more active rule-making, then again followed by periods of deregulation.

It has been apparent for a couple of years that the regulatory pendulum in the the U.S. telecom arena was swinging towards more regulation.

What now is unclear, though, is whether such new rules will largely revolve around consumer protection and copyright or might extend further into fundamental business practices.

Current Federal Communications Commission inquiries into wireless handset subsidies and contract bundling, application of wireline Internet policies to service wireless providers, as well as the creation of new "network neutrality" rules are examples.

But so will the settting of a national broadband policy likely result in more regulation. And there are some voices calling for regulating broadband access, which always has been viewed as a non-regulated data service, as a common carrier service.

One example is a recent speech given by Lawrence Strickling, National Telecommunications and Information Administration assistant secretary, to the Media Institute.

He said the United States faces "an increasingly urgent set of questions regarding the roles of the commercial sector, civil society, governments, and multi-stakeholder institutions in the very dynamic evolution of the Internet."

Strickling notes that “leaving the Internet alone” has been the nation’s Internet policy since the Internet was first commercialized in the mid-1990s. The primary government imperative then was just to get out of the way to encourage its growth.

"This was the right policy for the United States in the early stages of the Internet," Strickling said. "But that was then and this is now."

Policy isues have ben growing since 2001, he argued, namely privacy, security and copyright infringement. For that reason, "I don’t think any of you in this room really believe that we should leave the Internet alone," he said.

In a clear shift away from market-based operation, Strickling said the Internet has "no natural laws to guide it."

And Strickling pointed to security, copyright, peering and packet discrimination. So government has to get involved, he said, for NTIA particilarly on issues relating to "trust" for users on the Internet.

Those issues represent relatively minor new regulatory moves. But they are illustrative of the wider shift of government thinking. Of course, the question must be asked: how stable is the climate?
Generally speaking, changes of political party at the presidential level have directly affected the climate for telecom policy frameworks. And while a year ago it might have seemed likely that telecom policy was clearly headed for a much more intrusive policy regime, all that now is unclear.

A reasonable and informed person might have argued in November 2008 that "more regulation" was going to be a trend lasting a period of at least eight years, and probably longer, possibly decades.

None of that is certain any longer. All of which means the trend towards more regulation, though on the current agenda, is itself an unstable development. One might wonder whether it is going to last much longer.

That is not to say some issues, such as copyright protection or consumer protection from identity theft. for example, might not continue to get attention in any case. But the re-regulatory drift on much-larger questions, such as whether broadband is a data or common carrier service, or whether wireless and cable operators should be common carriers, might not continue along the same path.

You can make your own decision about whether those are good or bad things. The point is that presidential elections matter, and the outcome of the 2012 election no longer is certain.

FCC has No Current Authority to Impose Network Neutrality Rules?

The U.S. Federal Appeals Court reviewing whether the Federal Communications Commission currently has authority to create or enforce "network neutrality" rules has not yet ruled.

But initial questioning suggests the court questions whether the Federal Communications Commission has current jurisdiction to write, much less enforce, net-neutrality rules for the Internet. So some legal observers now suggest the appeals court will in fact rule that the FCC had not authority to sanction Comcast for the way it managed peer-to-peer services.

A 2008 FCC order forced Comcast to stop throttling BitTorrent applications as a means of managing network congestion.

U.S. Court of Appeals for the District of Columbia Circuit Jude Raymong Randolph pointed out to an FCC attorney that “you have yet to identify a specific statute.”

Since the Congress has passed no laws relating to network neutrality, the FCC had, and has, no authority to take action on the matter, the judge seems to suggest.

A ruling of that sort would at least temporarily delay any new efforts by the FCC to codify new network neutrality rules, and shift the battle over such rules to the Congress.

FCC Chairman Julius Genachowski has argued the agency has authority to set net neutrality rules because of the "Internet Freedoms Principles" set in 2005, which say that users have the right to use lawful applications, which P2P is, though the use of P2P sometimes includes transfers of copyrighted content without permission.

But Comcast argues it has the right to manage its network, which it interprets as permitting rate limiting of P2P services, when necessary to preserve user experience and relieve congestion.

To be sure, the specific issue at hand seems primarily about whether the FCC’s decision was improper for statutory reasons, as Congress has not given the FCC legislative permission to create such rules, observers say.

On a wider legislative front, some observers think the White House is dialing back its efforts to get "strong" network neutrality rules adopted. The evidence is indirect, but some point to the late-October resignation of of Susan Crawford, University of Michigan law professor, previously a key adviser to the president on technology and communications, and a proponent of "strong" network neutrality rules.

According to the American Spectator, Crawford's version of Net neutrality was too radical for White House economic adviser Lawrence Summers, contributing to her early departure. If that observation is correct, it would be a sign that any new rules would not strictly ban "every" form of packet prioritization.

Many observers note that quality of service measures typically are needed when users want to interact with important video or voice services, especially as video already has become the primary driver of bandwidth consumption on a global level.

Those observers also would note that strict versions of net neutrality, that would absolutely ban any packet prioritization, would prevent Internet access providers from applying prioritization on behalf of their users, even when those users might specifcially ask for, and desire, such prioritization.

"Packet discrimination" sounds bad, and is, when it is used as a business weapon, allowing unfair competition. But packet discrimination is a good thing when it helps maintain quality of experience for the emerging applications users say are important, especially video and voice.

Also, at the recent Consumer Electronics Show, White House deputy CTO Andrew McLaughlin said the FCC had yet to determine whether Net neutrality is needed to preserve the "open Internet."

If that seems unremarkable, consider that in 2009 McLaughlin had said network management practices of cable companies that limited the speeds of large file downloads were essentially the same thing as Chinese-style Internet censorship.

Management of bandwidth-heavy applications by some users at times of network congestion is not application "blocking" or censorship. It is an effort to maintain quality of service for most users. Some methods will be more palatable than others.

The analogy is access to the old voice network. Telcos do not "censor" speech when, at times of peak load, a user might encounter a "fast busy" signal indicating that no circuits are available. The point is that every network gets congested at least some of the time.

And it always has been recognized that some method of regulating access at such times is a legitimate network management matter. In fact, a fast busy tone does mean a user has temporarily been "blocked" from the network. Sometimes a mobile voice call experiences the same sort of temporary blocking.

That sort of access blocking is not any suppression of freedom of communication or expression. It is not an infringement of Internet freedom. It is a simple way of managing a congested resource at times of peak load.

The immediate matter at hand, though, is the simple matter of legislatively-granted authority. The appeals court seems to be signaling its belief that Congress has granted the FCC no authority to impose rules about network congerstion management or methods of doing so.

FCC Seeks Input on Transition to VoIP

The Federal Communications Commission wants public and industry comment on the policy framework for a transition from circuit-switched to voice services on all-IP networks. The FCC will use the comments to issue a possible "notice of inquiry" on the subject.

"In identifying the appropriate areas of inquiry, we seek to understand which policies and
regulatory structures may facilitate, and which may hinder, the efficient migration to an all IP world," the FCC says. "In addition, we seek to identify and understand what aspects of traditional policy frameworks are important to consider, address, and possibly modify in an effort to protect the public interest in an all-IP world."

Among other issues, the FCC will be looking at consumer protection issues such as how the needs of people with disabilities can be assured. A look at the role of "carrier of last resort" obligations in an all-IP framework also is expected.

All comments should refer to GN Docket Nos. 09-47, 09-51, and 09-137 and title comment filings
as “Comments – NBP Public Notice #25."
 
Filers using the Commission’s Electronic Comment Filing System should enter the following text in the “Custom Description” field in the “Document(s)” section of the ECFS filing page:  “Comments – NBP Public Notice # 25."

FCC to Look at Traffic Shaping

The Associated Press says the Federal Communications Commission will investigate complaints that Comcast Corp. actively interferes with Internet traffic as its subscribers try to share files online.

This should be very interesting. One one hand, there's an issue about packet blocking. On the other hand there is an issue of exposure to copyright law, since much peer-to-peer traffic that Comcast and others appear to be blocking infringes copyright laws.

A coalition of consumer groups and legal scholars asked the agency in November to stop Comcast from discriminating against certain types of data. Two groups also asked the FCC to fine Comcast at a rate of $195,000 for every affected subscriber.

It is possible there are two intertwined issues here: packet blocking and copyright violations. The former might be technologically necessary to prevent the latter.

FCC Reimposes Market Share Cap

The U.S. Federal Communications Commission has voted to impose a limit on the size cable operators can reach on a nationwide basis, limiting any single company from controlling more than 30 percent of total subscribers. The FCC in the past has maintained such a rule, but the limit was invalidated by a court decision in 2001.

Consumer groups say a strict limit on cable television system ownership is needed to prevent them from dominating television programming and Internet services and from blocking video competitors.

As a practical matter, the FCC action could affect merger deals Comcast Corp. would like to pull off, as Comcast already has about 27 percent. The rule might also affect smaller operators like Charter Communications and Cablevision , as it might rule out their acquisition by Comcast.

FCC Relaxes Cross Ownership Rules

By a vote of three to two, the U.S. Federal Communications Commission has approved a plan to relax media cross-ownership rules. The rule change, which comes amid opposition from some politicians, allows companies to own both newspapers and broadcast stations within a top-20 market. The rules originally were put into place to safeguard the "diversity of voices" within media markets.

Of course, the context was different then. There were three national networks and maybe one or two major newspapers in a market, with a fragmented radio audience. Since then, cable programming has exploded, with three 24-hour-a-day news channels and two 24-hour-a-day business national news channels available in most markets, and multiple local news channels in many major metro markets as well.

The daily newspaper business, meanwhile, has continued its inexorable, decades-long decline. Indeed, one can argue reasonably that the daily metro newspaper might not exist in the future, at all.

And on top of that we have the rise of blogs, Web news portals, podcasts, Webcasts and other media and news outlets.

Though there was not unanimity on the issue, one can argue that local media markets bear little resemblance to markets of the past, and are in transition to an even-more-different structure in the future.

The last time I looked, the major broadcast networks had become "entertainment focused" in the extreme. I can't even tell you how the "voice" of any of the five local national broadcast networks differs from any of the others. To the extent that the concern about "voices" explicitly is about "political" voices, there seems even less justification than there used to be for cross-ownership restrictions.

National broadcast TV networks don't seem to have any substantial differences of voice. Newspapers are on the way to extinction. Radio is highly fragmented. And then there are the cable news outlets, national and local, plus Web-based news and opinion portals and blogs too numerous to count.

As elsewhere, legacy rules are straining to keep pace with rapid changes in media, communications and information infrastructure.

CLECs Must Race Tide

Even though consumers now account for only about 22 percent of total incumbent telco revenue, and even though dominant telcos are losing share in that market, competitors in the business segment essentially are racing an incoming tide.

That tide is lost incumbent market share. At some point, regulators will decide the market leaders have lost enough share, and give incumbents more freedom to price and package their services, which inevitably will lead to higher wholesale rates for competitors that now rely on incumbent facilities--and wholesale discounts based on their market power--to build their businesses.

So the essential strategic task is to take share now, while it can be more easily gotten, knowing that competitive conditions will sharpen once the incumbents are more free to package and price. And that tide is coming in.

U.S. telcos continue to lose residential phone subscribers to both cable VoIP and wireless subscriptions at a steady seven to eight percent a year, according to Citigroup analyst Michael Rollins. Wireless is a lesser issue, as incumbents own a majority of that business, and simply must cope with product substitution. Wireless penetration should rise from an estimated 83 percent this year to 87 percent by the end of 2008.

Indeed, by 2010, wireless-only households should rise to 27 percent, from 13 percent last year and an estimated 17 percent this year, Rollins argues.

Cable VoIP penetration should jump from 10 percent last year and an estimated 14 percent this year to 25 percent by 2010. If the Federal Communications Commission sticks with precedent, that is going to be enough lost share to trigger an end to wholesale access policies favorable to CLECs.

If Rollins is right, those deregulation rules will start to trigger in just a couple of years. Of course, one can argue that market share losses in residential are not the same thing as losses in the business markets. But that hasn't stopped the FCC from deregulating in the past.

Ironically, incumbent market share loss is the very thing that will unleash them as more formidable competitors.

No Rate Deregulation in 6 Verizon Markets

The Federal Communications Commission had concluded that there is not sufficient competition in six Verizon markets to lift rules regulating special access pricing. Essentially, the FCC concluded that the level of competition in those markets did not approach the threshold set by market conditions in Omaha, Neb. at the point Qwest was allowed to deregulate its special access prices.

European Commission, FCC Disagree on Competition

As U.S. competitive local exchange carriers and cable companies await key decisions from the Federal Communications Commission, the quantitative tests of "effective competition" are key. And on that score the FCC and the European Commission do not see eye-to-eye. In the video arena, the FCC targets the 30-percent market capture level as denoting "effective competition." In the voice services area the test seems to be 20-percent share loss by incumbents. The EC doesn't even think 50-percent loss of market share by incumbents is sufficient.

The disparities in thinking about what marks "effective" levels of competition leaves at least some room for new thinking on what measures might be required to stimulate even more robust levels of competition. In mass markets, 30 percent quite often is the share held by the market leader.

$2.4 Billion CLEC Decision Near

Sometime between now and Dec. 5th, the Federal Communications Commission is slated to make decisions that could significantly raise wholesale access and transport tariffs in six markets, including Boston, New York, Philadelphia, Pittsburgh, Providence, and Virginia Beach.

Customers can anticipate an additional $2.4 billion in extra charges for communications services, according to a study by QSI Consulting, if the rules are relaxed.

Basically, Verizon argues that market competition in each of the six markets is equivalent to that found in the Omaha, Neb. market, the benchmark used by the Federal Communications Commission to deregulate wholesale access rules and rates that have been favorable to competitors.

Up to this point, competitors in the six markets have been able to buy wholesale access and transport at rates below “retail” special access rates. Should Verizon prevail, it would be free to raise prices as it sees fit, with the likely result that wholesale rates would rise to just about what the retail special access rates are.

QSI estimates increased telecommunications expenses incurred by consumers for retail mass market, enterprise, and broadband access services would be $1.054 million, $747 million, and $565 million.. This amounts to a rate increase of $114 annually for an average household, QSI says.

Users in New York would wind up paying as much as $1.4 billion extra. In Philadelphia costs could rise $345 million; $380 million in Boston; $104 million in Virginia Beach and $177 million in Pittsburgh.

Consumers would wind up paying as much as $1 billion more for services; enterprises $751 million and broadband access users $565 million.

Opponents of the plan tend to think they have done what is needed to make the FCC commissioners aware of how woefully undeveloped access competition is in the six markets. But one never knows.

“The concern is that though the numbers are clear, there are media issues also on commissioner minds,” says Covad VP Angela Simpson. The danger is that the forbearance issue might wind up being a bargaining chip as commissioners grapple with the broader media deregulation issues.

Cable Industry to Get Clipped by FCC

In a move that will limit business opportunities for Comcast and Time Warner Cable and help independent networks, the Federal Communications Commission is preparing to impose significant new regulations to open the cable television market to independent networks, after determining that cable operators are too dominant in the multichannel video entertainment market.

Satellite and telco competitors should benefit at least in part, as the new rules are expected to force cable-affiliated programming networks to sell their content to competitors at better rates.

The new rules essentially would prevent Comcast from acquiring any other system assets, and limit Time Warner Cable's ability to make large acquisitions, shutting off a revenue growth path for both firms.

One of the proposals under consideration by the commission would force the largest cable networks to be offered to the rivals of the big cable companies on an individual, rather than packaged, basis. Up to this point cable-affiliated programmers have used the "bundled" wholesale tactic to get wider carriage for niche networks that piggyback on the popularity of major networks. In other words, to get the "must have" channels, competing service providers have to buy the weaker networks as well.

The agency is also preparing to adopt a rule that would make it easier for independent programmers to lease access to cable channels. Cable operators oppose that measure because it reduces their control over scarce channel slots.

Though consumer advocates believe the rule changes will lead to lower prices, that might not happen. What might happen is that consumers will be able to buy more targeted channels and packages without the "buy through" requirements that typically result in viewers "paying" for scores of channels they don't want.

In all likelihood, the changes will benefit a small number of viewers that really are interested in just a few channels, or who do not want to buy sports programs. For most viewers, who watch eight to 12 channels fairly regularly, it likely still will make sense to buy a broad package.

ESPN and sports programming in general is a major reason cable prices have risen so much over the past couple of decades, so opting out of ESPN carriage is one way consumers might save some money. Conversely, the rule changes could be damaging to ESPN if any significant number of consumers they can live without it.

Open Network for 700 MHz?

It isn't clear whether the proposal will survive the inevitable challenges from established carriers who won't like the idea, but Federal Communications Commission Chairman Kevin Martin is said to be ready to propose an unusually "open" license for valuable 700 MHz spectrum being vacated by TV stations as they go digital.

Under Martin's proposal, mobile services in these airwaves would have to use of any compliant device and any application, with no restrictions, so long as the application is legal and doesn't harm the network.

As a platform for innovation, the new network would rival the Internet itself, moving far beyond "unlocked" phones and resembling nothing so much as a mobile version of the Internet, where any device can access any service.

Google would love it. So would most developers. So would Apple. A network of that sort basically obviates the walled garden approach the mobile industry has taken, and resembles the way any PC can access anybody or any application able to get onto the Internet.