Court Rules It's Fine If FCC Wants To Deem Just One Available ISP As 'Competition'

from the nothing-to-see-here dept

So we've long discussed how the FCC (often under both parties) has a long and troubled history of ignoring the obvious competition problems in the United States broadband market. From the FCC's $300 million broadband map that avoids mentioning prices and hallucinates competition and speeds, to the agency's long-standing (and absurd) belief that just one connection in a census tract means the entire area is "served," the government has gone to great lengths to help deep-pocketed telecom campaign contributors mask the width and depth of a problem that's painfully obvious to U.S. consumers.

Under the Ajit Pai FCC, this rose-colored glasses approach to data has only, unsurprisingly, intensified. The Pai FCC has been engaged in all manner of efforts to lower the definition of broadband in order to make it appear that residential broadband is more uniformly deployed than in actually is. That effort has been equally present in the even less competitive broadband business and special access market, where just a few ISPs hold regional monopolies over the high-speed lines connecting everything from cellular towers to your local ATM.

When Ajit Pai came to power at the FCC, he immediately got to work scrapping previous FCC efforts to make this market more competitive. That included modifying the very definition of "competition." Under the revised Pai FCC language, countless markets were suddenly deemed "competitive" if businesses had access to just one broadband provider . In response, impacted competitors and consumer groups filed an amicus curiae brief (pdf) urging the US Court of Appeals for the Eighth Circuit to vacate the FCC's rule changes.

That effort hasn't gone particularly well. This week, the court upheld the FCC's decision to declare a market "competitive" if there's just one ISP available to service it. From the ruling (pdf):

"We recognize that the relevant data presents radically different pictures of the competitiveness of the market depending on the economic theory applied and the weight given to conflicting pieces of evidence. But the FCC may rationally choose which evidence to believe among conflicting evidence in its proceedings, especially when predicting what will happen in the markets under its jurisdiction . Thus, we deny the petitions for review as to the Competitive Market Test because the FCC's resolution of competing evidence was not arbitrary and capricious."

That's not to say what the FCC is doing is good, just that it's within the FCC's authority to pick and choose between available sets of facts when crafting policy.

The fact remains that the Ajit Pai FCC has been happily fiddling with available data to try and downplay the competitive problems in the sector, in stark contrast to Pai's routinely hollow rhetoric about how closing the digital divide and helping sad, rural farmers is his top priority. After all, if you can twist the data until it shows U.S. residential broadband and business broadband markets are super competitive, it's slightly easier to justify your decision to refuse to do anything to actually fix it. Either way, it's a favor incumbent BDS monopolies like Verizon, AT&T and CenturyLink surely appreciate.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: broadband, competition, fcc