Copyright 2001 Federal News Service, Inc. Federal News Service
April 25, 2001, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 4949 words
HEADLINE:
PREPARED TESTIMONY OF PAUL K. MANCINI VICE PRESIDENT AND ASSISTANT GENERAL
COUNSEL SBC COMMUNICATIONS INC.
BEFORE THE
HOUSE COMMERCE COMMITTEE
BODY: Thank you for the opportunity to appear and testify before you this
morning. I am Paul K. Mancini, Vice President and Assistant General Counsel of
SBC Communications Inc.
HR__, commonly known as the
Internet Freedom and Broadband Deployment Act of 2001 will
encourage greater broadband investment and deployment of high-speed Internet
access to consumers in all areas of the country. It will balance the unjustified
and anticompetitive regulatory disparity that currently exists between different
broadband providers, help close the Digital Divide, and encourage competition by
providing customers with more choices and higher quality services at competitive
prices.
I commend Chairman Tauzin and Ranking Member
Dingell for their leadership and for recognizing that the application of rules
designed to regulate the legacy voice network has delayed the availability of
high-speed Internet access for consumers, has delayed the widespread deployment
of broadband services for consumers, and has slowed competition between
competing providers in this market.
There are two
fundamental competitive principles that should guide Congress. First,
competitive markets should be free from governmental regulation of the rates,
terms and conditions under which goods and services are provided to the public.
Second, if there is some public policy reason for regulating a competitive
market, all service providers in that market should be subject to symmetrical
regulatory requirements. In other words, the same services in the same market
should be regulated in the same way, regardless of who is providing the services
or what technology is utilized to deliver those services. Let consumers decide
who to select based on competitive markets, and not on the result of regulations
that pick winners and losers.
Congress need look no
further than to the wireless market for confirmation that these principles will
benefit consumers and competition. In the early 1990s, Congress decided that a
competition model (rather than a regulatory model) should be used for the
wireless market. Hence, neither the FCC nor the states regulated the prices,
terms or conditions in that market and there are no requirements for wirelesss
providers to unbundle their networks or to assist their competitors entry into
the market. As a result, investment in the wireless market has exploded, prices
have fallen dramatically, and consumers have benefited from the robust
competition in that market by seeing more choices, more innovation and lower
prices.
HR is a step in the fight direction toward
fulfilling these fundamental principles in the market for high-speed Internet
access services. Any legislation to promote the delivery of these services to
the public should reduce the asymmetric regulation that currently exists between
the cable industry, the telephone industry and other providers of these
services, and bring about more competition and choices for consumers and to the
marketplace. It is only through full and fair competition that consumers in the
market for high-speed Internet access services can obtain the benefits of
quality, choice and price.
SBC strongly supports HR__
and encourages this Committee and the Congress to pass this legislation. This
bill is procompetitive and it will remove costly and unnecessary barriers to
entry by lifting disparate regulation in the competitive high-speed Internet
access market and the competitive high-speed data services market.
In considering HR, it should be emphasized that in the
market for high-speed broadband Internet access - all competitors, including SBC
as well as cable, fixed wireless and satellite providers, started from the same
starting block. In the market for high-speed data and Internet access services,
there are certain undisputed facts that compel adoption of this legislation: --
First, the market for high-speed Internet access services is a competitive
market in which there are four different types of providers (using different
technologies) competing head-to-head---able modems, Digital Subscriber Line or
DSL, fixed wireless and satellite providers.
-- Second,
there is no "bottleneck" in obtaining access to the customer -- none of the
Internet access providers depend on the facilities or networks of their
competitors to reach their end user customers.
--
Third, all local exchange careers (LECs) that provide DSL are behind in the
provision of high-speed Internet access services - cable modems currently
dominate this market and serve three out of four customers who use such
services.
-- Fourth, the LECs are heavily regulated
when they attempt to provide competitive Internet access services (while cable
and the other competitors are unregulated) and the LECs (but not their
competitors) are required to assist their competitors in entering this
market.
-- Fifth, SBC and the other Bell companies are
at a competitive disadvantage in that they cannot provide competitive high-speed
Internet access and data services on an interLATA basis, while their cable,
fixed wireless, satellite and other competitors are free to do so and do not
face the same restrictions.
-- Finally, state
regulatory commissions have unwisely asserted jurisdiction over only the DSL
providers in the high-speed Internet access market and, to date, at least one
commission has required the so-called "unbundling" of the high-speed Internet
access and data networks of the incumbent local exchange company (ILEC)
(including requiring the mixing and matching of line cards made by different
manufacturers located in remote terminals). This so-called "unbundling" is
clearly contrary to the intent of this legislation, and, it in fact, would be
prohibited if HR is enacted. These types of requirements apply only to the
incumbent local exchange company and not to any other high-speed Internet access
provider - furthering increasing the regulatory disparity of a competitive
service.
The effects of the disparate regulatory
treatment that currently exist in the highspeed Internet access market include
reduced investment by LECs in this market, the inefficient deployment of new
technologies, higher costs, fewer choices for consumers, and continuation of the
"digital divide." Hence, elimination of the regulatory disparity between the
Bell operating companies (BOCs) and their competitors in the high-speed Internet
access and data services markets is essential to fulfilling the fundamental
principles outlined above.
In summary, access to
high-speed Internet connections is crucial in today's economy. High-speed
connections to the Internet mean faster downloads and can provide a lifeline to
small businesses, schools and hospitals. Communities that have access to
high-speed Internet connections will prosper and grow in the Information Age.
Communities that don't will find themselves on the wrong side of a growing
digital divide. Consumers with high-speed Internet connections will be able to
get on-line with the speed they need to link with far away friends and family
members, tap the latest medical or educational resources, or enjoy multimedia
entertainment.
However, different rules for competing
high-speed Internet companies are not only bad public policy, they are stifling
and distorting investment and competition and creating anticompetitive barriers
to entry. That slows down choices and new technology for consumers. Without full
and unfettered competition in this market, many consumers will never have access
to high-speed Internet services or they will only have access to the services
provided by the dominant cable modem provider.
There is
no downside in passing HR __ Consumers benefit from the growth of competition
and the elimination of costly and anticompetitive barriers to entry in the
market for high-speed Internet access services. Equalizing the regulatory
treatment of competitors will permit my company (as well as other providers in
this market) to compete for customers fairly, resulting in greater choices,
lower prices and more rapid technological innovation. By contrast, the failure
to enact H.R. will freeze or reduce DSL deployment and investment, and leave the
rest of the country with no alternative to the dominant local cable operation
and the other providers in this market. Some competitors may want to delay the
inevitable competition that will result when all markets are open to competition
and to handicap the Bell companies when competing in the Internet access market,
but such a policy will harm competition and consumers. The same competitive
services should be regulated the same way. One competitor should not have to
incur increased costs and operate at a competitive disadvantage simply because
of the type of technology that it uses. Such regulatory disparity is bad public
policy, it creates barriers to entry, it distorts investment decisions and the
marketplace, and it restricts choices for consumers.
Background
Historically, the only
telecommunications pathway or wire to nearly every home and business in this
country was the local copper loop used to provide voice service. Until recently,
the local loop was part of a circuit-switched network which was capable of
transmitting only narrow-band analog or digital voice, and slow speed switched
data services. The local exchange telephone companies provided these services
pursuant to a legally franchised monopoly, and thus were subject to pervasive
regulation at both the state and federal level. As competition began to develop
in the telecommunications marketplace, the local loop continued to be viewed as
the only way for competitors to deliver voice services to the customers. In
other words, it was considered a "bottleneck."
However,
approximately 25 years ago, there developed another telecommunications pathway
or second wire to the home. Cable service began to emerge as an alternative to
broadcast television service, through the use of antennas located at the cable
provider's head-end that received programming from satellites, which was then
transmitted over coaxial cable to homes and businesses. Coaxial cable was
different from the LECs' local copper loops, in that it was capable of
transmitting broadband video and high-speed data services.
Additional telecommunications pathways to homes and businesses rapidly
developed through various wireless technologies, including digital satellite
service, cellular and PCS services, as well as fixed wireless.
Meanwhile, as competition was developing in the telephone industry, the
Internet began to evolve. When the '96 Act was being debated in Congress, the
scope of the Internet and the provision of high-speed Internet access to the
public was uncertain. Congress sought to address this new telecommunications
phenomena and the promising new advanced services through passage of Section 706
of the '96 Act. Section 706 established a new national telecommunications policy
to "encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans." Specifically, Congress directed
the FCC and state commissions to pursue this objective by "utilizing price cap
regulation, regulatory forbearance, measures that promote competition in the
local telecommunications market, or other regulatory methods that remove
barriers to infrastructure investment."
Unfortunately,
neither the FCC nor the States have eliminated, or even reduced, the regulation
of ILECs, particularly when they are trying to compete in the competitive
advanced services market.
Cable Modem versus DSL
Service
With the evolution of the Internet, both the
cable and telephone industries had to develop the technologies necessary to
provide their customers with high-speed Internet access and data services. The
cable industry developed cable modems to be used in conjunction with their
broadband coaxial cable networks. The ILECs were at somewhat of a competitive
disadvantage because their narrow-band local copper loops were not designed nor
were they equipped to provide high-speed service to consumers or businesses.
Hence, we had to develop a new technology -- DSL service, in order to provide
digital information at high bandwidths over copper loops.
While the ILECs were developing DSL service, the cable industry has
been rapidly deploying its cable modem technology. The ILECs are now playing
catch-up and are scrambling to deploy DSL service as a competitive alternative
to cable modem service for residential and small business customers. But, the
cable industry is far ahead of the ILECs in terms of actually serving customers.
At the end of the first quarter of 2000, there were approximately 2.5 million
residential subscribers to high-speed Internet access services in the United
States. Of these 1.9 million, 77% were cable modem subscribers. Only 21% were
DSL subscribers. It obviously makes no economic or public policy sense, for the
FCC and the states to continue to regulate the nondominant player in this
competitive market (DSL), when the dominant player (cable companies that provide
cable modems) serve three out of four customers in that market and they are
completely unregulated.
Thus, the consumer market for
the delivery of high-speed broadband Internet access and data services is a
highly competitive market served by the cable industry, the ILECs, fixed
wireless providers and satellite companies. The FCC has recognized, and it is
beyond dispute, that the high-speed Internet access market is a separate and
distinct market in which cable modem service, DSL service, fixed wireless
service and satellite access service provide the same high-speed Internet access
and offer to the same residential and business customers the same advanced and
high-speed data services.
Most importantly, the ILECs
had no "head-start" in the deployment of advanced services technologies. The
ILECs possess neither de facto nor de jure monopoly in the provision of
broadband Internet access, advanced services, or high-speed data services. And,
finally, it is absolutely clear that the LECs' local copper loop is no
"bottleneck" in the provision of high-speed Internet access and data services to
consumers. None of the four types of providers in this competitive market rely
on or use the facilities or networks of their competitors.
Asymmetric Regulation
Unfortunately, the rules
and regulations that apply to the provision of advanced services by the cable
industry, ILECs, fixed wireless and satellite companies are entirely
different.
The cable industry is essentially
unregulated in the provision of cable modem service. Under Title VI of the
Communications Act, the cable industry (as well as fixed wireless and satellite
access providers) are not required to interconnect with its competitors, nor
unbundle its facilities and make them available to competitors, nor provide
collocation space to its competitors, nor resell its services to competitors,
nor provide advanced services through a separate subsidiary. Moreover, the cable
industry is not currently required to give its customers a choice of an Internet
service provider. This unparalleled ability of the major cable providers to
control both the means of access to the Internet, combined with its control of
the content that is delivered to consumers provides it with an enormous
competitive advantage in the marketplace. For example, AT&T/TCI/Media One
and AOL/Time Warner control vast holdings in the access and content market.
AT&T/TCI/Media One is the largest cable provider and provides cable modem
service to almost 30% of all cable modem customers. AOL/Time Warner, directly
and through its ownership of RoadRunner provides cable modem service to
approximately 38% of cable modem customers. Together, AOL/Time Warner and
AT&T also own 8 of the top 15 video programming services, including 4 of the
top 5. As a result, it is more likely that the cable industry and other
broadband providers, rather than ILECs, will continue to hold a dominant
position in the provision of high-speed Internet access and advanced
services.
This is in stark contrast to the telephone
industry, where the ILECs remain pervasively regulated today, even when they try
to provide competitive advanced services that do not use or rely on the legacy
voice networks.
Under Title II of the Communications
Act, the ILECs are subject to common carrier regulation in their provision of
broadband Internet access, advanced services, and high-speed data services. In
addition, the ILECs are obliged to assist the CLECs in offering competing DSL
services through the interconnection, unbundling, and collocation requirements
of Section 251 (a) and (c) of the Telecommunication Act of 1996. Moreover, SBC's
advanced services affiliates, through which SBC provides Internet access and
high-speed data services, are required to provide interconnection under Section
251 (a) and permit resale under Section 25 l(b).
Unfortunately, under an asymmetric regulatory scheme, the regulators,
not the marketplace, determine the winners or losers. That significantly affects
the growth of the services and the availability of choice.
Accordingly, any legislation addressing high-speed broadband advanced
services should eliminate the regulatory disparity between the cable companies,
telephone companies, fixed wireless providers and satellite companies when they
provide high Internet access services.
This bill goes a
long way toward accomplishing this objective by exempting highspeed data and
Internet access services and the facilities used to provide such services from
regulation, and by eliminating any further unbundling requirements with respect
to high- speed Internet access and data services.
Economic Benefits
The rapid deployment of
high-speed services is essential to expanding and reviving the economy. During
the last economic boom, the information technology sector generated roughly 30%
of the total annual U.S. economic growth and 70% of the total U.S. productivity
growth. However, just as it helped revive the economy during the last boom, the
present downturn in the Internet and high-speed industry has contributed to a
broad downturn in overall growth and investment. The tightening of capital
markets before Internet firms could begin booking profits caused this chain
reaction. In part, these E-commerce and content providers have failed to create
profitable businesses because slow narrowband connections limit the Internet's
potential. Slow connections inhibit this industry by limiting product
information to static pictures and text. Highspeed Internet access, with speeds
up to 100 times greater than narrowband, eliminates these impediments. The
broadband market is heavily oriented towards content, and will include packages
of video and data. The key broadband offering is an integrated package of
transport and content, not just transport alone. The cable industry occupies the
strongest position in this market because it has the facilities and faces NO
regulation. Likewise, the telephone companies today are in the best position to
compete with the cable industry and other broadband providers to bring new
services, lower priced services, and more choices to consumers, but not without
making a substantial investment to build a competing broadband network. This is
exactly what SBC has started.
Project Pronto
On October 18, 1999, a few days after SBC closed its
merger with Ameritech, we announced one of the most ambitious network
enhancement upgrades in telecommunications history. We called this Project
Pronto to emphasize the speed that customers want to access the Internet and the
need for quick time-to-market to compete with cable modem providers and others
that are providing alternative technologies for high-speed Internet access.
Unlike many programs and services offered by the large long distance companies
and other local competitors, this Project was intended to serve the mass
residential and small business market, not large business customers. In other
words, customers wanted high-speed access, cable companies already had a head
start in this market and we needed to commit capital and deploy new facilities
fast in the market. The size of the Project is huge, as is its $6 billion price
tag. It calls for constructing 16 thousand miles of new fiber optic cable, 17
thousand "remote terminals" and much more equipment. This was an SBC shareholder
driven investment, with no tax incentives or government loans. Project Pronto
involved SBC acquiring and deploying new types of advanced services equipment
that all other potential DSL competitors could have invested in and deployed on
their own.
Pronto started out covering all 13 SBC
states. Besides the quality of life enhancing benefit of bringing high-speed
Internet access to the broader mass market of residential and small business
consumers that make up your constituents, Pronto means more jobs in each state
and contributions to the economy via purchases of equipment from several vendors
for items such as the new fiber facilities and new equipment used to provide
this access.
State Regulatory Minefields
Managing a project of this scope and complexity is hard
enough from a pure business perspective, but the road to deploy Pronto has also
involved trying to manage our way through a regulatory minefield. The recent DSL
related regulatory requirements imposed in Illinois illustrate how onerous and
technically infeasible requirements can distort and potentially destroy
competition in the high-speed Internet access market. The regulatory
requirements in Illinois are such that SBC has determined it must suspend Pronto
deployment in that state. This decision was made with great reluctance in that
it, in effect, concedes market share to the dominant provider of high-speed
Internet access, the cable modem providers and the other providers in that
state. However, we made this decision because of our obligations to our
shareholders to make investments where there is an opportunity to earn a
reasonable return on such investments. The end result of this situation is that,
if the Illinois Commerce Commission ("lCC") does not reconsider its order,
consumers in that state will lose a choice in the high-speed Internet access
market, and all DSL providers within SBC's ILEC territory in Illinois (including
SBC's own affiliate) will fall even further behind cable modem providers who
already serve about 3 out of every 4 residential customers. The bottom line is
that consumers and DSL providers lose and cable increases its lead in this
market.
What is so bad about the Illinois regulatory
situation? While the subject is quite technical in nature, essentially the ICC
is applying rules primarily designed to open the legacy local exchange voice
market to these new DSL-capable facilities and equipment in the high- speed
Internet access market. In our view, the types of state actions ordered by the
Illinois Commission not only are unlawful under the 1996 Act, but also they
apply solely to one provider in the market (DSL), destroy the incentives of SBC
and other LECs to invest in the high-speed Internet access market, and
compliance with those requirements are technically impossible. Even the
manufacturer of the advanced services equipment in question has testified under
oath that they are technically infeasible and simply will not work. As a result
of these actions, SBC has had to suspend deployment of DSL facilities in
Illinois, to the detriment of consumers and competition in that state.
Specifically, these rules require the Pronto architecture
to be made available in minute piece parts in a "mix and match" manner to allow
competitors to install equipment components made by different manufacturers
inside SBC's advanced services equipment. There are substantial problems with
these rules. First there are portions of the Illinois orders that just don't
work. Trying to fit one vendor's components in another vendor's equipment is
like trying to insert a Sega game cartridge into a Nintendo game system or a
Toyota carburetor into a Ford engine. It won't fit and it won't work.
It is not just SBC that is saying this. So do the
manufacturers of the telecommunications equipment in question. The chief
technology officer of Alcatel has submitted a sworn affidavit to the ICC that
the requirements imposed by the ICC are simply not technically feasible. The ICC
requires the Pronto architecture to do things it is just technically not capable
of doing. All of these new obligations are unworkable from an economic,
technical and operational perspective. Even if these requirements were
technically feasible (which they are not), they add unnecessary and unjustified
complexity and costs. They undermine the business case for proceeding with
Project Pronto in Illinois. These additional costs - which may exceed more than
$500 million for Illinois alone -- would price DSL completely out of the
Internet access marketplace. While SBC is not opposed to providing access to its
Pronto high-speed Internet access service to competitors at forward looking
prices and, in fact, offers to do so, it cannot deploy new DSL facilities under
the Illinois regulatory model.
A major concern is that
the FCC and other states may decide to follow the counterproductive policies
enacted in Illinois. Onerous regulations that single out only the non-dominant
provider in this competitive market discourage investment and eliminate the
benefits that facilities based competition brings to consumers. This important
issue calls out for a national direction and policy.
We
believe that this bill is essential and to promote investment and competitive
choice to the benefit of American consumers.
InterLATA
Restrictions
One of the key regulatory disparities in
the market for high-speed data and Internet access services is the restriction
from offering interLATA long distance services. Section 271(c) of the Act
prevents the Bell operating companies (BOCs) and their affiliates from providing
services across LATA boundaries and from offering the Internet backbone service
itself. This restriction is no longer necessary or required because the market
for high-speed data services for business customers is a fully competitive
market and the BOCs are not in a monopoly position in this market. None of our
competitors in this fully competitive market -- cable companies, satellite or
wireless providers, the interexchange carders, nor the CLECs -- are subject to
this restriction.
The interLATA restriction thus places
BOCs at a significant competitive disadvantage, in the provision of a full
complement of competitive high-speed data services. Most medium and large
business customers have offices in multiple locations, states, or even countries
that need to be interconnected for the exchange of high- speed data
communications. Frequently, these business customers also want someone to manage
these high-speed data networks, including for example the ATM and Frame Relay
engines, SONET rings, and interLATA transport. This requirement places the BOCs
at a distinct competitive disadvantage, because they are unable to be full
service providers to these business customers.
There is
no continuing need for the interLATA restrictions for these services. As the FCC
has found, the business market for high-speed broadband services is separate and
distinct from the consumer market for the same services.! Virtually all business
customers have access to high-speed broadband service that is typically provided
over T1 lines, and business customers have many competitive alternatives for
obtaining that high-speed broadband access. 2 Accordingly, there is no
"bottleneck" in the "last mile" to the business customer for such competitive
services.
Finally, the interLATA restriction (as well
as the other disparate regulatory requirements) artificially inflates the BOCs'
costs of deploying high-speed Internet access and data service technologies, and
renders that deployment less efficient. These costs are reflected in our costs
to our customers, and they preclude our ability to exert downward pressure on
the retail rates in these markets to the detriment of customers. Further, it
means that significant portions of our nation, particularly in rural areas,
cannot receive high-speed access to the Internet because they are not close
enough to a hub that can connect them to the Internet backbone. With the limited
interLATA relief contained in this bill, the BOCs will be in a position to
connect these communities to the Internet, thus making available to rural
consumers and businesses the same high-speed Internet access and high-speed data
services that are available in urban areas.
Conclusion
HR __ has gained the support of
many members of this Committee and over 70 members of the House. It is a major
step in the right direction to correct the imbalance in regulation and close the
"digital divide." We look forward to working with the Committee and the Congress
to achieve these objectives.
Thank you for the
opportunity to comment on this very important legislation which will, if passed,
promote competition and benefit all consumers by providing them with more
choices and higher quality services at lower prices.
FOOTNOTES:
1 In the Matter of Inquiry
Concerning the Deployment of Advanced Telecommunications Capability to All
Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate
Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996,
Report, CC Docket No. 98-146 at Para. 28 (released February 2, 1999).