Time Warner, AT&T, and other incumbents have radically changed their strategy to prevent broadband competition in North Carolina via new restrictions that are being debated in the Legislature currently. This switch in strategy offers more proof that they stand on no principle aside from protecting their monopoly. The famous HB 1252 in North Carolina is back... but different. In the past, the telcos and cablecos have argued that municipal broadband networks are unfair to them because the city could use tax dollars in some way to build the network (ignoring that most publicly owned networks do not use any tax dollars). Now, these companies are pushing a bill to require financing backed by taxpayer dollars. Seems like an odd switcheroo. As one might expect from companies like AT&T and Time Warner, who have no respect for the public process, the bill was kept top secret until debated in committee, giving only the side filled with monied interests and lawyers an opportunity to prepare. The bill (that we have made available here as there is no official version yet) would not just place significant restrictions on new publicly owned networks, but would also handcuff existing networks like Salisbury and Greenlight in Wilson. To reiterate, this bill will damage the most advanced broadband networks available in North Carolina today. Sounds like North Carolina wants to take up Mayor Joey Durel in Lafayette on his offer to welcome the businesses moving from North Carolina to Lafayette with a big pot of gumbo. Fascinating that after an FCC Commissioner noted that the US Broadband Plan recognizes the right for communities to build their own broadband infrastructure, North Carolina is deciding it prefers to preclude any broadband competition, sticking with its last-century DSL and cable. Just fascinating. The Salisbury Post has been watching and recently published a scathing editorial against the bill. This is one paragraph, but the whole editorial is well worth reading.

Yet, if the HB 1252's intent becomes reality, such areas will be severely hobbled in their near-term ability to tap into the broadband revolution.

Paul Venezia is one of the few who noted a recent Lessig presentation that discusses broadband policy. Larry Lessig's presentation offers an excellent short history of broadband and telecom history - from the beginning of AT&T to the National Broadband Plan. The video runs an hour, but should be essential viewing for anyone who wants to understand why the U.S. continues to fall behind international peers in broadband. Lessig's answer is that we have lost our independence. Large corporate interests dominate the federal government as well as the state legislatures, resulting in a government that too often bends to their will. Lessig's presentation covers the essential role of government in forcing AT&T to open the phone network (paving the way for fax machines, Sports Illustrated football phones, and eventually dial-up modems). Key takeaway: the owner of a network makes the rules and determines who is allowed to use it and under what circumstances. Among other issues, he offers the most accessible explanation of what happened with the FCC/Comcast court ruling that has (temporarily - we hope) rendered the FCC unable to stop carriers from telling users what sites they can visit or adjusting the speeds to some sites based on the carriers' business model. He notes his disappointment with the National Broadband Plan - where the Obama "reality-based" Administration chose to ignore reality and take the easy road of not challenging powerful incumbent telecom interests. Toward the end, he raises the chilling prospect of the federal government instituting a form of the PATRIOT ACT on the Internet in the future. Watching this reminded me that we believe government has an essential role in building and owning infrastructure but we strongly support Constitutional checks against the government getting too involved in policing content. This is an excellent presentation - particularly for those who are not as familiar with the history of the AT&T, the FCC, Carterphone, and the competition we briefly had among service providers in the days of dial-up.

Susan Crawford recently posted "The Gentlemen's Agreement," noting that major cable companies have divided the national market and tend not to compete with each other (they actually help each other in some circumstances). Though bad for everyone not named Comcast or Time Warner, this division is actually a historic accomplishment:

Even J.P. Morgan couldn’t get independently-owned railroads to agree not to compete with one another in the late 19th century. Not that he didn’t try. In 1890 one of Morgan’s associates was excited by the prospect of a Western Traffic Association that would include a director from each railroad and set uniform rates: “Think of it - all the competing traffic of the roads west of Chicago and Saint Louis placed in the control of about 30 men!” But the effort fell apart because some of the independents insisted on cutting rates and invading each other’s territories.

Cable and fiber-optic networks, as with railroads, have natural barriers to entry because the costs of building a network are very high; entrenched incumbents have nearly all the advantages should any competitor have the resources to surmount the barrier of sky-high upfront capital costs. In short, the market cannot self-regulate. We have a number of choices:

1. Do nothing, let Comcast, et al. do as they please.
2. Regulate: Hope the FCC or other Federal Agencies can stand up to the corporate lobbyists and regulate in the public interest.
3. Provide a Public Option

We prefer the public option route - communities can build their own networks and remain independent of corporate control of infrastructure. However, many communities have chosen to do nothing -- some in hopes the federal government will get its act together and reign in the power of these companies as the U.S. falls behind international peers in broadband metrics. Verizon's FiOS has brought fiber to the home in some cities (with many cities courting the company), but some quickly found FiOS comes with significant trade-offs. Karl Bode details some of these - like Boston being shunned because it wanted Verizon to pay property taxes.

David Pogue, a NY Times Tech columnist, recently wrote about a partnership between cable companies to share Wi-Fi access points:

I, a Cablevision customer, can now use all of Time Warner’s and Comcast’s hot spots in these three states. If you have Time Warner’s Road Runner service at home, you’re now welcome to hop onto Cablevision’s Optimum hot spots wherever you find them, or Comcast’s Xfinity hot spots. And so on. It’s as though all three companies have merged for the purpose of accommodating your Wi-Fi gadget, hugely multiplying the number of hot spots that are available to you. The companies call this kind of partnership “the first of many.” Now, I think this development is fantastic. It hits me where I live. It’s free. It’s fast and reliable. I love it.

He goes on to ask, what's in it for them? Apparently, David Pogue has little understanding of how dominant firms work together to cement their power and limit competition. He then put up a post with an answer from an insider:

“David, widely available WiFi makes our service better, and more useful and valuable,” he wrote. “And we don’t compete directly with TWC or Comcast for high-speed Internet customers; we compete with phone companies that offer a wide array of services, including data plans over increasingly over-burdened and sluggish cellular networks for an extra $60 per month."

Bingo. Big cable companies do not compete with each other - one suspects these companies have tacitly divided the national cable market with an understanding that they will not overbuild each other. The barriers to entering the cable/broadband market are already substantial: any new network requires a massive upfront capital expenditure. This Wi-Fi partnership with cable incumbents makes that barrier even larger. Let's imagine that a city wants to build a publicly owned network that will compete with one of these companies. Customers of the private incumbent have Wi-Fi access all over the place, across three states - and probably more to come. The incumbent gets the benefit of investments from other cable cos in the partnership. Any guesses on whether the publicly owned network will be invited to join that partnership?

Catharine Rice gave a terrific presentation detailing the ways Time Warner has responded to the municipally-owned Greenlight fiber-to-the-home network: raising the rates on everyone around them and cutting great deals to Wilson residents. I saw the presentation on the Save NC Broadband blog which also has a link to her slides - make sure you follow along with the slides. She details how Time Warner has raised rates in towns around Wilson while lowering their prices and offering better broadband speeds in Wilson. Once again, we see that a community building their own network has a variety of benefits: a superior modern network that is community owned, lower prices on the last-generation network from the incumbent, and some investment from the incumbent. Now the question is whether Wilson's residents will be smart enough to support the publicly owned network in the face of Time Warner's low low prices - a recognizing that a few short years of low prices (for low quality) are not worth abandoning the publicly owned network and the benefits it has created in the community.

Cable pricing in the Raleigh-Durham-Cary NC Market from City of Wilson, NC on Vimeo.

Last month, the Daily Yonder offered a short history of Universal Service in telecommunications in the U.S. Due to the high costs of providing services in many areas of the country, private network owners have never demonstrated an interest in providing universal service, leading to various government initiatives to expand access to telecom networks. One of the reasons we support publicly owned networks is because we strongly believe in universal service. Universal access to fast and affordable broadband is an important goal for a variety of reasons, not the least of which is its potential to democratize and enhance educational opportunities. Readers of this site undoubtedly recognize why fast and affordable access to broadband is important to people in rural areas. What is often forgotten is why people who already have access to such broadband should care about extending access to those who don't yet have it -- aside from simply caring about fellow Americans. There are actually self-interested reasons why everyone should support extending networks into rural areas. Perhaps the best reason is something called the "network effect" which refers to the principle that the value of a network increases as more users join. One example of this is the telephone, where a telephone network becomes more valuable as more people are on it - allowing subscribers greater access to each other. Another benefit rooted in self-interest is analogous to benefits of rural electrification. When publicly owned electrical networks electrified the country-side, new markets were created as people with electricity began buying appliances, creating a demand for more products and services. Though the effect may not be as strong with broadband, the new technologies will create new markets, creating more opportunities for everyone. I do not suggest these self-interested motivations are the sole or best reasons for universal service, but I also want to make sure they are part of the discussion because we all benefit by ensuring everyone has access to these essential infrastructures.

We are seeing increasing evidence that competition alone is not sufficient to keep prices low. Though some communities (Monticello, MN; Powell, WY) have seen major prices drops as a result of competition from a publicly owned network, other communities have seen only price freezes or more modest increases when compared to non-competitive areas. In Lafayette, Cox has just raised prices despite the new competition in the community. Despite the recession, we have seen Comcast, Qwest, and others continue to profit handily as people scrimp to continue connecting to the Internet. The best method of ensuring Internet access becomes or remains affordable is with a network that is directly accountable to the community - one that puts community needs ahead of profits.

As we have noted previously, Longmont, Colorado, has seen a number of private companies attempt to offer Wi-Fi broadband and then go out of business. As Colorado preempts local authority by requiring a referendum by the city before it can offer services itself, Longmont recently had a vote to authorize telecommunications services. Voters defeated the option. As is common in these referendums, voters were blanketed with reasons to vote against it as incumbents (Qwest and Comcast) spent $200,000 opposing competition whereas the city is prevented by law from advocating for a ballot measure. Now the Wi-Fi network will be auctioned off in pieces because it cannot pay taxes.

Ohio-based DHB Networks owes the Boulder County treasurer’s office $87,000 in unpaid business personal property tax, and the county demanded the company cease operations unless it pays those taxes. DHB also owes the city of Longmont. Longmont-based RidgeviewTel is running the network, at least until the Wi-Fi equipment is auctioned off Thursday — at which point, 400 to 600 customers will be without Internet access, RidgeviewTel CEO Vince Jordan said.

Though the city already has fiber assets that could be used for backhaul as well as other expertise it could use in continuing to run the network, it cannot step in to run a network that would be useful to the community:

While the city can step in and operate the system, it would be only for municipal needs — such as police, fire and utility services — and not to provide Wi-Fi to customers. “Our hands were always tied,” Roiniotis said. “We could buy the system and operate it, but only for our own purposes. We can’t provide the retail part of it.” The city’s hands also were tied when it came to campaigning. State law bans governments from spending public money to campaign for or against local ballot questions.

Though 400-600 people may not seem like a lot of people to leave stranded, many of those on the network were the ones that needed a low cost alternative. This is one of the reason some hoped for a last minute resolution to the impending auction.

For another real-world example of how companies respond to public entry into the telecom market (as opposed to theoretical arguments about crowding out investment), let's look back down to Lafayette and how cable incumbent Cox responded:

“Cox froze the cable rates in Lafayette, and they didn’t freeze the rates in other areas,” said Terry Huval, director of LUS, a municipally owned utility company which fought major incumbent opposition before building an FTTH network in Lafayette and starting to offer service earlier this year. “We figured our citizens saved over $3 million in cable rates even before we could offer them service.”

I have yet to see a cable company leave a market or reduce investment following the introduction of a public competitor. The opposite tends to happen - they increase investment and often drop prices or leave them lower than in surrounding, non-competitive areas. Often, the rates are not really advertised but if you call from the competitive area, they will offer a better deal:

Trae Russell, communications manager for EATEL, the local telephone franchise in Ascension, La., and some surrounding communities, had seen the same thing happen in his area, when EATEL started offering FTTH-based services in 2006. In fact, EATEL went so far as to take out an ad in the Lafayette newspaper, alerting cable customers there to the discounts that Ascension customers were getting and forecasting similar lower rates in Lafayette once the LUS network was in the works. “It was an incredibly bold move on our part,” Russell said. “Cox came in with an incredibly aggressive promotion for TV service with every bell and whistle you could imagine. We couldn’t figure out how they could even make money on it. So we took out an ad in the Lafayette newspaper that basically said, ‘Hey Lafayette, look at the great prices you are going to get from Cox.’ Cox was not amused.”

This is also a lesson for those who want to build a public network. Don't expect to win just because you have a better service and you offer lower prices from what was available before a competing network is built. The incumbent has often already paid off its network. Additionally, incumbents are often larger companies that pay less for their television contracts, so they can lower prices farther than one might expect initially.

We occasionally look in on Seattle's broadband discussions because they are the largest city in the U.S. in which there is something approaching a serious discussion about a publicly owned community fiber network. They have a mayoral candidate who makes it a high priority and their Chief Technology Officer, Bill Schrier, both gets it and has an excellent staff that understands the benefits of such a network. Glenn Fleishman has just interviewed Bill Schrier about the network and subsequently discussed the public need for broadband in specific neighborhoods due to extreme market failure. I like Glenn's style - he asks difficult questions and pushes for real answers. That said, I still want to push back on one of his statements because I think it instructive:

Government is often criticized for eliminating competition, inefficiently providing private services, and removing the profit motive. However, market failures are often where governments are asked or begged to step in, and, when accomplished correctly, can provide new opportunities for private enterprise.

Glenn is absolutely right both in capturing some of the criticisms leveled at public networks as well as noting that publicly owned broadband tends to occur in the most difficult environments. Contrary to telco rhetoric, local government officials tend not to want to jump into telecommunications efforts unless they see it as vital for the community. They are busy enough and these networks take years of planning, public hearings, and lots of loud attacks from the very companies that refuse to build the needed networks. But look at the first two items that Glenn notes government is accused of: eliminating competition and inefficiently providing services. How is it that it can do both? Governments cannot coerce people into using the network and federal regulations prevent the local government from abusing its authority over the rights-of-way for the public network. Local governments can use untaxable bonds but private companies get depreciation, tax incentives, and can cross-subsidize from the nearby communities where they charge monopoly prices. As for removing the profit motive - this is hardly a criticism. Infrastructure should not be controlled by any entity with a profit motive - it is the foundation of all other markets.