MVPDs, Broadcasters, Wireless Groups at Odds on Competition

Broadcasters, MVPDs, ISPs and other entities argued over the state of competition in the broadband and video marketplaces and how to address it, in comments posted by Friday’s deadline in docket 22-203 for the agency’s biannual State of Competition in the Communications Marketplace report to Congress, due in Q4. Regulations premised on lack of competition “should be repealed,” said NCTA. The FCC “must consider the real-world consequences of imposing, in a highly competitive marketplace, a burdensome and outdated regulatory regime,” said NAB.

Broadcaster and MVPD groups noted the bevy of video options available to consumers as evidence the media industry is robustly competitive. “It has become commonplace to say that the abundance of choice is ‘overwhelming’ viewers," said NAB, urging the FCC to eliminate broadcast ownership regulations. “Given competition levels in the modern media landscape,” the over-the-air broadcast industry “can no longer bear the burdens of asymmetric regulation.” Broadcasters face regulatory burdens in ownership and introducing new tech that their competitors don’t, NAB said. “The FCC must take a hard look at regulatory policies that place roadblocks -- or at least speedbumps -- in the path of broadcast innovation,” NAB said, asking the agency to “carefully analyze all the non-broadcast sources of competition to local radio and TV stations.”

MVPD groups and music licensing organizations disagreed, asking the FCC to examine broadcast consolidation. “A principal culprit for outsized retransmission consent price increases lies with increased consolidation of broadcasters,” said DirecTV, saying broadcasters now use workarounds to evade local ownership limits. Many broadcasters are now “large conglomerates with considerable leverage,” the MVPD said. The FCC should “collect data on retransmission consent payments made to the top four or five stations in future surveys,” said ACA Connects.

Large radio groups within individual markets “have substantial competitive advantages over owners of smaller clusters of commercial stations” said the musicFIRST Coalition and the Future of Music Coalition in a joint filing. “We invite the FCC to use its resources to collect and analyze data correlating concentration of ownership over time in local markets with diversity of voices through music played in those markets.” “The vertical integration of media distribution prevents programming diversity by restricting viewer access to independent and diverse voices,” said Rural Media Group, asking the FCC to open a rulemaking on “the current paucity of rural programming in the country.”

NAB and the Satellite Industry Association said the pandemic changed the state of competition. The role of satellites “will only increase as communications mechanisms and the data shared over them increases, as most recently demonstrated during the pandemic,” said SIA. COVID-19 “categorically shifted the television viewing landscape” and accelerated consumer acquisition of digital tech, NAB said. The market is a “fragmented sea of video (and audio) choice,” NAB said, with mass audiences for TV and radio declining. The FCC “should continue to promote competition by ensuring that sufficient spectrum is made available” for the satellite industry and that “government funding opportunities and regulations are fundamentally technology-inclusive and technology neutral,” said EchoStar and HughesNet in a joint filing.

“Recent developments … have increased the level of competitive concern for CCA members and mobile services,” the Competitive Carriers Association warned. CCA cited the lack of wireless focus in rules for programs funded by the Infrastructure Investment and Jobs Act (see 2205130054) and the oversubscription of the FCC’s rip and replace program for gear by Chinese suppliers (see 2206160073). “Barriers to infrastructure deployment continue to slow needlessly the delivery of 5G and even previous generations of service,” CCA said: “Consumer issues -- in particular nationwide number portability issues and the availability of supported handsets as networks transition from 2G and 3G to Voice over LongTerm Evolution and beyond -- tilt the playing field toward a small number of large providers.”

CTIA countered that the wireless industry is competitive. “Strong consumer demand and competition among providers continue to drive increasing amounts of innovation and investment to make wireless broadband faster, better, and even more affordable,” CTIA said. The FCC can ensure continued competition by providing more spectrum for 5G, the group said. “After the upcoming auction of the 2.5 GHz band, no other spectrum is in the pipeline,” CTIA said: “By identifying future bands for repurposing, with a particular focus on mid-band licensed spectrum opportunities, the Commission can strengthen our nation’s spectrum policy and support robust deployments that provide all Americans access to next-generation technologies.” The FCC should also continue to focus on cutting red tape for wireless deployments, the group said.

CTA also called the industry robustly competitive. “Widespread deployment of 5G networks and adoption of 5G devices continues to expand the marketplace for mobile wireless services and devices,” CTA commented: “Devices help drive competition and consumer choice in the video and audio marketplaces, particularly as consumers have accessed unprecedented levels of streamed media during the pandemic.”

The Wireless ISP Association said the FCC’s report should make clear the importance of fixed wireless broadband. “It should be no surprise that over the past five years, fixed wireless technology has been the fastest growing technology for deploying high-speed broadband in the United States and globally,” WISPA said: “Today, fixed wireless technology is capable of providing Gigabit plus download speeds to various types of structures (including multiple tenant environments) and geography at a fraction of the capital cost and time that it takes to deploy fiber or cable.” To continue their success, WISPs need access to additional spectrum, the group said. Policy decisions must not undermine investment, the group said. “Access to capital remains the primary obstacle to the success of small businesses in America.”

Consumers "benefit from robust investment and competition in the telecommunications marketplace," said USTelecom, citing nearly $80 billion in annual capital expenditures by broadband providers since 2018. The FCC could "incentivize further investment and remove barriers to competition" by eliminating legacy obligations for incumbent LECs, preempting state and local laws that "inhibit deployment," and expanding the USF contribution base, USTelecom said.

The fixed broadband internet access service marketplace is "highly concentrated," and the 2020 marketplace report "confirms that the higher the speed offering the less competition there is," said Incompas. The commission should "be wary" of relying on its Form 477 when evaluating competition because there have been "a number of concerns" about the "sufficiency of the information and assessments" made from that data, it said, and clarify in its report that "the data the FCC relies upon does not measure actual competition." Some providers also face delays in deployment due to permitting, rights-of-way access and working with pole owners on attachments, Incompas said.

NTCA said permitting delays and fees, and supply chain delays, are "two of the largest challenges" for its members, with some reporting delays of up to a year in obtaining federal permits. The FCC should also "set clear standards and thoroughly evaluate the capabilities of providers" before awarding USF funding because the high-cost program is "the primary, if not the only, tool in place to ensure that rural consumers can purchase supported services" to those comparably offered in urban areas, NTCA said.

There's a "lack of pro-consumer competition" in the inmate calling services industry, said the Prison Policy Initiative, "due largely to the monopoly franchises granted by state and local governments." The decrease in rates over the past decade is also "threatened by new unregulated technologies," PPI said. The group asked the FCC to regulate video calling rates for ICS providers.