Net Neutrality in Court Again

The U.S. Court of Appeals for the District of Columbia Circuit is hearing oral arguments Sept. 9, 2013 in a lawsuit brought by Verizon Communications challenging the Federal Communications Commission "net neutrality" rules.

Some paint the dispute as involving “Internet access.” That isn’t actually the case. The FCC already mandates that users have access to all lawful applications. The FCC also agrees that Internet service providers have the right to manage traffic on their networks to maintain quality of experience by alleviating congestion problems.

The issue is whether ISPs have the right to shape traffic by providing class of service features, for example giving priority to voice or video traffic under conditions of network congestion.

Some supporters of net neutrality worry about the business ramifications for end users and application providers, while ISPs maintain they have the right to create and enforce policies that provide better end user experience, while also creating potential new revenue streams.

The concern is that a “two-tier” Internet could develop, where some end users and some application providers would be able to use or provide a “faster” or “better” experience, in the same way that content delivery networks now are used by app providers.

That could happen if end users are able to pay for such expedited handling of their traffic, or if ISPs could charge app providers for providing such expedited handling.

Critics of network neutrality rules argue that potential business abuses (ISPs giving priority to their own streaming video services compared to rival services) are prevented by existing antitrust laws.

Supporters of network neutrality argue that prohibiting class of service offers levels the playing field for small and big app providers alike. That is a reasonable argument, but also ignores sources of business advantage that bigger and wealthier firms always have, when competing with smaller firms, especially the ability to pay for content delivery and other quality-enhancing features.

Beyond that, the network neutrality argument resembles other challenges ISPs and regulators also face. In Europe, for example, communications regulators face crucial challenges about the ways they promote competition and at the same time encourage investment.

By setting low mandatory wholesale rates, European regulators have succeeded in spurring competition. But those same rules have depressed investment in next generation networks.

Network neutrality rules similarly discourage some types of network investment, while arguably encouraging investment in raw access capacity, since quality of service measures cannot be used.

At a high level, customers or business partners always pay for every investment in network infrastructure. Part of the issue is whether network neutrality rules encourage or discourage some forms of innovation, and encourage or discourage network investment.

It’s a difficult balance to strike.

Consumer Devices Using Organization Networks will Double Over 2 Years

Information Technology professionals surveyed by CDW expect expect the number of personal smart phones and tablets accessing their networks to more than double in the next two years. About 90 percent of respondents say the effect will be to grow bandwidth requirements 63 percent.

About 39 percent of those respondents also expect to encounter increased network latency. Some 44 percent expect increased server requirements, while 37 percent say storage requirements also will grow.

Core messaging functions (email, text,voice/voicemail) are the single most important end user function to be supported. as you might guess. About 48 percent of respondents said core messaging was important.

Accessing organizational data was viewed as key by about 47 percent, illustrating the importance of content consumption. Some 36 percent indicated storing organizational data or

documents was important.

Viewing or creating documents was deemed important by about 33 percent, the same percentage indicating collaboration (conferencing, webinars, document sharing) was important.

Regulators Favoring New Entrants in Spectrum Auctions

European Community Competition Commissioner Joaquin Almunia said while monopolies and duopolies of European mobile telecoms companies were unacceptable, he had no objection in principle to a mobile market with three or four players.

The biggest long term issue is whether “three” or “four” providers is the market-dictated outcome. For the moment, regulators and some policy advocates in most countries seem to favor “four” is the preferable number of contestants to sustain competition.

Beyond that, auctions for new Long Term Evolution fourth generation networks will, in principle, create the foundation for possible new competitors to enter the mobile markets as well.

That preference for adding some new competitors can be seen in numerous instances.

The New Zealand auction of Long Term Evolution spectrum will include provisions intended to encourage entry of new contestants into the market. Perhaps the single biggest difference is that new spectrum winners who are not already providing mobile service in New Zealand will have five years to build networks covering at least 50 percent of the population, while any spectrum winners already in the New Zealand mobile market  will have to build networks reaching at least 75 percent of their current rural 2G and 3G base station sites within five years.

The New Zealand auction is scheduled to begin in October 2013. For sale are nine 700MHz licenses (2x5MHz).

Bidders will be limited to three licenses each, unless there is excess spectrum left unsold after the first round of bidding.

In Austria, national regulator Telekom-Control-Commission (TKK) will reserve two blocks of spectrum in the 800MHz band for a new entrant. TKK also has put together a “newcomer package” allowing that 800MHz spectrum to be combined with 2.6GHz frequencies, with the ability to enable national roaming.

That auction, originally scheduled to be held in September 2013, has been postponed due to merger activities under review affecting three of Austria’s four mobile service providers.

H3G wants to buy Orange and A1 is buying the YESSS! mobile network. TKK reckons that it does not make sense to hold an auction now, before the outcome of those mergers is finalized.

TKK want to avoid awarding frequencies to what are now distinct service providers, only to find those assets combined in the near future.

TKK wants to ensure sustainable competition by allocating frequencies to competing providers. In fact, it is TKK policy that a minimum of four national mobile providers are required to maintain competition in the Austrian mobile market.

In the U.S. market, there is debate about rules for upcoming spectrum auctions in the former analog TV bands, where some advocated bidding rules that give clear preference to Sprint and T-Mobile US, for example, whether that actually leads to better outcomes for consumers or not.

The larger point is that regulators seem to be acting rationally, in terms of their obligations to protect the public by preventing a monopoly or duopoly market from developing.

On the other hand, the long term implications are that few if any markets will be able to sustain more than three or four national providers, and some would argue the stable market structure is just three providers.

Amazon Launching a Free Smart Phone? Maybe Not.

Amazon now says it has no plans to launch a free smart phone in 2013, despite rumors to the contrary. 

Precisely what that means for future launches is not completely clear. Amazon might have been planning a 2014 launch. Amazon might only have considered the economics of a "free" device, and decided against it. 

Or Amazon might later decide to do it. Firms often deny such rumors, even when they are substantively true. 

Amazon was said to be considering launching a “free” smart phone, according to technology writer Jessica Lessin. 

Since nothing ever is truly “free,” the question is what revenue model Amazon might have expected to use, or to have considered.

As Google’s answer might be “advertising,” Amazon’s answer would likely be “additional e-commerce sales.” Also, the “no cost” phone does not necessarily imply “free mobile service.” It seems unlikely Amazon would attempt that, and instead would simply create a way to distribute the devices, with users obtaining their own service on a third party basis.

Some might argue that could prove a boon for T-Mobile US, which already encourages its customers to consider devices and service two distinct and separate purchases.

As you would guess, such an effort would be a formidable undertaking. Some might guess that Amazon would bundle the phone with a required Amazon Prime subscription. That would provide an immediate $79 a year recurring revenue stream, and also encourage more people to take advantage of the streaming video and free shipping features Amazon Prime provides.

Ad sales might form part of the revenue stream as well, some would speculate.

Lessin says she has been told an Amazon smart phone would be powered by a “forked” version of Android.

The plan might not actually come to fruition, some also would argue, especially if Amazon cannot convince at least one manufacturer to build such a device, or if some of the leading mobile service providers decide not to cooperate, or if the revenue model cannot be solidified.

Up to this point, there arguably has been more thinking and experimentation about ad-supported services, compared to commerce or ad supported devices. But lower-end Kindles already partly defray manufacturing costs by displaying ads to users.

Hong Kong Mobile Operators Each Could Lose 33% of Their 3G Spectrum

Changes in spectrum policy always have huge consequences. So it is no surprise that  four incumbent Hong Kong 3G network operators warn of dire consequences if the Hong Kong regulator proceeds with a plan to reassign some 3G spectrum whose licenses expire in October 2016.

SmarTone Telecommunications, CSL, Hutchison Telecommunications Hong Kong and PCCW's HKT argue that the government must follow long-standing industry practice and automatically renew their 3G spectrum licences on the 2.1-gigahertz band.

Regulators want to put up some of the spectrum for another auction process. The plan calls for taking away about 33 percent  of the 3G spectrum at 2.1GHz from each of the four incumbent 3G mobile operators for re-auctioning when the spectrum assignment period expires in 2016.

China Mobile, the world's largest wireless network operator, has expressed interest in bidding for the re-assigned spectrum. Some immediately will suggest that is the real reason for the spectrum plan.

U.S. Mobile Market Share Now Hinges on Organic Growth, Not Acquisitions

The U.S. mobile market actually is far more concentrated than people usually assume. Though most would concede the leadership of the four national carriers, one might guess that there are still meaningful network assets to be acquired.

That actually is not true.

Assuming AT&T gets regulatory permission to buy Leap Wireless, something most observers suggest will be the case, the U.S. mobile market will include Verizon Wireless at 30 percent share, AT&T Wireless at 30 percent share, Sprint at 18 percent share and T-Mobile US at 14 percent market share.

That means the largest four mobile operators in the United States now account for nearly 92 percent of total U.S. mobile subscribers. So there still is eight percent more market share to be gained, some might note.

Yes and no. TracFone Wireless has about six percent share, but it is a mobile virtual network operator with a prepaid-only revenue model. If you add the MVNO non-facilities-based customers of TracFone to the four national carrier market share, you have 98 percent of total market share.

Yes, were TracFone a willing seller, a buyer would momentarily gain six percent additional share. But most acquirers who have done so, in any business, know that the odds of keeping those customers for the long term is quite difficult.

So the upshot is that TracFone’s market share would be “soft” in any acquisition by one of the four national facilities-based carriers.

That leaves only one percent or so remaining facilities-based service providers in the U.S. mobile market. Even if TracFone wanted to sell its business, it is selling customer accounts, not any network assets or spectrum licenses.

So how much more consolidation can happen in the U.S. mobile industry? Not much.

That means we are likely headed for a robustly competitive U.S. mobile market, as growth through acquisition now is largely off the table for the four major carriers.

Some would say the biggest possible merger would be between T-Mobile US and Sprint, the number four and number three carriers in terms of market share.

Fitch does not see that happening. “We expect only modest consolidation going forward as few material targets remain when operators and spectrum holdings are considered,” says Fitch Ratings.

Fitch believes it is virtually certain that the Federal Communications Commission would oppose any consolidation among the top four U.S. mobile operators, as in fighting the AT&T purchase of T-Mobile USA, anti-trust attorneys noted that the U.S. market already is far too concentrated.

Though the merger of AT&T and T-Mobile USA might conceptually be viewed differently than a combination of the number three and number four providers to create three contestants of roughly equal size, many have noted that the argument against AT&T’s purchase of T-Mobile USA suggests the U.S. Justice Department also would frown on such a deal.

So if the four leading firms cannot merger with each other, what is left? It’s a no-brainer that the regional players would eventually be taken out, for incremental growth.

“The long-term future for regional or small wireless operators is uncertain at best,” Fitch says.  “Fitch believes that these operators will eventually be acquired by larger wireless operators.”

But none of those deals alone will change existing market share very much. There is, after all, only eight percent share held by all the other mobile service providers other than the big four.

But there are other deals many expect to see. Dish Network, for example, owns valuable Long Term Evolution spectrum, but the value of that spectrum vaporizes unless Dish Network can get its network built by FCC deadlines.

Few believe Dish can do so without taking on a major mobile partner, one way or the other. That suggests either a major alliance with one of the four national carriers, or an absorption of Dish by one of the four.

Many expect T-Mobile US or AT&T logical candidates for such a deal. AT&T has been a rumored buyer of Dish for years, in fact. At this point, all the mobile service providers will have made a fundamental decision about whether they are buyers or sellers. Undoubtedly, Dish also has made such a decision, whatever its public statements.

Still, a Dish acquisition would be about getting spectrum assets, as Dish has no mobile customers at the moment.

Though consolidation in the communications business will continue, Fitch suggests the big wave of national and large regional provider mergers is over, in the domestic U.S. mobile business, for the time being.

DoCoMo Finally Gets the Apple iPhone

DoCoMo, the mobile business of NTT, finally is getting rights to sell the Apple iPhone in 2013, leveling the device playing field with rivals KDDI Corp and SoftBank Corp., which of which already sells the iPhone. 

For observers of the U.S. mobile market, which awaits an expected attack by SoftBank-owned Sprint, the big question is what Sprint might attempt, when it launches a new effort to take market share from rivals.

Based on SoftBank's track record in Japan, many expect a disruptive attack on pricing. But beyond that, most observers think Sprint also will try something else, creating a new sort of offer that offers uniqueness in the U.S. market.

Perhaps a large part of SoftBank's success in Japan was due to its exclusive rights to sell the iPhone. The same was true of AT&T, when the U.S. carrier had an exclusive right to sell the iPhone.

That obviously will not be a factor in the U.S. market when Sprint starts its attack.