from the do-not-pass-go,-do-not-collect-$200 dept
If there’s one thing that the U.S. broadband industry is terrified of, it’s price regulation. The idea that the government might eventually cap the rates regional monopolies can charge in the absence of meaningful competition keeps a lot of executives up late at night. But despite a lot of fear mongering by telecom industry folks on this front, the U.S. has never really gotten even close to that reality. Repeatedly, even the most modest of non-price related regulatory telecom oversight efforts (from net neutrality to privacy) are routinely and easily dismantled by powerful lobbyists either before they can take effect or not long after.
Recently New York State passed a new law (pdf) demanding that regional broadband providers (Verizon, Charter Spectrum, and Altice) provide low-income consumers $15, 25 Mbps broadband tiers to help them survive COVID. The goal: to try and help struggling Americans afford the high cost of broadband. Under the proposal ISPs are also allowed to offer $20, 200 Mbps tiers, with any price increases capped at two percent per year.
Regulators engaging in anything even close to price regulation of regional monopolies is, again, said monopolies’ worst nightmare. As a result the broadband industry quickly sued New York, insisting that the state is forbidden from passing such a law thanks in part to the Trump administration’s net neutrality repeal. While many folks think that repeal just killed net neutrality rules, that was never true. It also killed much of the FCC’s consumer protection authority, including its ability to adequately respond to billing fraud (which happens a lot in residential broadband thanks to misleading surcharges and fees).
The repeal even went one step further in claiming that states also aren’t allowed to protect consumers from telecom industry shenanigans. The problem: the courts haven’t been looking too kindly upon this argument so far. In part because once the FCC abdicated its regulatory authority over telecom, it lost any authority to tell states what they can or can’t do. The industry has used similar arguments to try and attack state-level net neutrality rules, and it hasn’t gone particularly well for them:
“An agency that has no power to regulate has no power to preempt the states, according to case law,? Stanford Law Professor Barbara van Schewick told Motherboard. ?When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers. That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC?s repeal order removed its authority to adopt such protections.”
Basically, the broadband industry has spent four years having its cake and eating it too, demanding that nobody on either the state or federal level has any authority to tell broadband providers what to do, whether we’re talking about basic rate regulation or even the most basic of consumer protections. While the Trump and Ajit Pai FCC thought that was just nifty, it’s an argument that’s not being taken particularly seriously by the States, which have simply doubled down on their own regulatory efforts to fill the giant consumer protection void left by Trump-era apathy:
“I knew giant telecom companies would be upset by our efforts to level the playing field, and right on cue, they’re pushing back,” New York Governor Andrew Cuomo said in a statement. “Let me be abundantly clear?providing internet in the Empire State is not a god-given right. If these companies want to pick this fight, impede the ability of millions of New Yorkers to access this essential service, and prevent them from participating in our economic recovery, I say bring it on.”
Keep in mind New York is simply trying to force ISPs to offer low-cost service to low-income families. Despite the posturing here by Cuomo, the state likely lacks the political courage to take this idea one step further and regulate prices for all New York State residents truly upsetting deep-pocketed campaign contributors.
Again, none of this would be necessary if we had adequate competition in residential US broadband. But because pushing policies that increase competition upsets AT&T, Verizon, Comcast, and Charter, a corrupt Congress and captured regulators aren’t willing to really do that. Meanwhile, the US telecom sector continues to whine about a “fractured landscape of state-level requirements,” hoping you’ll ignore the fact that they created this entire mess by repeatedly, brutally attacking absolutely every effort at even the most modest federal consumer protection oversight.