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Scholarship Abstract Although most studies of major communications reform legislation focus on the merits of their substantive provisions, analyzing the political dynamics behind the legislation can . . .
Although most studies of major communications reform legislation focus on the merits of their substantive provisions, analyzing the political dynamics behind the legislation can yield important insights. An examination of the tradeoffs that led the major industry segments to support the Telecommunications Act of 1996 (the “1996 Act”) provides a useful illustration of a political bargain. Analyzing the current context identifies seven components that could form the basis for the next communications statute: (1) universal service; (2) pole attachments; (3) privacy; (4) intermediary immunity; (5) net neutrality; (6) spectrum policy; and (7) antitrust reform. Assessing where industry interests overlap and diverge and the ways that the political environment can hinder passing reform legislation provides insights into how these components might combine to support the enactment of the next Telecommunications Act of 1996.
Scholarship Abstract The battle over rules governing 5.9 GHz airwaves offers important lessons in both the creation of property rights and applied public choice. Set aside . . .
The battle over rules governing 5.9 GHz airwaves offers important lessons in both the creation of property rights and applied public choice. Set aside in 1999, the 75 MHz “Car Band” band was designated by the U.S. Federal Communications Commission (FCC) to support emerging vehicle telematics and computerized driving. Transportation regulators and automakers, including General Motors, Ford, and BMW, claimed this would efficiently promote road safety, fuel savings, and collision avoidance, as dedicated bandwidth would operate under a “spectrum commons” regime designed to favor such applications. While anticipated services gradually developed, the 5.9 GHz band did not. Spectrum inputs outside the “Car Band” accommodated driving applications, while the general development of wireless networks shifted social priorities. Eventually, Internet services companies such as Comcast, Google and Microsoft claimed the 75 MHz allocation was wastefully large and that switching access rules to favor WiFi would generate net benefits. Suggested for possible reallocation by the U.S. Department of Commerce since 2012, the FCC issued an order in 2020 to split the baby: 45 MHz of the band would be shifted to Wi-Fi, with 30 MHz remaining dedicated for Intelligent Transportation Systems. The FCC’s 2020 “Cost Benefit Analysis” purports to quantify the trade-offs involved, but upon scrutiny fails to plausibly value Wi-Fi services or to even consider the relevant opportunity costs. The costly, delay-intensive and ad hoc policy process (whose costs are additionally ignored by the FCC) begs for further development of auction mechanisms to rationalize alternative rights assignments.
ICLE Issue Brief Section 60506 of the Infrastructure Investment and Jobs Act (“IIJA”)—signed by President Joe Biden on Nov. 15, 2021—requires the Federal Communications Commission (“FCC”) to adopt final rules facilitating equal access to broadband Internet.
Section 60506 of the Infrastructure Investment and Jobs Act (“IIJA”)—signed by President Joe Biden on Nov. 15, 2021—requires the Federal Communications Commission (“FCC”) to adopt final rules facilitating equal access to broadband Internet. More specifically, the statutory text directs the FCC to prevent discrimination in broadband access based on income level, race, ethnicity, color, religion, or national origin, while also directing the Commission to consider issues of technical and economic feasibility.
Evaluating digital discrimination based on race, ethnicity, color, religion, or national origin should be relatively straightforward. But Section 60506 adds income level as a protected class. This presents what we call the “income conundrum.” It is virtually impossible to disentangle the factors affecting economic feasibility from factors correlated with membership in this particular protected class.
In this issue brief, we focus on the tension between the goals of preventing discrimination based on income level and ensuring that broadband-deployment projects are economically feasible, as well as the relevant distinctions between the application of intent-based or effects-based tests of discrimination. We find that some tests of so-called “digital discrimination” on the basis of income level—particularly in the context of effects-based “disparate impact” tests—can be misleading, and their application could be counterproductive.
First, it is important to note that Section 60506 refers to discrimination in the provision of broadband access and not to levels or rates of broadband adoption. While access is a necessary precondition to adopt broadband services, policymakers should be cautious not to infer that lack of adoption is necessarily caused by lack of access. Research finds that consumer income and the affordability of broadband services are key factors influencing whether those who enjoy broadband access will ultimately adopt broadband service. Other factors broadly correlated with income—such as age, educational attainment, and home-computer ownership and usage—similarly affect broadband-adoption decisions.
Thus, the use of income as a heuristic to determine whether providers’ deployment decisions are discriminatory is inherently fraught. Income level will influence consumer decisions to adopt broadband, which in turn affects providers’ ability to deploy to a given area. Therefore, while correlations between income and broadband adoption certainly can be found, research to date does not find evidence that—all else being equal—broadband providers intentionally discriminate against similarly situated groups on the basis of income, race, or other protected characteristics when it comes to broadband access.
Further, it is broadly agreed that Section 60506’s reference to “economic feasibility” refers to profitability—e.g., to whether broadband providers can earn a competitive return from their investments in deployment. Because broadband providers’ investment decisions are always constrained by their limited resources, they must prioritize deployment projects. As a consequence, they must decide not only whether a given project is likely to be profitable, but also how profitable it is likely to be relative to all other potential projects.
The expected profitability of any given broadband-deployment decision depends on a range of cost and demand factors. On the cost side, providers must consider a given territory’s population density and terrain, as well as such factors as state and local rules and taxes. On the demand side, the propensity of consumers who would be served by the deployment to both adopt and purchase broadband are key factors. Thus, the general willingness within a given territory to adopt broadband factors into deployment decisions. Where there is insufficient willingness to purchase broadband service, deployment may not be profitable.
Population density is generally acknowledged as the most important cost factor driving broadband-deployment decisions. The U.S. Government Accountability Office reports that population density is the cost factor most cited as “a critical determinant of companies’ deployment decisions,” a conclusion supported by academic research. Population density also figures into the demand side of the equation, as the GAO notes that low-density rural areas often struggle to “aggregate sufficient demand” to purchase broadband service. Because population density also can be correlated with demographic factors like income, race, age, educational attainment, and home-computer use, however, there may be a temptation for policymakers to infer digital discrimination in deployment decisions that were, in fact, based on population density or other permitted cost and demand considerations.
Further complicating the evaluation of digital-discrimination claims based on income is that, not only is income a key factor influencing whether a given consumer will adopt broadband, but it is also highly correlated with race, ethnicity, national origin, age, education level, and home-computer ownership and usage. Any rules promulgated under Section 60506 that fail to recognize this “income conundrum” will invite costly and time-consuming litigation based on allegations of digital discrimination either where it does not exist or where it is excused by economic-feasibility considerations. Moreover, this threat of litigation could hinder, rather than foster, further broadband deployment.
The U.S. Supreme Court has established tests governing when it is appropriate to conduct an effects-based “disparate impact” analysis in the context of discrimination law. Applying this rubric to Section 60506, we find that it lacks “results-oriented language.” The prohibition against digital discrimination “based on income level, race, ethnicity, color, religion, or national origin” would therefore apply only in cases of intentional discrimination in deployment decisions. Mere statistical correlation between deployment and protected characteristics is insufficient to support a finding of discrimination.
Finally, to close the so-called “digital divide,” it would be wise to avoid creating inefficient bureaucratic processes through which broadband providers would be forced to defend economically justified deployment decisions. For this reason, FCC rules should articulate a presumption of non-discrimination, in which allegations of digital discrimination must be demonstrated, rather than a presumption of discrimination that must be rebutted for each deployment decision. Direct user support—such as that offered by the Affordable Connectivity Program and programs operated under the Universal Service Fund—is a much more direct and economically efficient way to help close the “adoption gap” component of the digital divide.
As part of 2021’s Infrastructure Investment and Jobs Act (“IIJA”), Congress tasked the Federal Communications Commission (“FCC”) with investigating and remedying “digital discrimination” in broadband deployment.[1] The law directs the Commission to adopt rules that “facilitate equal access to broadband internet access service,” which is defined as “preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin.”[2] To this end, the Commission issued a Notice of Inquiry (“NOI”)[3] as a first step toward an ultimate rulemaking.[4]
The NOI states that “one of the Commission’s foremost goals is to ensure that every person in the United States has equal access to high-quality, affordable broadband internet access service… Every person across our Nation deserves—and must have—equal access to this crucial technology in the increasingly digital world; a person’s zip code should not determine their destiny.”[5]
But Section 60506 of the IIJA[6] creates a tension between the goals of encouraging greater broadband deployment and remedying alleged discrimination; indeed, some efforts to address the latter concern could result in slower investment in buildout. Importantly, the NOI does not focus on extending broadband deployment to the truly unserved—i.e., to those who lack any broadband Internet options at all.[7] In fact, the word “unserved” does not appear in the NOI at all, while the NOI instead declares that its target is the “underserved.”[8] But rather than define “underserved” consumers by reference to their relative inability to access broadband Internet service, the NOI defines the set as those who are members of categories that “have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality” because of their income level, race, color, religion, or national origin.[9] The NOI therefore includes in the ranks of the “underserved” individuals who do have the ability to access broadband service, although potentially at slower speeds than some of their neighbors, or who have otherwise opted not to adopt broadband service.
Getting faster Internet to those who live where broadband service already exists, or assisting them in paying for access to the service that already exists, are fundamentally different problems than that faced by Americans who lack Internet access because they live in geographic areas without broadband infrastructure. Moreover, onerous or poorly implemented requirements that seek to curtail “digital discrimination” may be more likely to generally slow further broadband deployment than to speed it. An overly broad enforcement regime—one that sought to apply effects-based “disparate impact” tests or that operated from a presumption of discrimination—could force providers to constantly justify everything from decisions around actual deployment to decisions regarding whether to bid on particular deployment programs offered by governments.
Indeed, were the Commission to pursue economically ill-considered rules to curtail alleged “digital discrimination,” it could lead to intractable litigation. As we discuss below, the U.S. Supreme Court has in the recent past imposed limits on how “disparate impact” tests may be imposed by legislation.[10] These limits apply even to sectors with a demonstrated history of discriminatory redlining, such as housing.
It is undoubtedly important to examine patterns of deployment to discover how best to connect underserved communities. But if we are to overcome impediments that stand in the way of reaching every potential broadband consumer, it is essential that the FCC carefully consider how and why investment decisions are made in broadband markets.[11]
In short, we generally question the NOI’s framing of broadband-connectivity issues as being primarily or even substantially a matter of “discrimination.” Indeed, the IIJA’s project to eliminate “digital discrimination of access based on income level”[12] may not usefully forward efforts to connect the underserved at all. While there remains much work to be done to achieve the goal of universal connectivity, the FCC is already well-aware of the technical, economic, regulatory, and geographical issues that can impede deployment. The Commission should continue the important work it is already doing to address those issues and should ensure that its implementation of Section 60506 is focused on remedying cases where there is strong evidence of intentional discrimination against consumers based on protected characteristics.
In Part II, we analyze the relevant legal concerns for the Commission, should it seek to undertake a “disparate impact” rulemaking. In Part III, we discuss the theoretical and practical challenges that attend treating “income level” as a protected category. We address the economics of “access vs. adoption” and how, if not treated carefully, the issue would substantially skew any effects-based analysis of broadband-deployment patterns. We also discuss the economics of broadband deployment, including the factors that best explain deployment patterns. Part IV concludes with a brief set of policy recommendations.
Section 60506 requires that:
[T]he Commission shall adopt final rules to facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility presented by that objective, including… preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin; and… identifying necessary steps for the Commissions to take to eliminate discrimination… .[13]
Pursuant to this, the FCC asks in its NOI for:
… comment on how we should understand when digital discrimination is “based on” one of the listed characteristics. Does the term “based on” require discriminatory intent? If so, how would we determine the presence or absence of discriminatory intent? Would such an approach be practicably difficult to enforce? Alternatively or in addition, should we establish a “discriminatory effects” or disparate impact test? [14]
Advocates who support greater FCC authority to pursue alleged digital discrimination argue that the use of impermissible factors has contributed to underinvestment in minority communities and that “digital redlining has left unserved and underserved neighborhoods on the wrong side of the digital divide.”[15] Thus, a number of comments submitted to the record have called for the FCC to employ an effects-based “disparate impact” analysis under Section 60506.[16] As we discuss below, however, both the structure of Section 60506 and the Supreme Court’s established jurisprudence on disparate-impact analysis suggest that it would be much more reasonable for the Commission to construe Section 60506 as directing an analysis of intentional discrimination in deployment.
Statutes that define impermissible discrimination, such as the Civil Rights Act of 1964, can be analyzed legally either as addressed toward explicit discriminatory intent, referred to as “discriminatory treatment,” or toward behavior inferred from discriminatory effects, such as the “disparate impact” that the challenged behavior or policy has on a protected class.[17] A case involving discriminatory treatment is somewhat more straightforward,[18] insofar as it demands evidence demonstrating that decisions adversely affecting some protected class were made because of bias toward members of that class. In this context, where deployment decisions are made on the basis of discriminatory intent, the Commission is on much firmer legal ground to pursue them.
By contrast, were the Commission to adopt a “disparate impact” assessment as part of Section 60506, it would face an uphill legal climb. Among the primary justifications for disparate-impact analysis is to remedy those historical patterns of de jure segregation that left an indelible mark on minority communities.[19] While racial discrimination has not been purged from society, broadband only became prominent in the United States well after all forms of de jure segregation were made illegal, and after Congress and the courts had invested decades in rooting out impermissible de facto discrimination. Any policy intended to tackle disparate impact in broadband deployment needs to take this history into account.
Moreover, there is little evidence that IIJA’s drafters intended the law to be read so broadly. The legislative record on Section 60506 is exceedingly sparse, containing almost no discussion of the provision beyond assurances that “broadband ought to be available to all Americans,”[20] and also that the provision was not to be used as a basis for the “regulation of internet rates.”[21] Given that sparse textual basis, reading Section 60506 as granting the Commission expansive powers to serve as a broadband civil-rights czar could also run afoul of the “major questions” doctrine.[22] That doctrine requires Congress “to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”[23]
More specifically, it does not appear that Section 60506 can be reasonably construed as authorizing disparate-impact analysis. While the Supreme Court continues to uphold disparate-impact analysis in the context of civil-rights law, it has recently imposed some important limitations. For example, in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc., the Court upheld the disparate-impact doctrine, but noted that disparate-impact claims arise under statutes explicitly directed “to the consequences of an action rather than the actor’s intent.”[24] For example, in the Fair Housing Act, Congress made it unlawful:
To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.[25] [Emphasis added.]
The Court noted that the presence of language like “otherwise make unavailable” is critical to construing a statute as demanding an effects-based analysis.[26] Such phrases, the Court found, “refer[] to the consequences of an action rather than the actor’s intent.”[27] Further, the structure of a statute’s language matters:
The relevant statutory phrases… play an identical role in the structure common to all three statutes: Located at the end of lengthy sentences that begin with prohibitions on disparate treatment, they serve as catchall phrases looking to consequences, not intent. And all [of these] statutes use the word “otherwise” to introduce the results-oriented phrase. “Otherwise” means “in a different way or manner,” thus signaling a shift in emphasis from an actor’s intent to the consequences of his actions.[28]
The Court reached this holding after reviewing a number of its previous decisions developing the distinction between effects-based and intent-based interpretations of a law. Particularly relevant here, in Univ. of Texas Sw. Med. Ctr. v. Nassar, the Court considered statutory language that prohibited discrimination “because of … age” and found that it only prevented intentional discrimination.[29] The Court also noted that, in previous cases, it had construed “because of” to mean “‘based on’ and that ‘based on’ indicates a but-for causal relationship.”[30]
Further, even where disparate analysis is appropriate, the Court held that it is significantly constrained by the need to ensure that the free-enterprise system continues to function:
[Supreme Court precedent] also teach[es] that disparate-impact liability must be limited so… regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification…a court must determine that a plaintiff has shown that there is “an available alternative … practice that has less disparate impact and serves the [entity’s] legitimate needs.”[31] [Emphasis added.]
In practice, this means that lower courts are free to probe a disparate-impact claim rigorously in order to avoid such claims becoming a club to wield against regulated entities.[32] It also suggests that, in a context such as Section 60506’s proscriptions against digital discrimination, they may not be so broad as to render it impossible for broadband providers to make effective decisions about which deployment projects are economically feasible.
Thus, as Section 60506 was drafted without “results-oriented language”[33] and instead frames the prohibition against digital discrimination as “based on income level, race, ethnicity, color, religion, or national origin,”[34] this would put the rule squarely within the realm of prohibitions on intentional discrimination.[35] That is, to be discriminatory, the decision to deploy or not to deploy must have been intentionally made because of the protected characteristic. Mere statistical correlation between deployment and protected characteristics is insufficient.
In enacting the IIJA, Congress was undoubtedly aware of the Court’s history with disparate-impact analysis. Had it chosen to do so, it could have made the requirements of Section 60506 align with the requirements of that precedent. But it chose not to do so, thereby reinforcing that it intended the FCC to have some discretion, but to err on the side caution when declaring practices an impermissible form of discrimination.
This is not to say that Section 60506 has no effect. As mentioned above, it can be reasonably read to encompass intentional discrimination, given appropriate evidence. Further, the means available to the FCC to remedy undesirable patterns of deployment are manifold. The only options rendered off the table would be requirements that are technologically or economically infeasible, such as an unfunded mandate that providers deploy at maximum speeds to all households simultaneously. As discussed further below, the FCC also has broad authority over various funding programs that it could use to generate both user subsidies and provider incentives to deployment, which could go a long way toward closing the digital divide.
The expected profitability of any given broadband-deployment decision will hinge on a range of cost and demand factors. On the cost side, providers must consider a given territory’s population density and terrain, as well as such factors as state and local rules and taxes. On the demand side, the propensity of consumers who would be served by the deployment to both adopt and purchase broadband are key factors. Thus, the general willingness within a given territory to adopt broadband weighs heavily in providers’ deployment decisions. Where there is insufficient willingness to purchase broadband service, deployment may not be profitable.
As we explain below, economic feasibility is essentially synonymous with return on investment. While income may be correlated with some factors that drive decisions to deploy, animus against potential customers with protected characteristics is almost certainly not an important factor in deployment decisions. Thus, even if the Commission engages in an intent-based analysis under Section 60506, there are many economic-feasibility factors it needs to take into consideration, which we set forth below.
The text of Section 60506 refers to discrimination in the provision of broadband access and not to levels or rates of broadband adoption. While access is a necessary precondition to adopt broadband services, policymakers should be cautious not to infer that lack of adoption is necessarily caused by lack of access. Research finds that consumer income and the affordability of broadband services are key factors influencing whether those who enjoy broadband access will ultimately adopt broadband service. Other factors that may be broadly correlated with income—such as age, educational attainment, and home-computer ownership and usage—similarly influence broadband-adoption decisions. Thus, comparing relative levels of income in territories that are, or are not, chosen for broadband deployment is a poor heuristic to determine whether providers’ deployment decisions are discriminatory. Local income will influence consumer decisions to adopt broadband, which in turn affects whether it will be economically feasible for providers’ to deploy to a given area.
The Commission therefore should not summarily conclude that deployment patterns correlated with income are a form of impermissible discrimination. As explained above, in order to run afoul of Section 60506, the Commission should insist that challenged deployment decisions are directly attributable to an intentional choice not to serve consumers who are members of a protected category. To apply analysis that ignores intent and instead looks at whether members of such categories are impacted disparately by deployment decisions would threaten to create an unmanageable and open-ended legal standard that ultimately slows deployment overall.
Broadband access alone also may not be sufficient to drive greater rates of broadband adoption. For example, Brian Whitacre and his co-authors found that, while the reduced levels of broadband access in rural areas explained 38% of the rural-urban broadband-adoption gap in 2011, differences in other general characteristics—such as income and education—explain “roughly half of the gap.”[36] A report by the U.S. Government Accountability Office concluded that “even where broadband service is available … an adoption gap may persist due to the affordability of broadband and lack of digital skills.”[37] The GAO report notes that nearly one-third of those with access to broadband do not subscribe to it and that “lower-income households have lower rates of home broadband subscriptions.”[38]
The price of broadband services is another significant factor that affects adoption. A National Telecommunications and Information Administration survey of Internet use identified “affordability as a driving factor around why some households continue to remain offline, confirming that cost of service is an essential part of increasing Internet adoption.”[39] The survey reported that the average price that offline households wanted to pay for Internet access was approximately $10 per month, and about 75% of households gave $0 or “none” as their answer. Kenneth Flamm and Anindya Chaudhuri’s empirical research finds that broadband price is a “statistically significant driver” of broadband demand.[40] They conclude that broadband-price declines in the early 2000s explain “some portion” of increased broadband adoption.[41] Victor Glass and Stela Stefanova’s empirical study indicates that higher prices “depress” demand for broadband.[42]
Price sensitivity is closely tied to income. Christopher Reddick and his co-authors concluded that “[i]ncome is a major factor that is likely to influence broadband adoption especially where technology is available.”[43] Glass and Stefanova find broadband service to be a normal good, which means that increased incomes are associated with increased broadband adoption—a finding consistent with previous research.[44] Similarly, the GAO reports: “A recent nationally representative survey by Consumer Reports reported that nearly a third of respondents who lack a broadband subscription said it was because it costs too much, while about a quarter of respondents who do have broadband said they find it difficult to afford.”[45] Alison Powell and her co-authors report that a significant number of low-income Americans engage in a cycle of broadband adoption and “un-adoption,” in which they adopt broadband and then drop it for financial or other reasons, and then re-adopt when circumstances improve for them.[46]
In addition to price and income guiding a household’s broadband-adoption decisions, other factors are also relevant. Tonny Oyana’s empirical research concludes that income, the share of a population who are senior citizens, and the share with some college education are the “three most important demand-side factors” affecting both access and adoption.[47] The GAO reports that “[o]ther barriers include lack of digital skills,” citing a 2016 Pew Research Center report finding that “about half of American adults were hesitant when it comes to new technologies and building their digital skills.”[48]
It can be argued that the gap between broadband access and adoption may present the real digital divide. That is, large numbers of American who have access to broadband do not adopt it, and some who do may “un-adopt” it. While income is a key factor in a household’s adoption choice, it is only one of several important factors, which also include age, educational attainment, and home-computer ownership and usage—each of which is, in turn, also correlated with income. As discussed below, deployment decisions are based on many factors, including a territory’s projected broadband adoption. If firms do not expect sufficient levels of adoption, then deployment may be unprofitable. It would be a mistake to infer that income discrimination in deployment causes low rates of broadband adoption in low-income communities when low income itself—and other factors correlated with income—may be a primary cause of low rates of broadband adoption.
Section 60506 requires the Commission to take account of “issues of technical and economic feasibility.” There is broad consensus that “economic feasibility” here refers to profitability.[49] More precisely, a project is economically feasible if it provides an adequate return on investment (ROI). Like all firms, broadband providers have limited resources with which to make their investments. While profitability is a necessary precondition for investment, not all profitable investments can be undertaken. Among the universe of potentially profitable projects, firms are likely to give priority to those that promise greater returns on investment relative to those with lower ROI. Thus, any evaluation of potential digital discrimination must examine not only whether a given deployment is likely to be profitable, but also how its expected returns compare to other investment opportunities.
Returns on investment in broadband depend on several factors. As noted earlier, population density, terrain, regulations, and taxes are all important cost factors, while a given consumer population’s willingness to adopt and pay for broadband are key demand-related factors.
In addition to these cost and demand factors, the timing of both investment and adoption affect the ROI of a deployment investment. Consider two hypothetical investments, shown in Table I below. Both Deployment A and Deployment B require the same initial investment of $100 million and both ultimately generate the same income of $44 million a year. However, Deployment B has a slower adoption rate. Not only does Deployment B generate lower income over the hypothetical 20-year life of the investment, but its ROI is less than half that of deployment A. While both deployments are profitable and both eventually generate the same annual income, relative to deployment A, deployment B is unprofitable.
Table 1: How Timing Affects ROI in Hypothetical Deployments A and B
Source: Authors
Because the timing of investment returns is critical in a firm’s deployment decisions, local regulations that slow broadband buildout can have significant effects on a deployment investment’s ROI.
By far, population density is widely acknowledged to be the most important cost factor driving broadband-deployment decisions. For example, the GAO reports that population density is the “most frequently cited cost factor” and “a critical determinant of companies’ deployment decisions.”[50]
Academic research supports the GAO’s conclusions. For example, Brian Whitacre and Roberto Gallardo describe population density as one of “the main determinants of Internet availability.”[51] Similarly, Oyana—citing earlier research—concludes that “[l]imited broadband access is common in rural communities because of geographic remoteness and low population density.”[52] Juan Schneir and Yupeng Xiong identify that firms are more likely to deploy broadband in urban and suburban areas, rather than rural areas, due to both cost and demand factors. They note this is “because of the high density of users willing to pay for high-speed broadband services and the relatively low network rollout costs in urban and suburban areas.”[53] Consistent with Schneir & Xiong’s conclusion, the GAO also finds that population density is an important factor on the demand side of deployment decisions. In particular, the GAO concludes that it is more difficult to “aggregate sufficient demand” to pay for broadband service in low-density rural areas.[54]
Several other factors also affect the profitability of broadband-deployment investments. The GAO identifies terrain as an important factor, concluding that “it is more costly to serve areas with low population density and rugged terrain with terrestrial facilities than it is to serve areas that are densely populated and have flat terrain.”[55] The GAO also reports that the cost of “backhaul” can affect broadband deployment to rural areas. “Backhaul” is the cost of routing Internet traffic from rural areas to larger cities in order to connect to a major Internet backbone provider.[56] Whitacre & Gallardo find that state-level broadband-funding programs are associated with a modest increase (1.2–2.0 percentage points) in broadband availability.[57] On the demand side, the GAO reports that “demand will be greater in areas where potential customers are familiar with computers and broadband.”[58]
Population density is also correlated to varying degrees with such demographic factors as income, race, age, educational attainment, and home-computer use. Thus, one should be cautious about inferring digital discrimination based on such factors from deployment decisions that are likely to be based on population density.
As noted above, the evaluation of digital-discrimination claims based on income level is complicated by the fact that income is a key factor—and perhaps the key factor—affecting broadband adoption. Moreover, it is also correlated with race, ethnicity, national origin, age, education level, and home-computer ownership and usage. Adoption of Section 60506 rules that do not recognize this “income conundrum” will invite costly and time-consuming disparate-impact litigation alleging digital discrimination, both where no such discrimination exists and where it is excused by economic-feasibility considerations. The threat of litigation from injudicious rulemaking also may hinder, rather than foster, further broadband deployment.
Randolph Beard and George Ford report:[59]
Survey evidence and empirical research on broadband adoption show that income has a demonstrable effect on demand. Also, empirical research and survey evidence show that some racial minorities—in particular, Hispanic, Black, and Native Americans—are less likely to adopt fixed-service broadband services in the home. Moreover, income is correlated with many factors that affect demand including, among other things, employment, education levels, and housing stability, which makes the determination of “income discrimination” extremely difficult since it is the discriminatory treatment of low-income households, and not these other correlated factors, that is mentioned in the statute. Minority population shares and income levels are also correlated with population density, which affects the cost of network deployment and upgrades. Quantifying “digital discrimination” is, therefore, an extremely challenging endeavor.
In addition to the factors identified by Beard & Ford, income is correlated with several factors associated with broadband adoption. For example, Pew reports that, among lower-income adults:[60]
Some argue that broadband has become more of a necessity over time,[61] akin to utilities for home heating, cooling, and cooking.[62] According to Ryan Finnigan and Kelsey Meagher, low-income households spend approximately half their monthly income on housing and another 10-20% on utilities.[63] The incidence of utility disconnections can provide an indication of ability or willingness to pay for broadband. If a household is more likely to experience a utility disconnection, the household is likely to have a lower ability to pay for a broadband connection. In this sense, broadband disconnections for non-payment can be seen as an extreme form of “un-adoption,” as described by Powell, et al. Diana Hernández and Jennifer Laird’s empirical research on utility disconnections finds that disconnections are correlated with income, education, and home-ownership status, as well as race:[64]
Disconnections are disproportionately high among households with low incomes, a Black head of household, a head who does not have a high school diploma, mobile homes, older homes, poorly insulated homes, rentals, rural homes, and homes in the Northeast. Among those households with an income less than $20,000, nearly 8% have experienced a disconnection—a rate about 2.5 times as high as those with incomes between $20,000 and $59,999.
If a broadband provider determines a given territory is likely to have a low adoption rate or a high “un-adoption” rate, it is likely to conclude that deployment to that locality is less economically feasible than other territories. Empirical evidence suggests that race and income are among the factors associated with broadband adoption and un-adoption. Other factors like population density, education, age, familiarity with computers, and computer ownership are also known to be correlated with race and income and, indeed, race and income are widely known to be correlated with each other. For example, Beard & Ford show that U.S. Census blocks with higher population densities are associated with a higher share of minority residents and lower average incomes. They also report that blocks with a higher share of minority residents have lower fixed-broadband adoption rates and a higher share of mobile-only broadband use.[65]
Beard & Ford attempt to statistically untangle the income conundrum.[66] Their empirical model includes four demand factors for each Census block: fixed-broadband adoption rate, mobile-broadband adoption rate, the share of persons with a tertiary education, and the share of homes with a computer. The model also includes five cost factors: population density, the share of rural blocks within the Census-block group, and three cost categories from CostQuest. Using this information, they evaluate: (1) fiber deployment by race, (2) fiber deployment by income level, (3) download speeds by race, and (4) download speeds by income level. Beard & Ford conclude from their statistical analysis that there is “no meaningful evidence of digital discrimination in either race or income for fiber deployments or for download speeds.” But Beard & Ford is just a single study looking at the possibility of nationwide discrimination. While their approach is rigorous and provides compelling results, it would be challenging to “scale down” the approach to evaluate digital discrimination by firms or locality.
Consider a hypothetical FCC rule mandating that broadband providers must completely exclude income level, race, ethnicity, color, religion, and national origin from their deployment calculus. Instead, firms must rely on their estimates of deployment costs—including population density, terrain, local regulations, and local taxes—and non-protected demand factors, such as population density, education, age, utility-disconnection rates, and rates of computer ownership and usage. This would be one plausible implementation of an intent-based test of digital discrimination under Section 60506. So long as providers’ deployment decisions are not made “because of” any of the protected characteristics, then they would not be found to be practicing digital discrimination. Whether these other factors—education, age, population density, computer usage—are sufficient on their own to determine the economic feasibility of a deployment project is a separate empirical question beyond the scope of this brief.
But because each of these other factors are correlated with income level—and with other protected characteristics—applying an effects-based statistical analysis is likely to produce a false positive concluding the presence of digital discrimination, even when there was an explicit effort to avoid such discrimination. This is a version of Nobel laureate Ronald Coase’s well-known quote: “If you torture the data long enough, it will confess.”[67]
The economics discussed above underscore that the FCC must be particularly cautious when promulgating rules under Section 60506. In particular, the Commission should adopt an intent-based discriminatory-treatment standard, rather than one that opens the doors to disparate-impact claims. The high risk of false positives under a disparate-impact standard would stifle broadband deployment through additional costs, delays, and risk of litigation. Similarly, FCC rules should articulate a presumption of non-discrimination in which allegations of digital discrimination must be demonstrated, rather than a presumption of discrimination that must be rebutted for each deployment decision. Otherwise, given the economic realities discussed above, there is an unacceptably high chance that every one of a provider’s decisions will be subject to challenge, wasting the resources of both the Commission and the providers.
The largest takeaway is that adoption matters quite a bit. Indeed, one of the biggest issues affecting economic feasibility is consumers’ willingness to pay. Moreover, Congress has recognized this reality in its recent legislation. The IIJA’s Broadband Equity and Access program provides more than $42 billion in grants to state programs to help them support providers and give assistance directly to users.[68] The Affordable Connectivity Program provided another $14 billion in funding to help users pay for devices and broadband connections.[69]
If the Commission has good evidence of intentional discrimination in the deployment of broadband, it has a role to play in preventing it. But without strong, compelling evidence of intentional discrimination, the FCC will waste scarce resources chasing bogeymen.
[1] H.R. 3684, 117th Cong. (2021).
[2] 47 U.S.C. § 1754(b).
[3] Notice of Inquiry, In the Matter of Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination, GN Docket No. 22-69 (Feb. 23, 2022), at para. 1 [hereinafter “NOI”].
[4] This issue brief supplements and extends the comments we submitted to the Commission as part of the NOI: Comments in the Matter of Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination, GN Docket No. 22-69, International Center for Law & Economics (2022), accessed at: https://laweconcenter.org/resource/icle-comments-to-the-fcc-on-prevention-and-elimination-of-digital-discrimination.
[5] NOI, supra note 4, at para. 1.
[6] 47 U.S.C. § 1754 [hereinafter “Section 60506”]
[7] Currently defined by the FCC as 25/3 Mbps for terrestrial fixed broadband and 10/1 for mobile broadband. See Fourteenth Broadband Deployment Report, In the Matter of Inquiry Concerning Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, GN Docket No. 20-269 (Jan. 19, 2021), at para. 12 (defining terrestrial fixed broadband), para. 15 (defining mobile broadband) [hereinafter “Fourteenth Broadband Deployment Report”].
[8] NOI, supra note 4, at para. 2 (quoting 47 U.S.C. § 1754(b)(1)).
[9] Id. at para. 3, n. 5; id. at para. 40 (both quoting Executive Order 13985).
[10] Texas Dept. of Housing & Community Affairs v. The Inclusive Communities Project, 576 U.S. 519, (2015).
[11] See, Geoffrey A. Manne, Kristian Stout, & Ben Sperry, A Dynamic Analysis of Broadband Competition: What Concentration Numbers Fail to Capture, ICLE White Paper (June 2021), available at https://laweconcenter.org/wp-content/uploads/2021/06/A-Dynamic-Analysis-of-Broadband-Competition.pdf [hereinafter “ICLE Broadband Competition Paper”].
[12] NOI, supra note 4, at para. 2.
[13] Section 60506, supra note 6, at (b)(1)-(b)(2).
[14] NOI, supra note 4, at para. 22.
[15] Comments of the Joint Advocates on Digital Discrimination, GN Docket No. 22-69 (May 16, 2022).
[16] See Comments of Public Knowledge, GN Docket No. 22-69 (May 16, 2022), pp 7-10; see also, Comments of the Multicultural Media Telecom and Internet Council, GN Docket No. 22-69 (May 16, 2022); Reply Comments of the National Digital Inclusion Alliance, GN Docket No. 22-69 (June 30, 2022).
[17] Ricci v. DeStefano, 557 U.S. 557, 577, (2009).
[18] See, id. (Intentional discrimination cases “present the most easily understood type of discrimination…[that] occur[s] where [a party[ has treated [a] particular person less favorably than others because of a protected trait.”).
[19] Texas Dep’t of Hous. & Cmty. Affs., 576 U.S. at 528–29.
[20] 167 Cong. Rec. 6046 (2021).
[21] 167 Cong. Rec. 6053 (2021).
[22] See, e.g., West Virginia v. EPA, 142 S. Ct. 420, (2021).
[23] Util. Air Regulatory Group v. EPA, 573 U.S. 302, (2014) quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, (1999); see also, West Virginia v. EPA, 142 S. Ct. 420.
[24] Texas Dep’t of Hous. & Cmty. Affs., 576 U.S. at 534.
[25] 42 U.S.C. § 3604(a) (emphasis added).
[26] Texas Dep’t of Hous. & Cmty. Affs., 576 U.S. at 534.
[27] Id.
[28] Id. at 534-35.
[29] Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 350, (2013) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, (2009)).
[30] Id. (citing Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63–64; n. 14, (2007)).
[31] Texas Dep’t of Hous. & Cmty. Affs., 576 U.S. at 533 (emphasis added).
[32] Texas Dep’t of Hous. & Cmty. Affs., 576 U.S. at 521–22 (“Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision. These limitations are also necessary to protect defendants against abusive disparate-impact claims.”).
[33] Id.
[34] Section 60506, supra note 6 (emphasis added).
[35] See, e.g., Ricci, 557 U.S. 557.
[36] Brian Whitacre, Sharon Strover & Roberto Gallardo, How Much Does Broadband Infrastructure Matter? Decomposing the Metro–Non-Metro Adoption Gap with the Help of the National Broadband Map, 32 Gov’t Info. Q. 261 (2015).
[37] U.S. Gov’t Accountability Off., GAO-22-104611, Broadband: National Strategy Needed to Guide Federal Efforts to Reduce Digital Divide (May 31, 2022) [hereinafter “GAO-22-104611”].
[38] Id. See also, How Do Speed, Infrastructure, Access, and Adoption Inform Broadband Policy?, Pew Research Center (Jul. 7, 2022), https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2022/07/how-do-speed-infrastructure-access-and-adoption-inform-broadband-policy (“nearly 1 in 4 Americans do not subscribe to a home broadband connection, even where one is available”).
[39] Michelle Cao & Rafi Goldberg, New Analysis Shows Offline Households Are Willing to Pay $10-a-Month on Average for Home Internet Service, Though Three in Four Say Any Cost is Too Much, National Telecommunications and Information Administration (Oct. 6, 2022), https://www.ntia.doc.gov/blog/2022/new-analysis-shows-offline-households-are-willing-pay-10-month-average-home-internet.
[40] Kenneth Flamm & Anindya Chaudhuri, An Analysis of the Determinants of Broadband Access, 31 Telecomm. Pol’y. 312 (2007).
[41] Id.
[42] Victor Glass & Stela K. Stefanova, An Empirical Study of Broadband Diffusion in Rural America, 38 J. Reg. Econ. 70 (Jun. 2010).
[43] Christopher G. Reddick, Roger Enriquez, Richard J. Harris & Bonita Sharma, Determinants of Broadband Access and Affordability: An Analysis of a Community Survey on the Digital Divide, 106 Cities 102904 (2020).
[44] Victor Glass & Stela K. Stefanova, supra, note 43 at 70.
[45] GAO-22-104611, supra note 37.
[46] Alison Powell, Amelia Bryne & Dharma Dailey, The Essential Internet: Digital Exclusion in Low-Income American Communities, 2 Pol’y & Internet 161 (2010).
[47] Tonny J. Oyana, Exploring Geographic Disparities in Broadband Access and Use in Rural Southern Illinois: Who’s Being Left Behind?, 28 Gov’t. Info. Q. 252 (2011).
[48] GAO-22-104611, supra note 37.
[49] Notice of Inquiry, Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination, GN Docket No. 22-69 (2022) (“If underlying cost or geographic hurdles exist in conjunction with demand in an area that makes it unprofitable, how should the Commission address such a situation?”).
[50] U.S. Gov’t Accountability Off., GAO-06-426, Telecommunications: Broadband Deployment Is Extensive Throughout the United States, but It Is Difficult to Assess the Extent of Deployment Gaps in Rural Areas (May 2006), https://www.gao.gov/assets/gao-06-426.pdf. [hereinafter “GAO-06-426”].
[51] Brian Whitacre & Roberto Gallardo, State Broadband Policy: Impacts on Availability, 44 Telecomm. Pol’y. 102025 (2020).
[52] Tonny J. Oyana, supra note 47 at 252.
[53] Juan Rendon Schneir & Yupeng Xiong, A Cost Study of Fixed Broadband Access Networks for Rural Areas, 40 Telecomm. Pol’y. 755 (2016).
[54] GAO-06-426, supra note 50.
[55] Id.
[56] Id.
[57] Brian Whitacre & Roberto Gallardo, State Broadband Policy: Impacts on Availability, 44 Telecomm. Pol’y. 102025 (Oct. 2020).
[58] GAO-06-426, supra note 50.
[59] T. Randolph Beard & George S. Ford, Digital Discrimination: Fiber Availability and Speeds, by Race and Income, Phoenix Ctr. for Advanced Legal & Econ. Pol’y Stud., Phoenix Ctr. Pol’y Paper No. 58 (September 2022).
[60] Emily A. Vogels, State Broadband Policy: Impacts on Availability, Pew Research Center (Jun. 22, 2021), https://www.pewresearch.org/fact-tank/2021/06/22/digital-divide-persists-even-as-americans-with-lower-incomes-make-gains-in-tech-adoption.
[61] Victor Glass & Stela K. Stefanova, An Empirical Study of Broadband Diffusion in Rural America, 38 J. Reg. Econ. 70 (2010) (“The low price elasticity found in the 2009 study indicates that broadband access has become more of a necessity than it used to be in 2005.”).
[62] Meredith Whipple & Aden Hizkias, We Already Knew Broadband Should Be a Public Utility. The Pandemic Made It Obvious, Public Knowledge (Mar. 15, 2021), https://publicknowledge.org/we-already-knew-broadband-should-be-a-public-utility-the-pandemic-made-it-obvious.
[63] Ryan Finnigan & Kelsey D. Meagher, Past Due: Combinations of Utility and Housing Hardship in the United States, 62 Sociological Persp. 91 (2018).
[64] Diana Hernández & Jennifer Laird, Surviving a Shut-Off: U.S. Households at Greatest Risk of Utility Disconnections and How They Cope, 66 Am. Behav. Sci. 856 (2022).
[65] T. Randolph Beard & George S. Ford, Digital Discrimination: Fiber Availability and Speeds, by Race and Income, Phoenix Ctr. for Advanced Legal & Econ. Pol’y Stud., Phoenix Ctr. Pol’y Paper No. 58 (2022).
[66] Id.
[67] Garson O’Toole, If You Torture the Data Long Enough, It Will Confess, Quote Investigator (Jan. 18, 2021), https://quoteinvestigator.com/2021/01/18/confess.
[68] Broadband Equity, Access, and Deployment Program, BroadbandUSA, https://broadbandusa.ntia.doc.gov/resources/grant-programs/broadband-equity-access-and-deployment-bead-program (last visited Oct. 23, 2022).
[69] Affordable Connectivity Program, Federal Communications Commission, https://www.fcc.gov/acp (last visited Oct. 23, 2022).
ICLE Issue Brief President Joe Biden in November 2021 signed the Infrastructure Investment and Jobs Act. Among other provisions, the law allocated $42.45 billion toward last-mile broadband development, . . .
President Joe Biden in November 2021 signed the Infrastructure Investment and Jobs Act. Among other provisions, the law allocated $42.45 billion toward last-mile broadband development, with the National Telecommunications and Information Administration (NTIA) directed to administer those funds through the newly created Broadband Equity, Access & Deployment (BEAD) program. The BEAD program will provide broadband grants to states, who may then subgrant the money to public and private telecommunications providers.
Serious analysis of the proper roles for government and the private sector in reaching the unserved is a necessary prerequisite for successful rollout of broadband-infrastructure spending. Public investment in broadband infrastructure should focus on the cost-effective provision of Internet access to those who don’t have it, rather than subsidizing competition in areas that already do.
Read the full checklist here.
Scholarship Abstract Between 2016 and 2019, two proposed mergers captured much of the attention and resources of the Department of Justice, Antitrust Division (DOJ). The first . . .
Between 2016 and 2019, two proposed mergers captured much of the attention and resources of the Department of Justice, Antitrust Division (DOJ). The first was the vertical merger of AT&T Inc. and Time Warner Inc.—a merger of a communications, media, and content distribution company (AT&T) with a content provider (Time Warner). The second was the horizontal merger of Sprint and T-Mobile—a merger of two mobile telephone companies. In general, vertical mergers are reviewed with greater leniency than horizontal mergers because the latter, by definition, eliminate a competitor in the relevant marketplace, which is not a concern with the former. Moreover, merger-specific efficiencies may be easier to demonstrate when a company merges with another company in its own supply chain. Even so, the DOJ challenged the vertical merger of AT&T and Time Warner but permitted (with conditions) the horizontal merger of Sprint and T-Mobile. As this Article sets forth, these seemingly distinct mergers were destined to be linked.
Even though the DOJ unsuccessfully blocked the AT&T-Time Warner merger, the companies are separating again only a few short years after finalizing their merger. The stated reason for the unwinding is arguably linked to the DOJ’s decision to permit the Sprint-T-Mobile merger. The competitive pressure created by the joined mobile telephone company—T-Mobile—has pressured AT&T to invest further in its own mobile telephone business. In other words, the DOJ’s initial fear, that the merged AT&T could use theoretical market power to anticompetitively charge higher consumer prices and raise rivals’ costs in content distribution, was never realized. In contrast, the DOJ’s humility in assessing potential efficiencies for a merged T-Mobile in the growing 5G mobile telephone market is already paying competitive dividends. The tale of these two mergers, therefore, provides interesting insights into modern merger review policies.
ICLE Issue Brief President Joe Biden has made broadband build-out part of his Build Back Better plan, arguing that it constitutes essential infrastructure, much like electricity and water. . . .
President Joe Biden has made broadband build-out part of his Build Back Better plan, arguing that it constitutes essential infrastructure, much like electricity and water. The plan calls for $100 billion in subsidies for “future-proof” broadband—that is, connection modes that are expected to meet, or can be readily upgraded to meet, future connectivity needs—with a particular focus on municipal broadband and other nonprofit Internet service providers (ISPs). Congress also has taken up the question of broadband subsidies as part of its ongoing debate over infrastructure spending. But while it is important to get subsidies right, the most expedient public-policy change to ensure greater deployment and adoption of broadband would be to reform policies that needlessly impede the construction and efficient operation of broadband services.
Broadband connectivity continues to be a top priority for the Federal Communications Commission (FCC) and for state and local governments. But to build out wireline broadband, ISPs need access to poles, many of which are owned by electric cooperatives, utilities, and municipal governments. Unfortunately, these entities can charge exorbitant prices to access the necessary inputs. Moreover, the cost to replace, repair, and improve these poles is frequently offloaded onto ISPs and other attachers. These practices drive up the cost to deploy broadband, leading to slower deployment and higher prices for consumers.
The more expensive deployment becomes, the more difficult it is for providers to realize sustainable profits on those investments. This dynamic invariably leads to more selective use of scarce resources, to the detriment of costlier, less-profitable rural deployment. The challenge confronting policymakers and industry alike is how best to equitably and cost-effectively allocate the expenses associated with pole attachments.
The FCC has authority under Section 224 of the Communications Act to review the rates charged for pole attachments to ensure that they are “just and reasonable.” Pursuant to that authority, the FCC recently found that “utilities throughout the country have disparate and inconsistent practices with regard to cost responsibility for pole replacements.” The FCC also declared it unreasonable for utilities to “impose the entire cost of a pole replacement on a requesting attacher when the attacher is not the sole cause of the pole replacement.”
In order to facilitate greater broadband deployment, the FCC should consider rulemaking governing how to allocate pole-replacement costs more equitably. States should also reform how the costs of upgrades are distributed when municipal governments and electric cooperatives own the poles.
Read the full issue brief here.
ICLE White Paper The instinct to promote broadband network buildout is understandable, but precisely how that infrastructure funding is deployed will determine whether such proposals succeed or fail.
The 117th Congress is considering whether to devote significant federal resources toward promoting broadband access in underserved communities. Legislative proposals to do so include President Joe Biden’s draft American Jobs Plan—a $2.3 trillion budget-reconciliation package that sets aside $100 billion for broadband infrastructure. They also include the Accessible, Affordable Internet for All Act, which would create a $79.5 billion federal program.
The instinct to promote network buildout is understandable, particularly in the wake of the COVID-19 pandemic and the various socioeconomic disparities it highlighted. But precisely how that infrastructure funding is deployed will determine whether such proposals succeed or fail.
In fact, the U.S. broadband market is already healthy, and in most cases, competitive outcomes are close to optimal. Charges that broadband markets are dominated by monopolies or oligopolies and that they are therefore stagnant, over-priced, and of low quality do not comport with the empirical and economic realities. To take but one example, even with the overall rise of prices across the economy, and in the face of surging demand during the COVID-19 pandemic, U.S. broadband prices fell.
Concentration is a poor predictor of competitiveness, and broadband markets with even a small number of competitors can be—and are—quite healthy. Indeed, the multi-year, multi-billion-dollar investment plans broadband firms execute—amid constant pressure from alternative modes of Internet access like 5G, fixed wireless, and satellite—tell the story of a highly competitive, dynamic market.
To be sure, there are a few areas where there has been no meaningful wireline broadband buildout: Approximately 4.4 percent of the U.S. population does not have access to at least 25/3 Mbps fixed service. Even then, however, many of those areas are served by wireless Internet service providers (WISPs), cellular broadband, and/or satellite service.
But while the digital divide—both rural and urban—may be real, that fact alone does not justify wholesale intervention into broadband markets. Instead, the actual scope of the problem should be assessed, and policies tailored to remedy specific needs. The policies required to reach that stubborn 4.4 percent tail of broadband rollout are likely to be very different than those that facilitated the buildout of the first 95.6 percent.
Policies designed to close the digital divide should have two broad features: they should reach consumers where they are, and they should not disrupt the otherwise healthy broadband market. Reaching consumers where they are means targeting subsidies directly to consumers to make it more viable for existing providers to build out into new areas. Such policies should be technology-neutral and designed to stimulate demand to jumpstart markets that have otherwise proven too costly for any provider to enter. Avoiding disruption of healthy markets entails refraining from interventions that artificially introduce new competitors, skew investment planning by broadband providers, or dictate how and where providers should build networks.
There is much that can be done to encourage better and timelier broadband rollout, but not all solutions are equally effective. As we detail below, policymakers must choose carefully among competing options to realize the best possible result.
This paper aims to address common misconceptions associated with broadband competition that, in turn, undercut practical solutions for connecting the unconnected. It first details some of those misconceptions and contrasts them with the realities of current broadband markets. It then provides an overview of how to properly understand healthy competition in local broadband markets. It then provides a critique of commonly advanced proposals that are based on fundamental misunderstandings of how broadband markets work. And finally, it offers an approach to policy that incorporates a variety of solutions for connecting the unconnected.
Read the full white paper here.
* NOTE: Section 1.b was updated July 13, 2021, to reflect feedback regarding the paper’s interpretation of certain relevant economic studies.
ICLE Issue Brief The COVID-19 pandemic has highlighted the resilience of U.S. broadband infrastructure, the extent to which we rely on that infrastructure, and the geographies and communities . . .
The COVID-19 pandemic has highlighted the resilience of U.S. broadband infrastructure, the extent to which we rely on that infrastructure, and the geographies and communities where broadband build-out lags behind. As the extent and impact of the digital divide has been made clearer, there is renewed interest in the best ways to expand broadband access to better serve all Americans.
At ICLE, we would caution policymakers to eschew calls to address the digital divide simply by throwing vast sums of money at the problem. They should, instead, pursue a principled approach designed to encourage entry in new regions, while avoiding poorly managed subsidies and harmful price controls that would discourage investment and innovation by incumbent internet service providers (ISPs). Here is how to do that.
Read the full brief here.
Scholarship The Internet is a fabulous means of communication. However, the Digital Fuel Monitor by Rewheel/research is a prime example of misinformation on the Internet
By
The dissemination of false information online has become a serious challenge. Adding to this problem are the false claims put forth by Rewheel.
The Internet is a fabulous means of communication. However, the Digital Fuel Monitor by Rewheel/research is a prime example of misinformation on the Internet.[1] To curb the spread of false information, social media platforms have started applying warning labels to content they believe the facts do not support. Still, far too many false claims have attracted attention because separating fact from fiction on the Internet often requires a specific expertise. In this paper, the authors apply their expertise about mobile wireless markets to expose the false claims put forth by Rewheel/research in the recent publication of its Digital Fuel Monitor. We find the Rewheel rankings to lack academic rigor owing to an unsuitable analytical concept, unrealistic assumptions, and the omission of marketplace realities. Counterintuitive results confirm the rankings’ ineptness.
Rewheel, a Finnish consultancy, periodically issues reports that it portrays as international competitiveness comparisons of retail prices for mobile wireless services across the globe; however, these comparisons are not accurate representations of the state of competition in the mobile wireless world. In these reports, Rewheel assigns providers and countries international ranks and various competitive labels. For example, Rewheel ranks a country with alleged high prices a laggardand considers itleast competitive. Conversely, countries that Rewheel views favorably obtain a most competitive ranking. As with much of the information on the Internet, Rewheel follows the freemiummodel. That is, it publishes attention grabbing headlines and some colorful charts for free, but anyone seeking to understand more about the derivation of the data must pay Rewheel’s fees for the full content.
Mirroring much of the free content on the Internet, Rewheel’s rankings are unscientific and erroneous. Unfortunately, this contributes to the spread of misinformation about the state of competition in mobile wireless markets. Rewheel should be subject to the same warning labels as those placed on other suspicious information. Before turning to the shortfalls of the Rewheel rankings, we highlight that valid inferences regarding the competitiveness of mobile wireless service provisioning in a country cannot be made from a simple, unadjusted ranking of international prices. Countries differ in many aspects including network quality, consumer preferences, income, regulatory and legal environment, factors of production costs, and market size. These and many other differences among jurisdictions contribute to price variations. A proper international comparison considers these factors and compares the value proposition not simply prices.
In its recent ranking exercise, Rewheel ranks providers and countries by purportedly averaging the retail prices of 10 retail service plans. The 10 plans include five smartphone plans on 4G or 5G networks with varying levels of voice allowances, data allowances, and download speeds. Rewheel also includes three mobile broadband data-only plans and two home broadband (fixed wireless) plans. This exercise finds an average of €109 (US$127) for Canadian mobile wireless providers TELUS, Bell, and Rogers. Rewheel sweepingly declares that these providers offer “the least competitive monthly prices.”[2] With an average price of €29 (US$34), Finnish provider Elisa wins Rewheel’s distinction of offering “the most competitive … monthly prices.”[3] The Rewheel story is easy to understand. It is also completely wrong.
Rewheel bases its rankings on a meaningless concept that offers no economic market insights.
Comparing the prices of a collection of products (baskets) is not new. Prior to the introduction of the Internet, analysts used basket prices to compare supermarket prices. That is, they compared the costs of identically filled shopping carts across supermarkets. However, Rewheel’s application of the basket method is not appropriate for comparing prices of different mobile wireless services. Rewheel created its own version of the basket method that includes the calculation of meaningless averages, random combinations of different services, improper assumptions, and factual errors. Not surprisingly, as evidenced by the results derived by Rewheel, the rankings are incorrect and counterintuitive. We find Rewheel’s rankings are of no value in comparing prices and assessing the level of competition in wireless markets.
Comparing total grocery bills for two identical shopping carts from two different supermarkets might be a rational approach. However, knowing the average price of the items in the shopping cart clearly is useless especially when including a wide range of items. Nevertheless, Rewheel does just that – it compares average prices across varying items (in this case services). Knowing that the average price of a certain T-Mobile USA smartphone, tablet, and home Internet plan is €106 (US$125) is about as useless as knowing that the average price per item in a shopping basket containing a six-pack of beer, a dozen eggs, and a pound of oranges is US$10.
Rewheel’s assumptions are unsupported and create distorted rankings. Rewheel mixes prices from different providers and ignores market realities.
Rewheel does not explain why it would make sense to take the average of five smartphone plans, three data-only plans, and two wireless home Internet plans. Grocery bills are the sum of all items purchased at the supermarket. Presumably, consumers need all these items in their daily life. As such, the total grocery bill measures the household expenditure for food. Rewheel’s basket, however, does not represent anything. It does not represent an individual’s spending for mobile wireless services because subscribers do not need five smartphone plans. Subscribers also do not rely heavily on wireless home Internet access. Instead, the more prevalent means to access the Internet is through fixed broadband services offered by landline telephone and cable TV companies. Yet, fixed broadband services are missing from Rewheel’s basket. Thus, the average of Rewheel’s eclectic mix of services is meaningless. It certainly does not represent a consumer’s wireless spending, and it does not represent the average price of a particular service. Rather, the Rewheel basket is a mix of substitute and complementary items. Moreover, Rewheel’s basket overlooks an important item (fixed broadband) on a consumer’s shopping list.
The must-carry assumption. Rewheel assumes that in order for markets to be competitive all providers in the world mustoffer all 10 service plans in its basket. If a provider does not offer a specific plan, then that provider is “assigned the highest monthly price among all 168 operators.”[4] For example, per Rewheel, Vodafone in India does not offer a fixed wireless broadband plan with at least 1,000 GB of data and download speeds of 100 Mbps or faster. Therefore, under the must-carry assumption, Rewheel artificially increases Vodafone India’s price average by loading it with the highest observed international value for this plan. In this case, the highest monthly price that Rewheel found belongs to a provider in the United Kingdom by the name of EE Limited (formerly Everything Everywhere). Thus, Vodafone India’s average includes a plan price from the United Kingdom. Rewheel applies this exact price to no less than 133 of the 168 providers (79 percent) in its ranking.
Rewheel’s irrational assumption is akin to imputing that the price of buffalo meat in a vegetarian supermarket is the same as the price of the most expensive buffalo meat vendor in the world. There is no economic or statistical support for this approach. In fact, in some countries, Rewheel’s must-carry plans cannot even be offered because the regulator has yet to release 5G spectrum. Rewheel’s baseless assumption renders the comparison useless because the average price by which providers and countries are ranked is not composed of retail prices faced by subscribers in the respective markets.
The non-specialization assumption. Rewheel’s ranking unrealistically assumes that for a provider (and thus the market) to be competitive it must not specialize but must offer and compete on all plan levels selected by Rewheel. This assumption is counter to basic economic principles.
A rational business enterprise introduces service plans for the express purpose of earning positive economic profit. Based on this objective, an enterprise derives a strategy that determines its retail offerings. Unlike Rewheel’s assumption, this does not mean that all competing enterprises offer the same services. Quite the contrary, competitors seek to distinguish themselves from their peers through price and non-price service attributes and by offering new and innovative services to gain a competitive advantage.
Consider, for instance, Freedom Mobile Inc., a Canadian regional mobile wireless provider owned by Shaw Communications, a Canadian cable provider. Freedom does not offer fixed wireless broadband services. Rewheel incorrectly deduces from this observation that Freedom’s offerings are not competitive. Freedom is a profit-maximizing firm; therefore, its decision not to offer fixed wireless services is simply an indication that the service does not align with the company’s strategic blueprint. Freedom finds that it can best compete by specializing in offering mobile wireless services in select regions of Canada. Rewheel’s approach also overlooks service providers that mainly specialize in fixed wireless broadband, like Xplornet, which is not listed among Canada’s providers.
The standalone assumption. Rewheel incorrectly assumes that consumers demand and are supplied with standalone only plans. In Rewheel’s ranking system, there is no demand for bundled service plans where a consumer purchases mobile wireless service along with TV, fixed Internet, or fixed telephony services. However, in reality, many subscribers bundle their services and thereby receive discounts on mobile wireless and broadband services. Relatedly, mobile wireless providers offer bundled services to competitively distinguish themselves. For instance, AT&T offers free HBO Max subscriptions to some of its customers.[5] By ignoring bundled offerings and discounts, Rewheel overstates actual consumer expenditures.
The no-sharing assumption.The Rewheel ranking exercise also contains the untenable assumption that the increment of demand is always one mobile phone line and never more, which is false. For instance, AT&T offers unlimited plans starting at US$30 “when you get 5 lines.”[6] Rewheel ignores this US$30 price point. Instead, it uses a US$65 price point, which is AT&T’s lowest price for an unlimited plan with a single line.[7] Yet, as of 2015, an estimated 68 percent of US subscribers were part of a shared or family plan.[8] By ignoring the fact that subscribers purchase in increments of more than one line, Rewheel significantly overstates US prices.
Specifically, instead of the US$65 price assumed by Rewheel, the average price of AT&T’s cheapest unlimited plan is closer to US$41.[9] For this example alone, Rewheel’s assumption results in an overstatement of prices by 58 percent. The popularity of shared plans in the United States is not the exception. In Canada, approximately half of mobile wireless subscribers purchase a plan shared with others.
The price-only assumption.Rewheel’s incorrect ranking assumes that consumers only care about price and not what they get in exchange for their money. In building its average, Rewheel looks for the price of the cheapest plan that meets or exceeds its selection criteria.[10] The plans offered by different providers exceed the selection criteria by different amounts. Yet, Rewheel ignores this fact and creates an apples-to-oranges comparison where consumers do not care about anything but price. Omitting the value of additional minutes, data allowances, or faster download speeds is not realistic.
A real-world example illustrates the consequences of this baseless assumption. Koodo is a mobile wireless provider in Canada that is part of the TELUS family of brands. The cheapest Koodo plan that meets Rewheel’s criteria for its first plan (i.e., Smartphone: 4G&5G, 100 mins, 1 GB, 1 Mbps) is a plan priced at US$22.[11] Now, consider the Irish mobile wireless provider called 3 whose plan meets or exceeds the same Rewheel criteria and is priced at US$17.[12] Rewheel heralds 3 as a cheap provider and labels TELUS as “least competitive.”[13] Table 1 provides the details of these two plans.
As the table reveals, for an additional US$5 per month (not withstanding other differences), Koodo offers download speeds that exceed those offered by 3 by a factor of over four. By ignoring non-price service attributes, Rewheel assigns a least competitive label on Koodo and a most competitivelabel on 3, thereby incorrectly assuming that consumers do not care about network quality and that they would not be willing to pay for a higher speed. Presumably, Rewheel would also argue that consumers are not willing to pay more for high-grade Japanese wagyu beef than they would pay for a cheaper cut of beef.
The cost-equality assumption.Rewheel also ignores that building a network costs money. Rewheel unrealistically assumes that building a network in Finland (which Rewheel highlights as a competitive market) costs the same as building a network in Canada (which Rewheel highlights as a noncompetitive market) even though Finland has a population one-sixth the size of Canada and a landmass one twenty-ninth the size of Canada. Finnish mobile wireless providers also pay about 90 percent less for radio spectrum relative to their Canadian peers.[14] For a business enterprise to remain viable, it must recover its costs and earn a competitive return. Because all providers face buildout and spectrum costs, they are reflected in the retail prices for mobile wireless services. Yet, in Rewheel’s utopian world, all providers face the same costs.
Rewheel’s results are counterintuitive and confirm that a flawed concept and unreasoned assumptions guarantee incorrect findings.
The counterintuitive results.Two simple examinations demonstrate that Rewheel’s results are incorrect and offer no economic insight. First, we retraced Rewheel’s construction of the ranking average for one mobile wireless provider, that is, TELUS, a mobile wireless provider in Canada, which offers three brands – TELUS, Koodo, and Public Mobile. Examining the websites of the TELUS family of brands reveals that across the three brands TELUS only offers two of the 10 specific plans that Rewheel uses for its average. Specifically, as shown in Table 2, Koodo offers a plan at US$22.33 that meets and exceeds the first Rewheel plan (i.e., Smartphone, 4G&5G, 100 minutes, 1 GB, 1 Mbps). Koodo also offers a plan at US$55.81 that meets and exceeds the second Rewheel plan (i.e., Smartphone, 4G&5G, 1000 minutes, 10 GB, 10 Mbps). The TELUS brands do not offer any of Rewheel’s other eight specific plans although TELUS offers many other plans.
Rewheel ignores the fact that it misses 80 percent of the sample and simply substitutes the missing data points with “the highest monthly price among 168 operators.”[15] The data provided by Rewheel in its free Public Version on the Internet does not disclose what prices it used in every instance where a provider did not offer a plan. However, it is possible to ascertain that for the ninth plan (i.e., fixed wireless broadband plans with at least 1,000 gigabytes and 100 Mbit/s peak speed) Rewheel used US$88.37, which is the price for the most expensive plan that Rewheel found for this plan type. EE Limited in the United Kingdom supposedly offers this plan. For the sixth sample plan, Rewheel blends a price point of US$116.28 from Rogers, another Canadian mobile wireless provider, into TELUS’ average.
As the TELUS example demonstrates, Rewheel’s ranking is pure fiction. Aside from its theoretical failings and the fact that it misses the plans purchased by 50 percent of Canadians, Rewheel observes only two data points for TELUS, which average €34 (US$39). Based on Rewheel’s ranking, an average of €34 would put TELUS in third place out of 168 providers, which would appear to make it one of the most competitive mobile wireless providers in the world. However, Rewheel reports TELUS’ average at €109 (US$127), which is purely an artifact of Rewheel’s methodology that assigns TELUS the highest price for eight out of 10 sample plans – plans that TELUS does not even offer.
Second, in Rewheel’s world where only price matters, one would not expect providers with the most competitive monthly prices to be in the same market as providers with the least competitive prices. The reason for this is simple. Like any other rational economic agent, subscribers would not select a more expensive plan over an identical but less expensive plan. However, the myriad of unreasonable assumptions in Rewheel’s ranking produces this counterintuitive result.
Consider the case of Romania where Rewheel calculates average prices of US$69, US$70, US$122, and US$123 for Orange, Vodafone, RCS-RDS, and T-Mobile, respectively. In the same order, per Rewheel, these prices would rank the four providers as 23, 25, 141, and 146. This ranking presumably offers Orange and Vodafone a label of most competitive, whereas RCS-RDS and T-Mobile are least competitive. If the Rewheel price-only world were accurate, RCS-RDS and T-Mobile would not have sustainable business cases because Orange and Vodafone allegedly offer better prices and thus would attract all market demand. Nevertheless, the actual market shares in Romania tell a different story. RCS-RDS and T-Mobile have market shares of 12.6 percent and 18.7 percent, respectively.[16] It is counterintuitive that two alleged highly uncompetitive providers would attract about one-third of the country’s subscribers. We observed similar anomalies in other countries, including Finland, Switzerland, the United States, and the UK. These economic anomalies are prima facie evidence that Rewheel’s results are incorrect.
Rewheel’s Digital Fuel Monitor needs a warning label.
The warning label. Given the many theoretical and practical flaws and errors contained in the Rewheel study, we find it of no value when comparing prices internationally or establishing the level of competition in a country. A warning label informing readers about the lack of intellectual rigor and the misleading and incorrect nature of the Rewheel study’s results is appropriate and recommended.
[*] NERA Economic Consulting received financial support from TELUS Communications Corporation for the research and initial drafting of this paper. No other authors received compensation. All views expressed are those of the authors.
[1] See Rewheel/research, “4G&5G connectivity competitiveness 2020,” Digital Fuel Monitor, Rewheel research PRO study (Public Version), November 2020 (hereinafter Rewheel).
[2] Ibid, p. 1.
[3] Ibid.
[4] Ibid.
[5] See AT&T “Stream HBO Max with some AT&T unlimited plans,” https://www.att.com/support/article/wireless/KM1261921/.
[6] See AT&T Wireless Plans, https://www.att.com/plans/wireless/.
[7] Ibid.
[8] See Pew Research Center, “U.S. Smartphone Use in 2015, Chapter One: A Portrait of Smartphone Ownership,” p. 2.
[9] 30*0.68+65*0.32 = 41.20.
[10] For example, Rewheel collected “4G&5G mobile broadband plans with at least 100 gigabytes and 50Mbit/s peak speed” plans. (Rewheel, p. 3, (emphasis added).)
[11] See Koodo Prepaid Plans, https://www.koodomobile.com/prepaid-plans?INTCMP=KMNew_NavMenu_Shop_PrepaidPlans. Rewheel 2H 2020 State of Broadband Pricing, October 2020, p. 18.
[12] See 3 Prepay Plans, https://www.three.ie/buy/prepay.html#prepay-phone-plans; see also Rewheel 2H 2020 State of Broadband Pricing, October 2020, p. 18.
[13] Rewheel, p. 1.
[14] See Richard Marsden, Dr. Bruno Soria, and Hans-Martin Ihle, “Effective Spectrum Pricing: Supporting better quality and more affordable mobile services,” GSMA, February 2017, Figure 13.
[15] Rewheel, p. 11.
[16] Shares are for third quarter 2019 just prior to Rewheel’s data collection. (See TeleGeography, Country Profile, Romania, as of November 9, 2020, p. 32).
