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Time to Treat Broadband Like the Essential Service It Is

from the essential-utility dept

Let’s stop ignoring the obvious: broadband internet access service is a public utility and needs to be regulated as one.

American consumers agree. A Consumer Reports survey from earlier this year found that four out of five (80 percent) consumers believe broadband service is as important as water and electricity. Indeed, broadband has become the essential service in the daily lives of 21st century consumers. The COVID-19 crisis has thrown this fact into sharp relief as many of us depend on an internet connection to work from home, attend virtual classrooms, receive medical care via telehealth services, stay connected with friends and family, and for entertainment.

The pandemic has proven just how critical a reliable, fast and affordable internet connection is today. However, unlike water, electricity, or even phone service, broadband internet service is neither universally available, nor is it regulated to guarantee access, ensure fair prices, or promote competition in the marketplace.

As a result, there exists a deeply troubling “digital divide” between those Americans who have and can afford internet service, and those who cannot. The divide is two-pronged, as both access and affordability determine whether consumers are able to get online. Access is meant as a home wired for broadband internet, and affordability is determined by whether a consumer can pay the price for service demanded by the internet service provider (ISP).

Unfortunately, those in charge at the Federal Communications Commission have proven incapable of bridging this divide. In fact, the decision a few years ago to reclassify broadband as an “information service” instead of what it obviously is, a “telecommunications service” has practically removed the Commission from any meaningful oversight role over ISPs. The next Congress needs to rectify this wrong and enact a new framework to govern broadband service, ensuring that it is both accessible and affordable to consumers.

To be sure, the FCC could restore its regulatory authority over broadband by reclassifying it as a telecommunication service. The 2005 Supreme Court decision in Brand X established that the Commission has the flexibility to make such classification decisions—decisions with real consequences for consumers that extend beyond esoteric legal exercises.

The very question of whether broadband is an information service versus a telecommunications service has been at the heart of the current net neutrality struggle for almost two decades. At the risk of gross oversimplification, an information service classification roughly translates into fewer regulations. Conversely, a telecommunications service designation avails the FCC of a stronger set of tools rooted in common carrier authority, with powers to better foster competition, ensure non-discriminatory access, and put a cap on rates that are too expensive for consumers.

The FCC correctly classified broadband as a telecommunications service in 2015 as part of its Open Internet Order, enabling the issuance of common sense net neutrality rules. This action was approved by a federal court in the 2016 USTelecom ruling. Unfortunately, all that was discarded when the current Commission reversed course a year later and decided to reclassify broadband once again, this time as an information service, as a fundamental part of its repeal of the 2015 net neutrality rules. Though obvious to us that broadband is a telecommunications service, the classification debate—read the lengthy justification for declassifying broadband in the Restoring Internet Freedom Order—has descended into a medieval exercise to determine how many angels can dance on the head of a pin.

The back-and-forth war over net neutrality fought time and time again at the FCC must end. Make no mistake, ensuring an open internet is an important policy struggle, but the FCC’s failures reveal a deeper problem: how can we best regulate internet service supplied by ISPs, which is NOT to be conflated with regulating the internet, as is so often the lament from the anti-net neutrality crowd.

The current status quo cannot be allowed to stand and it will not increase more broadband access at an affordable price. Absent much more than flimsy transparency requirements, ISPs are free from any real rules imposed by the FCC or Congress. Moreover, ISPs like Comcast and Charter are mostly insulated from competition—a study published this past summer revealed that these two companies alone maintain a monopoly over 47 million American consumers, and even more (an extra 33 million) if we disregard DSL as a real competitive choice in 2020. Adding to the misery, the rates charged by ISPs are totally inscrutable. Prices vary from neighborhood to neighborhood within the same city, and yet there’s no clear sense how prices are determined or if they’re consistent.

Though FCC Chairman Ajit Pai and others ridiculed the 2015 Open Internet Order as “utility-style” regulation, consumers now recognize broadband service as exactly that: a utility. It should be governed as such to benefit consumers. Not ISPs.

A new Congress will be sworn in next January. It can settle this debate once and for all. We can no longer endure the seesawing classification debate at the FCC, the winner of which depends upon a Presidential election every four years. Therefore, legislation must be passed to grant the FCC new, clear authority to govern broadband service as a telecommunications service, an essential utility.

Emboldened with the power to regulate broadband like a utility, the Commission can ensure affordability by applying price caps, especially where there is not effective competition and prices are too high. Alternatively, the FCC could spur competition by requiring ISPs to unbundle their networks to allow new entrants to offer service. Utility-style regulation could also be used to require deployment to underserved areas and to standardize service offerings to make sure consumers can afford a package to meet their everyday needs of remote work and online learning. Finally, as demonstrated by the 2015 Open Internet Order, utility regulation permits the FCC to require non-discriminatory access to ISP networks, the foundation for re-establishing strong net neutrality rules.

Additionally, Congress must fund a massive internet infrastructure project to get broadband into the home of every American family. Estimates that 42 million Americans lack access to fixed broadband service is unacceptable in 2020. Kids trying to attend class online shouldn’t have to drive to a parking lot to use free WiFi offered by libraries, sports arenas, or fast food restaurants. And though rural areas typically suffer a lack of broadband access, it is also an urban problem. The Gotham Gazette recently reported that: “According to city data, 40% of households in the city — home to roughly 3.4 million people — don’t have both home and mobile internet connections, and 18% have neither.”

Congress should further consider measures to make broadband affordable for all Americans. A CR survey from earlier this year found that consumers paid an average of $66 per month for internet service. Coupled with other costs and the hardships posed by the pandemic, this is simply too expensive for many families. Borrowing from a very old cable law, Congress could require ISPs to offer a “basic service” package for all consumers that provides affordable, reliable broadband at speeds that are required for today’s bandwidth-heavy applications. Comcast is already doing this in some fashion (originally as a condition to its acquisition of NBC Universal in 2011), so the idea is not exactly a stretch.

These are but a few ideas to increase broadband access and affordability. This isn’t rocket science and it should not be a partisan issue. The internet has proven obvious and essential for Americans to succeed in the 21st century economy.

With Congressional funding and a new grant of authority and purpose at the FCC to treat broadband like the essential utility service that it is, the government can—and must—connect many more Americans to the internet and to each other.

Jonathan Schwantes is a senior policy counsel in Consumers Reports’ Washington DC office where he focuses on telecommunications issues affecting consumers in the broadband, television, media, and wireless markets.

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Comments on “Time to Treat Broadband Like the Essential Service It Is”

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MathFox says:

Re: start with basics

The problem is not with the definition of the term; the problem is in the political discussion under what regulatory regime Internet access should fall. The last (almost four) years we have seen how little sanity can be in US government and how much government can service its "friends".

Under Trump corruption in the US has grown again; sanctioned corruption like donations to politicians too. That’s the real problem the US has, rot from within.

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Anonymous Coward says:

Re: Re: start with basics

" problem is in the political discussion"

Exactly correct — this is purely a political ideological issue.

Extreme ideological Progressives want the Federal government to take over the internet-service industry by declaring it to somehow be a Public Utility… and thus politiicians will get control of most aspects of that industry.

Jonathan Schwantes makes no argument of "natural monopoly" here, he presents the standard socialist egalitarian case of affordable easy access to an alleged absolutely essental service.

Broadband service is in no way a natural monopoly nor an essential public service.
This stuff is all heavily biased political ideology.

MathFox says:

Re: Re: Re: start with basics

Broadband service is in no way a natural monopoly nor an essential public service.
[citation requested]

I can agree that broadband is not a natural monopoly, but the "cable owners" monopolise the access to services.
Internet (broadband) access is IMO clearly a service to the public. It’s gradually becoming more and more essential. For people that work or study from home it has become essential this year.

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Anonymous Coward says:

Re: Re: Re:2 basics

… "cable owners" monopolize the access to services ONLY because government agencies enforce that monopoly privilege.

Internet service is certainly very desirable and it’s available to almost everyone now at some level.
Broadband direct to your home 24/7 is a different story, but there’s a big difference between wants and needs — huge numbers of Americans today grew up comfortably without any internet at all, nor cell phones, nor PC’s.

The term "public utility" is absurd. Every economic good is useful "to the public" and almost every good or service might be considered "necessary" by some segment of society.
Any government designation of a few industries as "public utilities" is completely arbitrary and economically unjustified.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:3 basics

The Infra-structure level, that is the cable, fibre or wires connection you to the Internet are a natural monopoly. The cable/phone duopoly that exists is some areas has arisen becuase what were two very different analogue systems, but which have converged on a common digital underpinning. Those systems due to infrastructure abandonment, are moving back to local monopolies for digital connections.

Unless and until the infrastructure becomes a common resource, available to several ISPs, the infrastructure monopoly means that ISPs will also be a local monopoly. Hint, two providers installing the cabling to serve all customers in an area doubles the infrastructure costs, because of duplication, and in practice if one becomes dominant, the other goes out of business trying to recover capital costs for unused infrastructure, and cannot afford to maintain it. The situation in the US is not helped by the ISPs also being part of media empires, with a cable business to support, hence data caps, and strong objection to allowing others to provide services over their infrastructure. Network neutrality is/was a bandaid to prevent the monopoly at the infrastructure level leveraging that monopoly to hinder competitors, particularly those providing content.

Make the Infrastructure open and you can have competition at the ISP and content levels, leave it tied in with a content business, and you will have all the problems of a monopoly controlling the connection to competitors for eyeballs by the infrastructure monopoly becoming an ISP and content delivery monopoly, because of their control over the Infrastructure.

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MathFox says:

Re: Re: Re:3 basics

huge numbers of Americans today grew up comfortably without any internet at all, nor cell phones, nor PC’s.

I grew up without Internet, but was one of the early computer and Internet adopters. Now I have to work from home and both Internet and my personal computer have become essential parts of doing my work-from-home.
And it’s not just work, but interaction with government and businesses also increasingly moves to online over the Internet. Internet is likely to become more essential than a connection to the electricity grid.

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PaulT (profile) says:

Re: Re: Re:3 basics

"huge numbers of Americans today grew up comfortably without any internet at all, nor cell phones, nor PC’s."

Yes, and the world has changed so that’s both about as desirably as growing up without electricity or telephones, but also as disadvantageous to operating in the modern world would have been in the time the people you’re thinking of were growing up.

If your opposition to any modern technology is simply "people who grew up in a time where it wasn’t necessary didn’t need it", your argument is wrong on a fundamental level.

"The term "public utility" is absurd"

Why? It works with sewage, running water, power, etc., without controversy. Why is it absurd here?

ECA (profile) says:

Re: Re: Re:3 basics

Public utilities were great, and solid.
THEN the corps got pissy, and the gov. bent to them.
And prices started going up.

See a public utility isnt there to MAKE A PROFIT.
It pays its bills and thats it.
A Corp has to make profit(not always) and Sell Shares to the stock market(not always).
RThe Smartest corps Iv seen DONT HAVE STOCKS, and Pay for everything they need.

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Anonymous Coward says:

Re: Re: Re: start with basics

How does broadband differ from electricity, water, or sewage? It is possible to live without any or all of them being provided as utilities, but modern life assume that you have them available. For instance, try finding a job is you do not have a decent Internet connection, with more and more companies presume that an applicant will be available for a video interview.

Broadband, like electricity etc is also a natural monopoly because of the massive infrastructure costs. The duopoly of cable and phone for the Internet only arose because cable and phone were different and incompatible services. Now they have converged due to digital technology, and partly driven by the number of people who have dropped a landline service for a mobile service, phone companies are abandoning areas to the cable companies, that is a drift to a natural monopoly situation.

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Anonymous Coward says:

Re: Re: Re: start with basics

"Broadband service is in no way a natural monopoly nor an essential public service."

When was the last time you were job hunting? Last century?
Access to many services during the pandemic caused shutdown was online only.
But you claim these things are unnecessary, care to explain yourself?
Perhaps your claim is class based, assuming those who can’t afford something do not deserve same, health care for example. This attitude is despicable.

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PaulT (profile) says:

Re: Re: Re:2 start with basics

"When was the last time you were job hunting? Last century?"

That’s something that can be a theme with certain arguments. Things that were either unnecessary luxury items 30 years ago, or even simply didn’t exist, have become necessary services or inexpensive commodities, while other things have changed.

You see this is the "I didn’t need internet when I was a kid" without the realisation that it’s not even possible to perform certain activities today without it. You have the "I worked my way through college so you’re just lazy if you don’t" attitude without the understanding that rent and tuition have skyrocketed while wages have not. You have the "you’re not really poor because you have a 50" TV" without the understanding that you can get a cheap 50" TV for $200 second hand nowadays, and that’s a one-off payment every few years, not something that’s going to keep you making rent.

I might be stereotyping here, but people who claim that internet is not necessary are not living in the real world and likely went through their formative years before it existed in the mainstream. But, things change. There’s certainly a massive disadvantage in life for people who have no access, especially during pandemic lockdowns.

danderbandit (profile) says:

Re: Re: Re: start with basics

"Broadband service is in no way a … essential public service"

Said by someone who has reliable broadband and can afford it. What about the large #’s who have no broadband, or even a reliable internet connection, but who have to use the internet for school? Or work? Even I, an older white guy who also has reliable (mostly) and affordable broadband, can see your privilege glaring thru.

ECA (profile) says:

Love the demographics.

I love the complaints of What this is/will do/ and how much it costs. The funny thing about that is that following the freeway system, and interlinking from point to point to point. Isnt/wouldnt be so bad.
But who is doing it that way? And was the original system built that way? Creating a straight line as a back bone would be a waste of time, and do little to expand it. But wasnt that PART of the original? It wasnt designed for EVERYONE. But they may have thought about Fixing/updating it, and ran it around the old freeway or rail lines system.
Has the gov, updated the system? redone it, re-run the lines, Done a full re-install over the years?
We know the problem at the final mile, as its NOT a mile, its 1000’s of miles. And probably has so many patches and dents in the lines and some of it is old enough to be your grandfather. That no one has Ever seen it after it was placed in the ground. and the lines up in the air, are a patch work of Cuts and shorts, and the price of copper is do High. They would loose money taking it down.

I really wonder if the states/cities and the franchise laws means they would have to RE-do the contracts, and pay MORE to get access to all the road work.

ECA (profile) says:

Re: Re: Love the demographics.

Thats a pretty good question.
But why not ask, Why we have them, if they have NO POWER to enforce the regulations?
Almost none of them have an enforcement service. And those in charge CANT/WONT. Unless there is someone pushing them to do something.
And the only ones doing it are those political ones, that want to Piss off a group, to BACK them.

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Stephen T. Stone (profile) says:

Re: Re:

Because one of the two major political parties in the United States is interested in governance and the other is interested in dominance. If you have to ask which is which, you haven’t been paying attention to…well, the past four years, really.

MathFox says:

Re: Re: Love the demographics.

About Europe… it is easy to generalize; realize that there’s dozens of countries, each with centuries of written histories. There’s also dozens of languages, cultures and political systems.

Many EU countries are monarchies and royal families tend to favour stability over generations. We do not allow (large) corporate donations to politicians or their parties. There is a different election system (proportional representation) that makes it easier for smaller parties to enter parliament. It is unlikely that a single party gets an absolute majority, coalitions are required, which makes that a respectable party has to listen to (and accept) other opinions. So less mood swings over here.
Corporations are less influential when they can not buy politicians. Northern Europe abhors any form of corruption… and political toying too. (Which creates tensions with Southern Europe, but economically the south is weaker…) On the other hand, lobbying on EU level is strong and not always with consumer best interests in mind.

Anonymous Coward says:

Utility-style regulation could also be used to require deployment to underserved areas and to standardize service offerings to make sure consumers can afford a package to meet their everyday needs of remote work and online learning.

This, with teeth. As it didn’t work very well for telcos (and still doesn’t). We just keep giving them money to do nothing except ask for more later.

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Anonymous Coward says:

Re: Re: Re:

Why do you say such things, when anyone who regularly reads the forums knows you are lying?

I don’t remember any regular contributor here speaking in favor of the Comcast/Frontier/Verizon monopolies–in fact, any attempt to disrupt those monopolies is regularly greeted with optimistic hope. The alleged social-networking monopolies (Facebook/Twitter/Apple/Google) are widely recognized as not actually monopolies, natural or otherwise: but even so, this blog has presented approaches that might actually add choice to users (by encouraging more entrants into the field, and allowing companies to offer unique choices of content.)

And, despite the generally left-leaning tone of the conversations, big government isn’t generally one of the options. (As Mike noted in the discussion of California’s contract-worker-insanity, EVERYONE wants big government after someone ELSE, not after themselves. Here, we’re mostly tech workers, and even if in our evil hearts we desire big government to come down on someone, it’s not someone in tech.

sd70mac (profile) says:

Re: Re: Monopolies

While it is true that a monopoly owned by a city and controlled by people that can be voted out is a slight improvement over one owned by a faraway corporation, I know that I’d prefer open access where multiple companies compete for my business for Internet, as they do with electricity here in Illinois and in Texas. I’m also involved in a project to create a Co-operative that runs an Open-Access network in my area, although we are still just gathering support at the moment.

ECA (profile) says:

Re: Re:

yes and no.
Its the corps instigating the States to make regulations.
It would be NICE, if the old laws restricting Corps and capitalism would still be working.
There have been many laws and many TIMES those laws were TRIED to be added back, about Lobbyists. KICK them to the Curb.
But out representation in congress LIKES those lobbiests, and the corps giving them money.

STILL I think we need to Move Wash DC. to the middle of the country, in the Middle of the wheat fields,m and Isolate and Control access. ANd DETER development so NOTHING fancy gets built. Give them, the SAME cheap foods WE PAY for.

PaulT (profile) says:

Re: Re: Re:

"I wish a button for NONE OF THE ABOVE"

You have that already in the form of a write-in vote.

Actually, I’d encourage you to use that, then vote for other things on the ballot. From what I’ve seen, one of the problems you have over there right now is that a lot of propositions, state amendments and smaller public offices are skewed certain ways because people who don’t bother to make their voice heard for the Presidential race also don’t bother to vote on the other issues that affect their lives as a result. So, the people who do bother to turn up affect all the other votes.

For example – it’s been confirmed that Mississippi has finally voted to overturn a Jim Crow era rule that was in place to stifle the black vote following the Civil Rights Act.

I’m not aware of the full history, but it’s my understanding that this had been up for a vote before. If so, how much of still being in place was due to this actually being the will of MS voters, and how much of it was because non-racist voters just didn’t bother turning up because they disliked their odds in the Presidential part of the ballot?

ECA (profile) says:

Re: Re: Re: Re:

It has been mentioned a few times HOW balancing the system would help allot.
Take all the invested money into a pool, and give it out evenly for those running for office, that already have a Certain amount of people backing them.
$14 billion spread over 4-10 persons running?
Then demanding that All TV broadcast an Equal amount for each of the candidates.
Trying to get the money OUT of the system Just isnt going to happen, so we Must CONTROL it and who gets it.

Then if you want to go wild. We could install a system to Allow everyone in the USA to read and VOTE on the bills, they try to pass. Which wont happen.

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Anonymous Coward says:

Facebook, Twitter, LinkedIn and such "SERVICES" are now de facto

Let’s stop ignoring "social media" as not essential!

Let’s stop ignoring the obvious: broadband internet access service is a public utility and needs to be regulated as one.

Facebook, Twitter, LinkedIn and such "SERVICES" are now de facto essential to the income and well-being of most people. Those "services" should be regulated so that they’re FAIR by Common Law terms, and "service" cannot be arbitrarily denied.

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Anonymous Coward says:

With all the data / dirt they have on people, they are POWERFUL.

Why would anyone not be for regulating "social media"? What’s the actual downside for you?

Is it okay for instance, if GOOGLE "shares" its data on your searches for torrents and subsequent visits to site/page to get that torrent? HMM? Or should that massive invasion of privacy be regulated so that the evil ??AAs won’t have the (verified) facts to get an actual search warrant for your premises? HMM?

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Stephen T. Stone (profile) says:


Why would anyone not be for regulating "social media"?

First they came for Twitter, and I didn’t speak out, because I didn’t use or work for Twitter.

Then…well, I trust that even you understand the point.

Also: Social media is not nearly as “required” or “necessary” for daily life as is access to the Internet. I haven’t used Twitter in months and I don’t consider it any more “essential” than a site I’ve never visited at all (e.g., 8kun).

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PaulT (profile) says:

Re: With all the data / dirt they have on people, they are POWER

"Why would anyone not be for regulating "social media"?"

Regulation is fine. It’s when you insist that this needs to take the form of removing their rights and forcing them to host things that destroy their customer base that it becomes problematic.

"Is it okay for instance, if GOOGLE "shares" its data on your searches"

Not really, but why would that not be covered by existing privacy laws, and thus not need specific regulation? Also, are you saying that Google is social media, or are you just stretching so far to make a point that you’re forgetting the subject you’re pushing. You might find these arguments easier if you drop the desperation.

Richard Bennett (profile) says:

Not the most thoughtful piece I've read about broadband

Consumer Reports had a good reputation when it was all about testing toasters and fridges, but their foray into public policy hasn’t gone well. They’ve got a huge campaign around promoting organic food, not really consumer friendly or good for the planet.

This article doesn’t fill me with confidence in the author’s expertise. The fact that he fails to mention mobile broadband suggests it’s merely ice skating over the issue.

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