Clyburn Sees MTEs, Pole Attachments as 'Silver Lining' to Dark FCC Competition Policy

Commissioner Mignon Clyburn slammed FCC competition policy but saw two "bright spots" ripe for a bipartisan approach: promoting competition in multiple-tenant environments (MTEs) and lowering pole-attachment barriers to infrastructure deployment. She spoke at an Incompas conference Wednesday where speakers cited pole attachments and the "make ready" process as inhibiting broadband expansion. Despite a "backlash" from incumbents and some policy setbacks, new competitors are driving market improvements and winning the battle for public opinion, including on net neutrality, said Incompas CEO Chip Pickering.

Clyburn said FCC Republicans "only pay lip service" to competition, advancing a "creative view" that retail services must be offered "over a provider's own last-mile facilities" to be legitimate: "Only facilities-based companies need apply to this FCC." She decried commission elimination of protections for wholesale business data services, copper retirements and telecom service discontinuances, and noted its proposed Lifeline USF "ban on all non-facilities-based carriers." To achieve BDS deregulation, the majority "strangely" relied on potential competition or "data where one consumer-grade broadband connection in a census block was a proxy for ubiquitous dedicated business service," she said in a speech closely tracking prepared remarks.

Even if deployment is the aim, Clyburn said, the FCC "put the cart before the horse" by undermining wholesale arrangements and spurring "market exits and consolidation by competitive providers." She said the agency also "hamstrung itself" by refusing to review AT&T buying Time Warner, and is mishandling the online video migration, having "just handed the keys to the internet" over to broadband providers by repealing net neutrality safeguards.

One "silver lining" is the FCC could "unleash competition" in MTEs, such as apartment buildings, Clyburn said. It "bodes well" the agency at least opened an inquiry on "hyperlocal barriers," she said. "There are issues due to exclusive arrangements between building owners and single providers. Residents pay higher prices, while building owners and providers line their pockets."

Clyburn also cited reducing infrastructure deployment barriers as an area for bipartisanship. "Reforming pole attachment timelines and standardizing rational fee structures can make a huge difference in both the cost-effectiveness of broadband deployment, and the timeliness of broadband deployment," she said. "The clearest way to move forward on pole attachment reform is to adopt a federal-level one-touch make-ready approach." While there are different OTMR flavors, she hopes the FCC can move "expeditiously" to an order that resolves pole-attachment problems "without state and local pre-emption." FCC spokespersons didn't comment.

Clyburn wouldn't predict when she might leave the commission (see 1802070047), when asked about her future by Pickering. She said she would like her "FCC tombstone" to say "#ConsumersFirst."

Sequential make-ready work has been a "nightmare" and "threw us for a loop," said John Burchett, Google Fiber head of public policy. He said the "crazy system" of each existing pole attacher moving its own lines, one by one, to make room for new attachers adds costs, delays and uncertainty: "You just can't do a business plan." OTMR is a "common-sense way to make the process more efficient," and ultimately, incumbent attachers and electric utility pole owners "will like it" because they won't have to coordinate. "Deployment is really hard," Burchett said, noting Google Fiber is focused on serving its current nine markets and making "internal progress," despite the view from outside its fiber initiative has "stalled."

Burchett and others said new competitors prod incumbents to improve service by raising data speeds and lowering prices. Fatbeam CEO Greg Green and Uniti Fiber Vice President Jeffrey Strenkowski hailed the FCC's E-rate subsidy program as helping their companies build fiber to schools and libraries, "anchor tenants" that they and others can then leverage to deploy to others in a community. Paula Boyd, senior director-government and regulatory affairs, said Microsoft is pushing cloud-based services and platforms, and also rural connectivity through unlicensed TV white spaces in partnership with others. Windstream is looking at fixed-wireless solutions and plans to participate in the FCC's Connect America Fund Phase II fixed broadband service subsidy auction, said Malena Barzilai, vice president-government affairs.

RocketFiber has "extremely high" consumer "take rates" in downtown Detroit for its Gibabit-speed service, surpassing its expectations in the business and residential sectors, said CEO Marc Hudson. He said the company has "taken over a third" of the residential market even without pay TV, and is exploring pushing farther out into the Detroit area. Vice President Colin Crowell said Twitter's service has gone from 140 characters with just simple links to 280 characters and "a feature-rich, media-rich experience."

Pickering said a "new coalition is forming" around competition and an open internet, with polling showing 80 percent of Americans favor net neutrality. Large ISPs' campaigns to paint internet edge and tech providers as "dangerous" are a "sign we're winning," he said.

The FCC net neutrality repeal order is legally vulnerable in certain areas, said Markham Erickson, Steptoe & Johnson attorney and Incompas outside counsel. He said the rapid reversal of the 2015 Title II (Communications Act) order raises questions on the merits and the decision-making process. The agency denied Incompas' petition to include relevant data from recent transaction reviews in its latest rulemaking and didn't seem to follow its own demands for "rigorous" cost-benefit analysis, he said.

The litigation timetable will probably depend on which circuit hears the case, Erickson said. The U.S. Court of Appeals for the D.C. Circuit generally can decide cases within a year, while the 9th Circuit, one of the other courts that potential litigants are targeting, could take up to a couple of years, he suggested.