ATTACHMENT A Network Neutrality Rules in Comparative Perspective: A Relatively Limited Intervention in the Market January 2010 Prepared for : CCIA By: Kip Meek & Robert Kenny Ingenious Consulting Network 1 Contents 1. Executive Summary .......................................................................................................3 2. Regulatory objectives.....................................................................................................4 Promote universal service/ access ............................................................................4 Foster competitive markets ......................................................................................5 Promote public confidence and protect consumer rights ..........................................6 Encourage investment and innovation......................................................................7 Optimise use of scarce resources..............................................................................8 Minimise the burden and costs of regulation............................................................8 Ensure security of supply ..........................................................................................9 Non-US regulatory objectives .................................................................................10 Conclusion..............................................................................................................10 3. Regulatory approaches to bottlenecks .........................................................................11 Open access interventions......................................................................................12 Separation interventions ........................................................................................17 4. National regulatory choices .........................................................................................23 Strong existing inter-modal competition.................................................................24 Competition from new technologies.......................................................................27 Low and falling broadband prices ...........................................................................30 5. Conclusions .................................................................................................................33 6. Appendix .....................................................................................................................34 7. About the authors........................................................................................................42 2 1. Executive Summary This paper seeks to put the US network neutrality debate into the wider international regulatory context, and in particular to investigate the underpinnings of the differences in approach in different countries. From an international perspective, the US’s Federal Communications Commission’s (FCC) proposal to create enforceable non-discrimination rules for Internet access providers is a highly limited intervention. The rest of the developed world generally has imposed much more significant interventions to regulate telecoms bottlenecks, and many consider these regulations as providing important checks on discriminatory behaviour by access providers. In this way, the current US debate is very narrowly framed, even though the objectives and market context of the US authorities are not fundamentally different from elsewhere in the world. In chapter 2, we consider the objectives of regulators around the world. Our finding is that there is in fact great commonality in the stated objectives of NRAs1, including in the US. Virtually all regulators seek to: promote universal access; foster competitive markets; protect consumer rights; encourage investment; optimise the use of scarce resources; and minimise the burden and costs of regulation. While there are also some examples of important differences, it is clear that the variation in telecoms regulatory actions around the world is not driven by having fundamentally different objectives. In chapter 3, we turn our attention to the range of options available to regulators to achieve their objectives in the context of bottleneck assets. We consider the range, from the mildest intervention (for example, network neutrality regulations) through to the strongest (full structural separation of the access network), and look at the rationale for and risks of each. In chapter 4, we look at the drivers of the different choices made by NRAs from amongst these intervention options. In particular, we consider the US environmental factors that are often used to argue against the need for any intervention in America. Our finding is that while these factors are not necessarily universal (such as the existence of inter-modal competition) outside the US, they are certainly present in very many member countries of the Organisation for Economic Co- Operation and Development (OECD) and many of these countries have nonetheless gone down much more interventionist paths. In chapter 5, we conclude that the US appears to be virtually unique amongst developed economies in its approach to bottleneck regulation, and that this uniqueness neither appears to be based on a fundamentally different set of regulatory objectives, nor on an exceptional set of market circumstances. 1 National Regulatory Authorities 3 2. Regulatory objectives There are a number of recurring objectives in US telecoms regulation, which drive decisions at both national and state levels. These objectives are to: 1. Promote universal service/ access 2. Foster competitive markets 3. Promote public confidence and protect consumer rights 4. Encourage investment and innovation 5. Optimise use of scarce resources 6. Minimise the burden and costs of regulation These six objectives are not unique to the US. Indeed, they are remarkably consistent across international regulators, although they may be implemented in very different ways. There is of course variation in the articulation and weighting of the objectives – some countries focus more on constraining significant market power (SMP) alongside competition objectives, while others are explicitly charged to secure international competitiveness or security of supply. Yet all subscribe at root to the above six objectives. In this chapter, we discuss each of the six in turn – considering the specifics of both US and international objectives – and then consider briefly the additional objectives seen amongst some international regulators. Promote universal service/ access Given the public value of telecoms, a key regulatory objective is to ensure efficient and affordable widespread supply. A particular area of focus is ensuring services are provided in high cost areas and to low income subscribers. In the US, the Telecommunications Act of 1996 states: “Quality services should be available at just, reasonable, and affordable rates…. Access to advanced telecommunications and information services should be provided in all regions of the Nation…. Consumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services”.2 This objective of universal service is mirrored in PUC statements such as that from California: “Universal service, a concept that basic telephone service be affordable and ubiquitously available to all members of society, is a longstanding cornerstone of the California Legislature and the PUC's telecommunications policy”.3 2 US Telecommunications Act of 1996 (“US Telecoms Act 1996”): Section 254b, para 1-3 3 California Public Utilities Commission, available at: http://www.cpuc.ca.gov/PUC/Telco/Public+Programs/ 4 Internationally, the message is the same. For example, Australia’s ACCC aims to: “ensure that standard telephone services, payphones and other carriage services of social importance are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business”.4 The UK’s Communications Act 2003 requires Ofcom to secure the: “availability throughout the United Kingdom of a wide range of electronic communications services”.5 Japan’s regulator’s goals include broadband coverage. Japan aims to: “eliminate the digital divide as soon as possible … establishing broadband in all regions lacking broadband capability by the end of 2010”.6 Foster competitive markets It is widely accepted in OECD countries that market mechanisms are likely to lead to the best outcomes, and to this end regulators seek to ensure healthily competitive markets. This is expected to ensure efficient supply of telecommunications services, good quality of service, innovation and advanced services, and efficient prices. Regulating competition involves the effective enforcement of fair and equitable competitive market objectives including: • Creating opportunities for new companies and investors to enter the market by implementing appropriate authorisation and licensing frameworks • Removing barriers to market entry by new operators, and levelling the playing field for them • Restraining the power of dominant players by, for example, overseeing the interconnection of new entrants with incumbent operators with transparent rules and associated cost-based payments In the US, the purpose of the Telecommunications Act of 1996 is: “To promote competition and reduce regulation in order to secure lower prices and higher quality services for American