FCC can define markets with only one ISP as "competitive," court rules

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Dewayne Hendricks <dewayne () warpspeed com>
> Date: August 30, 2018 at 10:10:36 PM EDT
> To: Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>
> Subject: [Dewayne-Net] FCC can define markets with only one ISP as "competitive," court rules
> Reply-To: dewayne-net () warpspeed com
>
> [Note:  This item comes from friend Ed DeWath.  DLH]
>
> FCC can define markets with only one ISP as “competitive,” court rules
> The FCC can "choose which evidence to believe," court says.
> By Jon Brodkin
> Aug 29 2018
> <https://arstechnica.com/tech-policy/2018/08/fcc-can-define-markets-with-only-one-isp-as-competitive-court-rules/>
>
> An appeals court has upheld a Federal Communications Commission ruling that broadband markets can be competitive even 
> when there is only one Internet provider.
>
> The FCC can "rationally choose which evidence to believe among conflicting evidence," the court ruling said.
>
> The FCC voted last year to eliminate price caps imposed on some business broadband providers such as AT&T and 
> Verizon. The FCC decision eliminated caps in any given county if 50 percent of potential customers "are within a half 
> mile of a location served by a competitive provider."
>
> This is known as the "competitive market test." Because of this, broadband-using businesses might not benefit from 
> price controls even if they have just one choice of ISP.
>
> The FCC decision was challenged in court by Competitive Local Exchange Carriers (CLECs) and purchasers of business 
> broadband, including Sprint and Windstream. But the FCC order was mostly upheld yesterday in a ruling by the US Court 
> of Appeals for the 8th Circuit.
>
> The court said that the FCC provided adequate notice to the public before making most of the changes in the 
> deregulation order. The court also rejected challenges to the economic theory and merits of the FCC's competitive 
> market test.
>
> The FCC's decision to lift price caps affected Business Data Services (BDS), which are dedicated, point-to-point 
> broadband links delivered over copper-based TDM networks by incumbent phone companies like AT&T, Verizon, and 
> CenturyLink. The decision affects prices paid by customers including businesses, government agencies, schools, 
> libraries, hospitals, and wireless carriers.
>
> The FCC and petitioners disagreed over whether it's generally economically viable for CLECs to expand their networks 
> to locations within a half-mile.
>
> "The dispute here is whether the evidence shows that the CLEC [Competitive Local Exchange Carrier] Petitioners cannot 
> economically build out to low-bandwidth customers in areas deemed competitive by the Competitive Market Test," judges 
> wrote. "The FCC did not believe the CLEC Petitioners' evidence, and the CLEC Petitioners protest that the evidence 
> compels a finding in their favor."
>
> The FCC "cited evidence that some competitors will build as far as a mile out," and said that "most of the buildings 
> at issue are far closer to competitive fiber than half a mile," the court ruling noted.
>
> While petitioners presented data suggesting that it isn't generally economically feasible to expand networks, the FCC 
> argued that "the CLEC Petitioners' studies inflate costs by selecting the most expensive build (entirely underground 
> lines), presuming a separate lateral line for each individual low-bandwidth customer, and treating the main fiber 
> ring as part of the cost of reaching new customers rather than as an existing 'sunk' cost near a potential new 
> customer," judges wrote.
>
> Judges concluded that the evidence in support of both arguments is credible and that the FCC can decide which one it 
> wants to believe:
>
> [snip]
>
> Dewayne-Net RSS Feed: http://dewaynenet.wordpress.com/feed/
> Twitter: https://twitter.com/wa8dzp



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