Muni, Broadband Interests Clash Over Mediacom Opposition to Google Fiber Deal
Municipal interests are on one side, telecom interests largely on the other, over a Mediacom petition seeking FCC preemption of a deal between Google Fiber and West Des Moines, Iowa, on constructing a conduit network to provide broadband in unserved parts of town, per comments last week in docket 21-217.
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Muni interests repeatedly argued that the agency has classified broadband as an information service, outside the purview of Section 253 of the Communications Act, which preempts state or local barriers to telecom service entry. State and local governments will look at what the FCC decides for guidance on the boundaries for deployment of publicly funded conduit networks in the future, ACA Connects said. Mediacom also sued the city in Iowa District Court over the Google Fiber deal (see 2012100030).
Mediacom's petition "is nothing more than an entrenched incumbent’s attempt to stifle competition from new entrants and the availability of new high-speed broadband services in West Des Moines," the city said. It said the FCC defined broadband as an information service, not a telecom service, and Mediacom hasn't made any claim about offering a telecom service that would be affected by the city's conduit network, so its complaint falls outside Section 253.
The petition "potentially undermines a range of local efforts to bridge the digital divide [while] stretch[ing] the boundaries of Commission authority beyond any conceivable reading of Section 253(d)," said NATOA, U.S. Conference of Mayors, National League of Cities, National Association of Counties and National Association of Towns and Townships. The FCC can't force abandonment of public infrastructure projects or rewriting of agreements, they said. They said Mediacom argues Section 253 applies to broadband services, but it doesn't cite authority supporting that and ignores that the FCC has never used a Section 253 petition to preempt a broadband regulation like the conduit project.
The Colorado Communications and Utility Alliance also opposed the Mediacom petition. An FCC decision "that tramples on local decision-making could undermine collaboration potential with new market entrants," said Next Century Cities.
West Des Moines' building its own conduit network encourages the private sector to bring service to residents, advancing Section 253's goal, Google Fiber said. Rather than being exclusive to Google Fiber in its design, the conduit network is inherently multiuser, accommodating the facilities of other licensees, it said. The agreement expressly anticipates other users after a six-month period for Google Fiber to test the network, it said. Opposing the petition, Incompas said Mediacom's petition and court challenge are part of a broader pattern of incumbents trying to elbow out competitive entrants to a market. Mediacom doesn't show how the city’s interest in expanding residents' broadband choices violates Section 253.
That six-month exclusivity creates a catch-22 situation, said Lumen, which provides ILEC service in West Des Moines. The conduit network is designed to Google Fiber specifications that make it less usable by other providers, making it unlikely Lumen can use the network, but without access, it can't compete with Google Fiber in parts of the city, Lumen said.
The Mediacom petition raises concerns that the city acted against Section 253 by giving preferential rates, terms and conditions to one provider, said ACA Connects. It said the FCC should scrutinize under what circumstances public funding and construction of an “open access” conduit network by state or local government should be presumed to be consistent with Section 253 and how to determine whether the local government is providing preferential or discriminatory treatment. State or local government building a genuinely “open access” conduit network that allows deployment in a neutral and nondiscriminatory manner should be applauded, but tipping the scales in favor of a particular provider needs preempting, it said. The Wireless ISP Association said the Google Fiber deal discriminates against other providers and potentially new entrants. The six months of exclusive use Google Fiber will have is exactly what Section 253 is trying to prohibit, WISPA said.
The Fiber Broadband Association took no stand on the petition, but said the FCC should decide state and local governments don't violate Section 253 if the financing and construction results in a conduit network in the public right of way that is compatible with telecom services as long as other telecom service providers can access the rights of way in a neutral and nondiscriminatory way. Distributed network system builder and operator ExteNet Systems said the FCC should use the Mediacom petition to set standards for what constitutes access to public rights-of-way and what constitutes a competitively neutral and nondiscriminatory basis for use of them, as Section 253 requires.