For the first time in many years, the FCC’s annual “CMRS” competition report (now called the “mobile” competition report) does not find that the wireless marketplace is “effectively competitive.” At today’s FCC meeting, Wireless Bureau Chief Ruth Milkman said the Bureau felt it should analyze the data without reaching a conclusion, but didn’t say why the Bureau felt that way. Unfortunately, I fear the real answer is that the FCC wants to engage in heavy-handed regulation of the wireless industry and doesn’t want a finding of “effective competition” to get in the way.
The refusal to make a finding is both inconsistent with past practice and inconsistent with reality. The reality is that, according to the measure of effective competition used for the cable industry, the wireless industry is wildly competitive. Over the last several weeks, the Media Bureau at the FCC has been releasing an avalanche of orders finding that cable markets are subject to “effective competition” among multi-channel video programming distributors (MVPD). (See here, here, and here for sample orders.) The Media Bureau’s conclusions have been based on its findings that two unaffiliated MVPD (DIRECTV and Dish) have a combined market share exceeding 15%. The FCC is thus slowly deregulating the cable industry because there are two competitors even while it lays the groundwork for regulating the significantly more competitive wireless industry, in which 74% of consumers have access to at least five wireless providers. The disconnect between what the Media Bureau is doing on the one hand and what the Wireless Bureau is doing on the other would be laughable if it weren’t so outrageous. Is it too much to ask that the FCC oversee the various communications industries in a consistent manner?
The blatant inconsistency in treatment of the cable and wireless industries might explain why the FCC has been so furtive about deregulating cable. The Media Bureau hasn’t published any of the typically 3-4 page cable deregulation orders on its website. Rather, the only reference to them is in the FCC’s more obscure Daily Digest, where only the most diligent FCC lawyer is apt to notice them. In contrast, the hundreds-of-pages-long “Mobile” Competition Report was lauded at today’s public Commission meeting. Apparently the FCC prefers to be quietly inconsistent rather than transparently even-handed.
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