Digging into H129: Another Bill in NC to Limit Local Authority and Broadband Competition

As we predicted, Time Warner Cable is pushing a new bill in North Carolina to limit competition and local authority to build broadband networks (Save NC Broadband is alive again). H129 purports to be An Act to Protect Jobs and Investment By Regulating Local Government Competition with Private Business - [download a PDF of the bill as introduced]. This bill is another example of state legislators refusing to allow communities to make their own decisions -- imposing a one-size-fits-all policy on communities ranging from the metro area of Charlotte to small communities on the coast and in the mountains. Many of the provisions in this bill apply tough constraints on the public sector that are not applied to incumbent providers, but this analysis focuses only on a few. Let's start with the title:

An Act to Protect Jobs and Investment by Regulating Local Government Competition with Private Business

There is no support anywhere in this bill to explain what the impact of community networks is on jobs. Nothing whatsoever. There is a claim that "the communications industry is an industry of economic growth and job creation," but ignores the modern reality that that the communications industry goes far beyond the private sector. In fact, the recent history of massive telecommunications providers is one of consolidation and layoffs. It is the small community owned networks that create jobs; larger firms are more likely to offshore or simply cut jobs. Certainly all businesses depend on communications to succeed. Unfortunately, they are often limited to very few choices because the of the problem of natural monopoly. This is why many communities have stepped up, including three in North Carolina (two of whom offer the offer the most advanced services in the state). So what is the result of the community networks on jobs? Community Networks obviously create jobs merely by existing - they hire managers, sales staff, customer support reps, technicians, and etc. They create competition, which market theory tells us will result in lower prices for everyone in the market. And to date, no one has suggested that TWC or any other competitor in these communities has laid employees off. To the contrary, they are likely to hire more sales staff to go door-to-door to retain subscribers. The effects of this bill will be to lower the number of jobs in North Carolina. Existing businesses will be less efficient because they have fewer choices. Companies like CenturyLink and TWC will have fewer incentives to invest in faster technologies or improve customer service.

A city-owned communications service provider shall meet all of the following requirements: … Provide communications service only within the jurisdictional boundaries of the city providing the communications service

If the purpose of this bill is to protect jobs and investment, it is hard to see how restricting competition will promote those goals. As much of the bill is concerned about cities abusing their inherent power as the local government, it is not clear why it is unfair for them to operate where they do not have of the supposed advantages of a local government.

… Shall not price any communications service below the cost of providing the service… The city shall, in calculating the costs of providing the communications service, impute (i) the cost of the capital component that is equivalent to the cost of capital available to private communications service providers in the same locality and (ii) an amount equal to all taxes including property taxes, licenses, fees, and other assessments that would apply to a private communications service provider…

Requirements to impute costs are a goldmine for lawyers -- the costs included here vary and require judgment calls that will undoubtedly be challenged by lawyers employed by those opposed to the project. The entire process is an impractical accounting nightmare that is not meant to restore balance to the market but rather to discourage any community from even trying to comply. The Georgia Public Service Commission explained why this notion is poor policy:

Preventing anticompetitive practices, unfair competition, and abuse of market position does not mean that the Commission must impose conditions on every applicant which has some advantage not shared by every other applicant. The Commission is required to treat all LEC's [Local Exchange Providers – i.e. phone companies] equally, not make all LEC's equal. BellSouth and the large cable companies certainly enjoy better capital costs than a typical small business owner. Does this put the small company at a competitive disadvantage? Of course. Should the Commission determine which LEC has the highest capital costs and require that all other companies impute that amount into their rates to level the playing field"? Certainly not. If Marietta has to comply with expensive open records requirements or expensive municipal bidding requirements, should those costs be imputed into the rates of all private companies? Again, no. Similarly, if BellSouth has a large tax write-off one year, it would be ridiculous to require that they impute into their tax rates the taxes they did not have to pay merely because some other company may not have had a tax write-off that year.

The requirement not to price below the cost of providing the service is similarly hard to calculate - how does one calculate the individual charges in a bundle? Do subscribers have to pay $1500 for the first month to cover the cost of connecting the house to the network pass or can that fixed cost be spread across one year, two years, three years? Requirements like these make the bill's true intent obvious: cripple any competition to TWC. Time Warner Cable is free to charge as it pleases -- it can use predatory pricing against competitors because it cross-subsidizes from its vast customer base (largely in uncompetitive areas) and has the many advantages inherent in incumbency.

A city-owned communications service provider shall not be required to obtain voter approval under G.S. 160A-321 prior to the sale or discontinuance of the city's communications network

This is a stunning overreach. Not only are communities effectively barred from building competitive networks, the community has little power to ensure an irreversible decision actually has public support. It is hard to understand how shutting down a popular network will save jobs.

The provisions of G.S. 160A-340.1, 160A-340.4, and 160A-340.5 do not apply to the provision of communications service in an unserved area.

This is undoubtedly a smart preemptive move against the argument that this bill will prevent communities from building their own networks where the private sector is not interested. The result is perverse -- a community with no private sector provider may choose to build its own network but a community with a deadbeat provider offering expensive, unreliable connections with technology from the last century cannot make that choice.

A city or joint agency subject to the provisions of G.S. 160A-340.1 shall not enter into a contract under G.S. 160A-19 or G.S. 160A-20 to purchase or to finance or refinance the purchase of property for use in a communications network or to finance or refinance the construction of fixtures or improvements for use in a communications network. The provisions of this section shall not apply to the repair or improvement of an existing communications network.

Recalling that I am not a lawyer, this section appears to be an attempt to prevent communities from using public-private partnerships (perhaps with a nonprofit organization) to build a network. Anyone with a better understanding of this section should comment below to clear this up. We received a one-sheet [pdf] explaining the provisions of the bill, which states the bill "permits cities to provide phone, cable and broadband services in competition with private providers, subject to certain requirements…" Unfortunately, those "certain requirements are sufficiently onerous to ensure any community attempting to build a competitive network has the steepest possible hill to climb. Under present law, communities are already disadvantaged due to the inherent advantages of an incumbent. This bill greatly increases the power differential, protecting lazy incumbent providers while handcuffing communities. Another talking points one-sheet [pdf] has a heading saying "Level Playing Field / Local Government Competition" and starts by saying cities can provide services on "roughly equivalent" terms as private providers. It then lists 4 things communities have to do, conveniently ignoring that the private sector fails to meet each of these. We have tackled the Level Playing Field Canard previously but here we go again:

• Comply with laws and regulations applicable to private providers -- including the payment of taxes. - Of course, it is hard to calculate exactly how much these private providers actually pay in taxes due to the variety of tax breaks and their use of tax havens to avoid paying the taxes that normal non-massive companies have to pay.

• Not cross-subsidize their competitive activity using taxpayer or other public monies - If we would ban cross-subsidies, that would be something! But no, this bans a specific form of cross-subsidization that the public sector may use while allowing the private sector to cross-subsidize at will. TWC can lower prices in Wilson while raising prices in Raleigh. AT&T can use profits from its wireless network to invest in U-Verse. But the community networks are limited to resources from their boundaries. Regardless of its merit as a rule, to suggest it levels the playing field is to ignore reality.

• Not price below cost, after imputing costs that would be incurred by a private providers - Again, the private providers are not limited in their ability to price below cost (predatory pricing) and have little reason not to as they can cross-subsidize from nearby non-competitive areas.

• Not discriminate against private providers in access to rights-of-way - Once again, we have a rule that should be applied to both sides. No entity should be allowed to delay the other in access to poles. But it is the private providers who have obstructed community networks from the poles.

This legislation will hurts jobs, investment, and the general competitiveness of the state in a digital economy. The General Assembly is doing Time Warner Cable a massive favor by shutting down the only threat of competition and the source of the best broadband networks in the state -- community networks. I encourage readers to look in on Philip Dampier's long discussion about this bill and Karl Bode's shorter take on it. Anti-H129 Graphic designed by Eric James. Monopoly photo used under creative commons license, courtesy of Jenn Vargas (foreverdigital) on flickr. Handcuffs also under creative commons, courtesy of nigel view on flickr..