Improving Broadband Competition Will Take Wide-Ranging Policy Effort

Competition is a crucial aspect of the fight to improve internet access and adoption. Large national companies that dominate local markets through monopolies or duopolies have long been a feature of the broadband market. Stronger competition would incentivize companies to improve services, lower prices, and be more consumer-friendly. Improving competition takes a concerted effort from policymakers in a wide range of telecommunications policy areas ranging from community networks to unlicensed spectrum sharing.

The Federal Communications Commission (FCC) can and should take action to foster competition through a variety of different avenues within its discretion. The agency is obligated by law to conduct a Communications Marketplace Report in the final quarter of every even-numbered year to analyze and assess the state of competition among a wide variety of communications services, including that of internet service providers (ISPs). OTI submitted reply comments for the FCC’s 2020 proceeding last week to respond to a variety of arguments in the record and underscore the wide variety of policies the Commission should pursue to improve broadband competition. OTI submitted comments with allies the last time the FCC asked for input for this report, back in 2018, and many of the fundamental issues with the broadband marketplace persist today. In the reply comments, OTI highlighted a series of policy prescriptions the FCC should pursue to cultivate a competitive broadband marketplace and provide the most benefits for consumers. These included improving the data that serves as the foundation for the report, supporting open internet protections, reviewing the harms done by anti-competitive laws restricting community networks, and implementing and supporting unlicensed sharing frameworks to improve competition.

OTI urged the FCC to ensure that whatever analysis it conducts relies on accurate and reliable broadband availability data, as well as broadband pricing data. Currently, the FCC depends on its Form 477 data—where providers submit information about where they have deployed broadband twice a year—to reveal where high-speed broadband is available. However, there is widespread, bipartisan agreement from Congress and the FCC itself that this data source is inaccurate and likely overstates broadband availability. As an example, in the FCC’s recurring Internet Access Services reports, the Commission attaches a warning that its Form 477 “does not purport to measure competition” to a chart that shows the number of providers available by census block. If the FCC feels it is not able to use Form 477 data to accurately measure competition in another report, it certainly should not do so in the context of a report specifically designed to measure competition.

The FCC, in analyzing the state of competition in the broadband market and considering its options for improving it, should review the vast amount of evidence that shows the FCC’s Title II authority and now-repealed 2015 Open Internet Order promoted competition in the broadband marketplace. The FCC’s Title II authority declared in the 2015 order ensured there were protections against blocking, throttling, and paid prioritization schemes. The order provided strong rules that incumbent and larger ISPs would not be able to abuse their market power through interconnection disputes and paid prioritization schemes to benefit themselves and gain an edge over competitive providers.

OTI also urged the FCC to consider the harms to broadband competition and adoption caused by state laws that restrict localities from pursuing community networks and public-private partnerships. These community networks and partnerships arise through an effort to either improve competition in their area or to develop a high-speed broadband provider where there often are none. OTI recently published a report on the benefits of community broadband networks and how they improve broadband access, competition, and adoption across the country. This report builds on the vast amount of evidence showing that community networks both catalyze competition and provide crucial consumer benefits.

OTI also highlighted the benefits that have come from unlicensed spectrum and the strengthening of Wi-Fi for broadband competition, and urged the FCC to continue its good work in expanding access to unlicensed spectrum. Increasing access to unlicensed spectrum both improves Wi-Fi services and gives fixed wireless providers the infrastructure they need to expand high-speed broadband to rural and other underserved areas.

Finally, OTI also urged the FCC to not to consider future mobile 5G networks as evidence that the marketplace is competitive. The FCC cannot yet deem these mobile networks as proof of competition because widespread deployment of 5G networks will be dependent on increasing fiber deployment and adding Wi-Fi capacity for offload and backhaul. Additionally, mobile 5G networks are likely to bring their strongest benefits for urban areas with high population densities. These networks may well provide competition to the fixed broadband market in time, but for the purposes of the FCC’s 2020 report, mobile 5G networks are too nascent for the Commission to accurately assess their effect on competition in the marketplace.