Five questions about broadband rules the FCC left hanging

by Steve Blum • , , ,

FCC chairman Tom Wheeler released a summary yesterday of the new, common carrier rules he’s proposing for the broadband industry. His overall intent is clear: bring cable companies, wired and wireless telcos and independent ISPs under one common carrier umbrella, at least as far as broadband is concerned. But it was just a summary. The details won’t be made public until the commission votes on 26 February 2015. There’s a lot that’s not clear. My top concerns are…

Muni broadband systems – public utility law generally treats privately owned utilities differently than publicly owned ones. Cities are largely exempt from California Public Utility Commission regulation, for example. But Wheeler clearly believes muni broadband falls under the FCC’s jurisdiction. Does he plan to include city-provided “broadband Internet access service” in the new rules? And what about dark fiber, conduit and pole access and other facilities offered by cities? Assuming Wheeler is right about the commission’s authority – I don’t FWIW – you can make a fair argument that level playing field obligations should apply to any provider, regardless of ownership.

Role of state commissions – federal law acknowledges the role of both state public utility commissions and the FCC in regulating common carrier telecommunication services. The diffuse nature of the Internet lends itself to a federalised approach, but some of the things Wheeler wants to regulate – pole and conduit access, VoIP service, consumer complaints – are at least partially under state control now, and governed mostly by land line phone rules (with some cable exceptions thrown in). The wireless industry, on the other hand, is federally regulated. Expect years of work to sort it out.

Merging broadband into existing cable and telco rules – wireline telcos are deep under legacy regulation, wireless carriers less so but still have some common carrier obligations. Cable companies fought a bitter battle over the years to avoid any hint of utility style control. Wheeler holds mobile telephone rules up as an example of how broadband regulation should work – will that be where it all comes together? With voice and video migrating to IP, trying to enforce four different rulebooks – telco, mobile, cable and, now, broadband – will be impossible.

Universal service – Wheeler shouts out that broadband providers won’t have to pay into the Universal Service Fund, but also says they’ll get some level of support from it. What about universal service obligations, though? Will ISPs have to meet build out requirements, like cable companies (at least in California) and telcos theoretically do now?

Middle and last mile unbundling – Wheeler is promising “no last-mile unbundling” for broadband providers, but that’s going to hard to square with his apparent goal of creating a level playing field. Incumbent wireline telephone companies have to allow some ISPs access to their central offices and last mile copper. Will that disappear with the coming transition to all-IP service? If not, why shouldn’t cable companies bear the same burden? And what about middle mile fiber – Wheeler plans to “address issues that may arise in the exchange of traffic between mass-market broadband providers and edge providers”. Access to dark fiber will be at the top of that list.

We’ll have to wait until the FCC meets at the end of the month to get the answers, if everyone plays by the rules. It shouldn’t be a Beltway game, though, so let’s hope they don’t.