ISPs Defend Competition Policy; Advocates Urge FTC Attention

Lack of broadband market competition disempowers consumers, and increased FTC oversight is needed, consumer advocates told the agency. But industry groups argued existing regulations mean the market is more competitive than ever. The agency collected comments through Friday in docket 2018-0113 on broadband competition and consumer protection issues.

Most Americans buy wireline broadband service from four providers -- Comcast, AT&T, Verizon and Charter -- said New America Open Technology Institute Senior Policy Counsel and Government Affairs Lead Joshua Stager. The FTC should promote, not just protect competition within the market, said Public Knowledge Senior Counsel John Bergmayer. The Transportation Department “has a mandate to foster and encourage legitimate competition,” Bergmayer said, asking if it’s possible to ask the same of the commission.

The FCC’s most recent industry survey shows competition is strong for mobile and fixed-line broadband services, said AT&T attorney Jonathan Nuechterlein, saying competition is “considerably stronger” than when the FTC released its 2007 broadband report. Nuechterlein urged the agency to harmonize competition and consumer protection frameworks across the entire internet ecosystem, from ISPs to edge providers.

The current “facilities-based competition policy” has served the market well, said Information Technology and Innovation Foundation Broadband and Spectrum Policy Director Doug Brake. The FTC’s “model of overseeing unfair or deceptive trade practices is well suited to see continued success,” he continued. The agency’s former post-enforcement regime combined with the “current state of market-driven facilities-based competition” is conducive for innovation, he said.

Competition policy lags behind technological developments like 5G, said the Free State Foundation. But cross-platform competition among wireless and wireline service providers means anticompetitive market power is unlikely, said President Randolph May and Policy Studies Director Seth Cooper. They suggested “evaluations of alleged anticompetitive conduct by broadband service providers should be informed by economic analysis and antitrust precedents.” R Street Institute Technology Policy Manager Tom Struble suggested the FTC qualify and quantify “the extent of convergence in broadband and related high-tech markets.” That convergence includes home broadband, mobile broadband, cable video and a multitude of other online services, Struble said.

Groups argued about whether ISPs are giving consumers useful information on service speeds. ISPs aren't transparent with consumers or regulators, New America’s Stager said. Public resources for testing speeds are limited, consumers are unlikely to pinpoint the source for slow speeds with the available tools, and consumers have no available remedies, he said. Consumers might not understand that advertised speeds represent an ideal connection to the ISPs’ servers, PK’s Bergmayer said: ISPs should “provide consumers both with metrics that accurately convey the quality of an internet connection while also giving real-world examples of what sorts of uses different internet connections support.”

The FCC transparency rule already requires ISPs to “provide consumers with detailed, accurate disclosures regarding network performance,” AT&T’s Nuechterlein said. He also noted ISP service can vary greatly due to outside factors like third-party network congestion. Consumers have commercially available tools to gauge speeds, he said. The FCC’s Measuring Broadband America program offers the public broadband measurement metrics, America's Communications Association said. The FTC should “be wary of relying on publicly available speed tests, which consumers often use, because they will not accurately measure the speed of an ISP’s service unless the test is conducted from the ISP’s side of the modem to the ISP’s side of the point of interconnection with an upstream provider,” ACA said.