Are regulatory authorities using best practices when assessing competition in telecommunication markets?
In a new paper [pdf, 364 KB], the International Center for Law & Economics (ICLE) argues that US communications markets are more dynamic and competitive than legacy regulatory frameworks assume. The submission urges the FCC to modernize its analytical approach, emphasizing technological convergence, cross‑platform substitutability, and the centrality of investment incentives in broadband and video markets.
ICLE’s core thesis is that traditional market silos — fixed broadband, mobile, satellite, and video — no longer reflect how consumers behave or how firms compete. Households now switch fluidly among cable, fiber, fixed wireless access (FWA), mobile broadband, and Low Earth Orbit (LEO) satellite. This substitutability constrains pricing power even in markets that appear concentrated on paper. The rise of FWA is a prime example: T‑Mobile’s Home Internet service has grown to millions of subscribers, directly pressuring cable operators and accelerating churn. Cable’s counter‑move — bundling MVNO‑based mobile services — illustrates how formerly distinct markets now operate as a competitive continuum.
ICLE argues that the FCC’s competition assessments must reflect these cross‑technology dynamics. Market definitions built around legacy service categories risk overstating market power and understating the competitive discipline imposed by emerging substitutes.
While convergence increases competitive pressure, ICLE stresses that it does not change the underlying economics of broadband deployment. High fixed and sunk costs, long payback periods, and economies of scale mean that only a limited number of facilities‑based providers can operate sustainably in most markets. Policies aimed at maximizing the number of competitors may therefore undermine the investment needed for next‑generation networks.
ICLE warns that fragmentation — especially in markets with modest density — can reduce per‑firm revenues below sustainable levels, deterring fiber upgrades, 6G deployment, and rural expansion. The organization argues that the FCC should prioritize sustainable competition: lowering deployment costs, streamlining permitting, and ensuring merger policy accounts for investment benefits, not just static concentration metrics.
In video, ICLE contends that broadcast ownership rules and retransmission‑consent frameworks no longer match market realities. Broadcasters now compete with national streaming platforms unconstrained by ownership caps, yet broadcasters remain subject to legacy restrictions rooted in spectrum scarcity—an economic rationale ICLE argues is obsolete.
Retransmission consent, originally designed to counter cable bottlenecks, now creates bargaining asymmetries that can inflate fees and distort negotiations. ICLE recommends comprehensive reform: either phasing out retransmission consent entirely or pairing ownership deregulation with safeguards that reduce blackout risks and limit fee escalation.
ICLE wants the FCC to modernize its analytical framework when assessing competition to reflect converged markets, cross‑platform competition, and the investment‑driven economics of broadband. Interventions by regulators should avoid distorting markets that are already delivering lower prices, improved quality, and greater choice. The role of the regulator is to promote predictable, investment‑supportive policy. “The agency’s guiding principle should be to reduce regulatory distortions, preserve investment incentives, and allow competition — not legacy silos — to discipline communications markets.”
There is much in the ICLE’s paper that is relevant for Canadians. It is worth a look.