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The Case Against Senate Bill 245 and House Bill 1279
Submitted by:
Hoosiers for Affordable Telephone Service
January 17, 2006
Hoosiers for Affordable Telephone Service (HATS) is a coalition of consumer groups organizing to maintain affordable basic telephone service in Indiana. Specifically, HATS opposes the provisions of Senate Bill 245 and House Bill 1279 that would lead to higher phone rates and lower quality of service.
Groups currently signed onto the fight against SB 245 and HB 1279 are:
- AARP Indiana
- Citizens Action Coalition
- Indiana Chapter of the Alliance for Community Media
- Indiana Coalition on Housing and Homeless Issues
- Indiana Community Action Association
- Indiana Media Action Coalition
- Public Access Indiana
- United Senior Action
Executive Summary
Senate Bill 245 and HB 1279 are Bad for Ratepaers and Not Needed to Ensure Broadband Deployment
Senate Bill (SB) 245 and House Bill (HB) 1279 are not needed to ensure that broadband technology is deployed throughout Indiana and will lead to unwarranted rate increases and poor quality of service for ratepayers. The bills effectively eliminate Indiana Utility Regulatory Commission (IURC) jurisdiction over rates and quality of service for local calling. SB 245 also eliminates the IURC’s ability to stop anti-competitive practices, such as offering services below cost in emerging markets. Given the incumbents’ overwhelming financial strength, no non-incumbent competitor could compete under these circumstances in practically any facet of telecommunications service.
To provide a context for further discussion, it is necessary to describe why these proposals are bad for residential and small business ratepayers. In the short term, ratepayers would be faced with unjustified automatic rate increases. In the long term, SBC/AT&T could set its own rates and service quality standards. Specifically,
SB 245 allows telephone companies to incrementally increase the rates consumers pay for basic telephone service every year, from 2006 through 2009. Beginning in 2009, the IURC would no longer be able to place any limits on the rates telephone companies charge for basic local phone service. Not only would rates increase, but telephone companies could eliminate flat monthly rates for unlimited local calling and instead charge by the minute.
HB 1279 similarly allows for price deregulation of basic telephone service, but would do in July, 2006 without a transition period. While HB 1279 provides some protections for flat monthly service, those protections apply only to customers whose service falls within a very narrow definition of “basic local service.”
Price increases for basic local phone service could be as high as 30 percent in some areas, according to Logan Jordan, associate dean of the Krannert School of Management at Purdue University.
Consumers in rural areas are particularly likely to see the price of their basic telephone service increase due to a present lack of competition in those areas.
According to the Indiana Office of Utility Consumer Counselor’s (OUCC) 2005 report, the recent SBC/AT&T and Verizon/MCI mergers are changing the competitive landscape, such that these incumbent providers will now control roughly 93 percent of the telephone access lines in Indiana. With such lack of competition for basic phone service, there will be no pressure to drive those prices down.
Under SB 245, after 2009, the IURC would no longer be able to regulate telecommunications service quality. Under HB 1279, the IURC’s service quality authority would be severely curtailed beginning in 2006. This would render the IURC powerless in situations like the SBC service-quality melt-down of 2000 in Indiana and the Midwest.
SB 245’s tax abatement provisions, designed to encourage competition in broadband investment, unfairly benefit monopoly telephone companies (i.e., SBC/AT&T and Verizon/MCI), who will receive automatic rate increases as well as tax abatements. Their broadband investments would be subsidized by ratepayer and taxpayer dollars, running contrary to the stated goals of leveling the playing field for competitors in the broadband market.
Reason Number 1 for Not Passing SB 245 and HB 1279:
Indiana Law Already Provides for Regulatory Flexibility
Proponents of SB 245 assert that the last Indiana telecommunications law was adopted 20 years ago and that Indiana law has not responded to changes in technology and competitive forces. This claim ignores the significant regulatory flexibility afforded the IURC under Indiana’s alternative regulation statute. Under this statutory framework, the IURC has closely monitored telecommunications markets and made rulings based on extended negotiations between the OUCC, incumbent telephone companies, and interested parties for the past 11 years. Rulings of the IURC have the force of new law. Furthermore, these proceedings have resulted in pricing flexibility for a number of services provided by incumbent telephone companies like SBC/AT&T. OUCC noted in 2005 that Indiana’s alternative regulation statute has been successful in allowing for regulatory flexibility in a changing environment.
Reason Number 2 for Not Passing SB 245 and HB 1279:
Continued Regulation of Basic Local Service Does Not Impede Broadband Development
The assertion put forth by proponents of SB 245 that regulation of Basic Local Service (BLS) is somehow inhibiting investment in advanced telecommunications technology is patently false. Various providers are currently systematically expanding broadband access in Indiana, including the incumbent telephone companies, as a result of negotiated settlements under the alternative regulation statute. Others investing in broadband include the Indiana Fiber Network (a consortium of smaller telephone companies), municipalities, and universities. Regulation of BLS has not impeded broadband deployment in Indiana. Furthermore, a 2005 Federal Communications Commission’s study found that broadband lines increased 53% in Indiana from 2003 to the end of December 2004.
Reason Number 3 for Not Passing SB 245 and HB 1279:
A Favorable Regulatory Climate for SBC/AT&T Cautions Against Further Deregulation
Clearly, SBC/AT&T enjoys a very favorable regulatory climate. The federal courts have eliminated the incumbents’ obligation to lease their network elements at favorable rates to competitors. Likewise, regulators have relaxed or eliminated similar leasing requirements with respect to broadband. These actions have solidified SBC/AT&T’s control of local calling and aided in its expansion into the broadband market. Similarly, despite its dominant market position, SBC/AT&T has convinced the IURC to force its competitors to comply with the same regulations required of incumbents in key areas. Nevertheless, the IURC still understands that it must continue to play a regulatory role in the telecommunications industry. The Indiana Utility Regulatory Commission is not convinced that the telecommunications market in Indiana is mature enough for deregulation across-the-board, as is envisioned in SB 245 and HB 1279.
Reason Number 4 for Not Passing SB 245 and HB 1279:
SBC/AT&T’s Market Dominance Cautions Against Dereuglation
Clearly, regulations and competition have not hampered SBC/AT&T from gaining market dominance in its territory, nor constrained the company in its geographic scope with respect to telecommunications services. SBC/AT&T is the dominant force in its former-Bell territories in terms of local (for both residential and business customers) and long distance service. It is the dominant force nationwide in terms of wireless and DSL service. The company is poised, through SBC’s acquisition of AT&T, to further expand into the business market segment both at home and abroad. The dominant position of AT&T with respect to both long distance and Internet services does not bode well for any non-incumbent competitor, whom the company dwarfs in terms of financial strength. Moreover, it is evident that the trend in the industry is not toward greater competition, rather it is toward greater consolidation. A merger between incumbent provider Verizon and MCI was approved by the FCC in October, 2005 and was finalized on January 6, 2006.
Reason Number 5 for Not Passing SB 245 and HB 1279:
SBC/AT&T’s Anti-Competitive Behavior Cautions Against Deregulation
It would appear that SBC/AT&T has worked incessantly at protecting its dominance over its captive customer base. Consumer groups have identified strong evidence that it attempted to thwart the Telecommunications Act of 1996 (TA ‘96) implementation strategy at every turn, and incurred steep fines as a result. The company now is engaged in anti-competitive practices, such as offering DSL service only if it is bundled with local service, to effectively eliminate any chance of competition for local service customers in its 13-state region.
The fact that SBC/AT&T still controls over 90 percent of telephone access lines in its territory, and evidence of its growing market share after initial losses due to TA ’96, further corroborate the company’s anti-competitive behavior in recent years.
Reason Number 6 for Not Passing SB 245 and HB 1279:
There is no Comparable Replacement for Basic Local Service (BLS)
The proponents of SB 245 premise their need for deregulation on the argument that wireless and voice over Internet protocol (VoIP) service are viable substitutes for BLS on a technological, competitive and availability basis. This argument is widely discredited. BLS is cheaper and more reliable than the newer technologies, and unlike them, it continues to operate during power failures and ensures 911 service. Indeed, in a recent decision the IURC has reaffirmed its position that wireless is not a viable alternative and is skeptical for technological and competitive reasons about VoIP. Furthermore, SBC/AT&T’s dominance in the DSL and local markets makes the viability of serious competitive challenges questionable at this time.
Reason Number 7 for Not Passing SB 245 and HB 1279:
Would Only Serve to Cement SBC/AT&T’s Monopoly Status in its Indiana Territory
In essence, these proposals are not designed to encourage broadband investment per se. Instead, they are designed to ensure that incumbent telephone companies are the leaders in broadband investment in the state - thereby providing them with the legal mechanism to retain and expand their market power within their respective territories. No other telecommunications companies would have the financial wherewithal to rival them, and, particularly under SB 245, no state-level regulatory body would have the authority to prohibit anti-competitive practices, such as using revenues from captive basic local service customers to subsidize offering services in emerging markets below cost.
Reason Number 8 for Not Passing SB 245 and HB 1279:
There are More Equitable Ways to Encourage Broadband Deployment
Last year, Indiana State Senator David Ford introduced Senate Bill 381 in an effort to begin the process of systematically providing broadband service to the rest of the state. It envisioned a coordinated effort between the Intelenet Commission, higher education, and other entities to accomplish a true public benefit. There were no provisions included that dealt with deregulation of incumbent telephone companies. Perhaps the legislation should be revisited, in lieu of a scheme that appears ultimately to only serve the business interests of incumbent telephone companies.
Conclusions
There is no good reason to pass SB 245 or HB 1279, and many good reasons not to. Contrary to proponents’ assertions, there is strong evidence that the bill would severely curtail competitive forces in the telecommunications sector even more than they already are and lead to unwarranted rate increases and poor quality of service for ratepayers.
There is also strong evidence that the bills are specifically designed as an extension of SBC/AT&T’s business strategy of gaining a dominant market position with respect to telecommunications services across the board. As such, the bills are contrary to the mainstay of historical state utility policy, affordable and reliable telephone service.
As previously alluded to, the federal court decision with respect to Unbundled Network Elements-Platform (UNE-P) has allowed incumbent telephone companies to effectively freeze out additional competition in local calling areas. The number of competitors has dropped significantly, and the number of lines controlled by competitors is shrinking. Indeed, SBC acknowledged in its 2004 annual report that the UNE-P decision furthered its business interests in local calling areas.
This is also the result of SBC taking over its most significant competitor, AT&T. Arguably, although not in the scope of this report, anti-trust enforcement policy in the United States has resulted in substantial consolidation in both the electric and telecommunications industries. There does not appear to be any question that unprecedented consolidation in each industry is leading to fewer companies competing in these economic sectors. However, the direct takeover of AT&T by SBC has helped to increase SBC/AT&T’s market share of local lines in Indiana by an estimated 5 to 6 percent, from approximately 88 to 93 percent.
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