Get the FCC out of the Gutter

also published at Wireless Community blog

There’s been an interesting discussion on the NYCwireless mailing list over the past few days about the Let There Be Wi-Fi article. Of particular note is a comment made by Alex, who runs Pilosoft, an independent ISP in New York City:

There is such thing as ‘natural monopoly’. Gas lines, water lines, *phone lines and coax lines* are natural monopolies and does not make sense to have multiple companies competing with each other. Now, putting *content* over those lines is definitely *not* a natural monopoly. Broadband is definitely *not* a natural monopoly.

The distinction that Alex draws between the physical infrastructures and the information services provided over those infrastructures is an important one. Its not new; In the earlier days of dial-up ISPs, phone companies would provide the physical infrastructures, and the internet was delivered over the phone lines as an information service. Many phone companies became ISPs as well, but because the modem technologies were so simple, the differentiation between two ISPs or between an independent ISP and the phone company ISP came down to additional services.

Nowadays, the separation between physical infrastructure and internet service is no less distinct, merely obscured. The technology has advanced, but its still the same basic setup. There’s a physical cable coming into your home, and there are services that are delivered on top of that wire (the internet often being one of those services). The only difference is that cable and telephone companies have spent the last few years creating a smokescreen so that we, as consumers, have a hard time seeing where that line is drawn.

The cabling, as it was before, and as it will continue to be, is a natural monopoly just like electrical, gas, and water. Phone and cable companies don’t want to admit this fact, because that means they will properly be subject to other regulations. But let’s call a spade a spade. We don’t have (and don’t want) lots of different companies digging up our streets to install yet more wires. It serves us no good to go through this wasteful process. We are better served by having one (or at most a couple) of different wires that are run across a community and into our homes, and opening up those lines to competitors who can provide internet, video, and phone services.

But the FCC has confused the situation, being blinded by the cable and phone companies’ smoke screens. They’ve removed the regulations that ensured competition on the phone lines, and they failed to establish similar regulation for cable lines. They view internet and video as information services, which cannot be regulated. But in order to have information services, you need to have widespread physical infrastructure on which to delivery those services. And because of the requirements and cost of building this infrastructure, the general public is best served by only building this infrastructure ones (or maybe only a few times).

Perhaps we’ve been approaching this problem from the wrong direction. This isn’t the FCC’s domain. They don’t belong in the gutter, digging ditches and laying wire. They belong watching our airwaves, and dealing with services at the service level.

We need to be pushing for these private natural monopolies to be treated as such.

Susan Crawford, Assistant Professor of Law at Cardozo School of Law, speaks from a similar point of view, maintaining that “broadband access companies that cover the waterfront (literally — are interfering with our navigation online) should be confronted with the power of the state to protect entry into this self-owned commons, the internet.”

So, how do we work to get these lines to be recognized by the federal or local governments as the monopolies they are? Where do we start with respect to such regulation?

I don’t know the answer, but would love to hear ideas.