Abstract
The two leading US long-distance carriers—AT&T and MCI—have recently been acquired by two of the four major incumbent local exchange carriers—SBC and Verizon—and shortly thereafter, the new AT&T (SBC and the old AT&T) acquired BellSouth. Contemporaneously, alternatives to traditional voice communications provided by cable television and internet- based providers indicate a shifting of competition from a single voice market to the “triple play” of voice, video, and high-speed data. These developments imply a fundamentally different model of competition and industry structure than the one of “dominant firms” supplying essential inputs to new entrants for traditional voice service that was envisioned in the 1996 US Telecommunications Act, as implemented by Federal Communications Commission. In response to these developments, state governments, the FCC, and Canadian authorities have enacted legislative or regulatory changes that limit retail price regulation to services such as the basic residential telephone line. Approaches for assessing market power and other competitive issues that account for the specific characteristics of the emerging (converging) industry are also discussed. The paper concludes by describing the implications of the emerging nature of telecommunications competition for future ex ante and/or ex post regulation, market power assessment, continued regulation, and antitrust analyses.
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Notes
Even though the US Supreme Court had upheld the FCC’s pricing rule (the September 2002 issue of the Review of Network Economics, which is available online, contains several articles discussing the issues surrounding the Supreme Court’s determination), the FCC nonetheless raised the possibility that the pricing rule might be modified to approximate more realistically the prices that would prevail under competition. In particular, the FCC (2003b,¶3) indicated that a major objective would be determining whether the rule needed to be adjusted to facilitate the objective of facilities-based entry. As of this writing, although the FCC received opening and reply comments in December 2003 and January 2004, it has released no decision in this proceeding.
Telecommunications Act of 1996 Preamble:
To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.
Indeed, such convergence may well draw in wireless services, in which case the scope of competition would encompass a “quadruple play.”
ARMIS data began reporting subcategories of residential lines in 2002. For the years before, alternative FCC data, which reports more additional lines in 2002 (because it includes lines from smaller ILECs and CLECs, which are not included in ARMIS data), show additional residential lines of 23.6 million, 26.2 million, 26.3 million, and 18.4 million from 1999 through 2002. Thus, the steep decline in additional lines began after the peak level was reached in 2001 (FCC 2005b, Table 7.4).
The data represented in the figures that follow in this section are from FCC (2007b, Tables 1, 3, 4, 5, and 14).
This derivation assumes that minutes of use are recorded on both ends of a wireless call.
In fact, some advocates of continuing regulation of wireline incumbents have argued that wireless is a complement, rather than substitute service on the grounds that (1) over historical periods, the volumes of both have increased simultaneously and (2) there are differences in various attributes of the two services (e.g., price levels and structures, call quality), between wireline and wireless services. These considerations are irrelevant from an economic perspective. As long as a reduction in the price of one of the services (e.g., wireless) results in a decrease in the demand for the other, the services are substitutes. In contrast, if wireless and wireline were complementary services, price decreases in wireless would be accompanied by increases in wireline demand. Figure 3, in conjunction with Fig. 6 below strongly suggests that because the combination of (1) wireless prices decreasing faster than wireline prices, (2) wireline volumes declining, and (3) wireless volumes increasing considerably the services are substitutes.
As described below, the CRTC’s determination was modified by the Governor in Council (at the recommendation of the Minister of Industry—the cabinet department that supervises the Commission) so that for residential customers wireless services are considered as substitutes for traditional telephone services.
This trend continued until the two most recent reporting periods (December 2005 and June 2006) at the end of which the CLEC share of 17.3% declined from 19.1% 1 year earlier. This decline was most likely explained in large part by the fact that the lines supplied by the former AT&T in the former SBC service territories and the former MCI in Verizon territories were reclassified from CLEC to ILEC lines upon completion of the mergers.
The Supreme Court (1999) upheld the FCC’s determination that incumbents must offer on a packaged basis the collection of elements that were formerly offered as a package at retail. Thus, when an entrant was able to win a retail customer away from the incumbent, they were in effect using the same inputs as if they were using the resale option, but often at a better price.
This order (FCC 1999) continued to require that unbundled switching be available, thus allowing CLECs to combine unbundled local loops, switching, and other elements into the UNE-P.
The FCC’s unbundling rules consider a requesting carrier impaired “when lack of access to an incumbent LEC network element poses a barrier or barriers to entry, including operational and economic barriers, that are likely to make entry into a market uneconomic.” The FCC’s (2005a, ¶¶21–22) most recent order clarifies that the standard is interpreted with respect to a reasonably efficient carrier.
This order was subsequently upheld by the D.C. Circuit Court (2006).
For the fully facilities-based entry mode, we report total volumes as well as the individual volumes for “intermodal” and “intramodal”. “Intermodal” refers to telephone provided over coaxial cable and “intramodal” denotes traditional telephone technologies.
At its peak, UNE-P accounted for one-half of entrants’ volumes.
The FCC defines these as lines provided over CLEC-owned “last-mile facilities.”
The volumes for these CLECs are the “intramodal” volumes plus the number of CLEC lines that use UNE-L as an input.
Measured as the average net unit value of capital stock.
Hazlett and Bazelon also note that another FCC determination—that incumbents no longer need to provide access to the high-frequency part of local loops, thus allowing the incumbent and entrant to share the physical facility to provide voice (the incumbent) and high-speed Internet access (the entrant) preceded an acceleration in the growth digital subscriber lines and an increase in the share of these lines relative to the “intermodal” cable modem alternative.
These data are from quarterly surveys conducted by Telegeography, as summarized by several articles in the trade press.
The price trends are displayed in reverse order of their annual average real inflation rates. While the same forces that have resulted in convergence over industries and products also complicate the measurement of price indices, the broad trends revealed in these indices are nonetheless informative.
According to the FCC (2007d, Table 13.1), the increase in local prices was largely explained by an increase in the subscriber line charge from about $3.50 at the beginning of the period to close to $6.00 at the end. In contrast, local rates themselves increased by only about $1.00. Indeed, net of the subscriber line charge, local rates increased slower than the inflation in the consumer price index, i.e., real prices decreased on the order of 10% over the period.
Crandall (2005, Chapter 9) compares developments in the United States, Canada, European countries, as well Japan and Korea using somewhat earlier data.
Indeed, in the Commission of the European Communities’ (2006) most recent annual report on telecommunications regulation, local loop unbundling statistics were part of the discussion of broadband competition.
Direct access includes both lines obtained from full facilities-based competitors and local services provisioned over unbundled loops.
In the case of the U.K., there were only about 61,000 fully unbundled loops in service at that time (Commission of the European Communities 2006, p. 65). Thus, the lion’s share of competitive alternatives to British Telecom came from facilities-based cable television providers.
After AT&T and Bell South had offered additional concessions dealing with issues such as special access pricing and network neutrality for broadband Internet access services, the FCC approved the AT&T/BellSouth merger on December 29, 2006 and released the written order on March 26, 2007 (FCC 2007e).
The “divestiture” required that capacity be made available to other competitors in the form of indefeasible rights of use (IRUs), a form of long-term lease, rather than outright sale of that capacity.
The Herfindahl-Hirschman Index (“HHI”) is a commonly used measure of market concentration in antitrust analysis. It is computed by squaring the percentage market shares of individual firms and adding them up. Thus, if there are three firms in the market with market share 50, 30, and 20%, respectively, then the HHI in that market would be (50 × 50) + (30 × 30) + (20 × 20) = 3,800.
For example, the Department of Justice and FTC (1992) define industries with an HHI of 1,800 or greater to be “highly concentrated;” therefore, proposed mergers in such industries are subject to more detailed investigations.
The FCC’s reasoning here is akin to the “failing firm” justification of a merger that would otherwise be questionable (Department of Justice and FTC 1992, Section 5.1).
The FCC concluded that there was insufficient information to determine whether the VoIP services of non-facilities based providers such as Vonage (which the FCC labeled “over the top VoIP”) were sufficiently close substitutes to be included in the relevant product markets.
The FCC (2007c) recently partially granted forbearance in the Anchorage, Alaska area in response to a petition by the ILEC ACS. GCI, which provides competitive local service, as well as cable television, broadband, and long-distance services in Alaska, had captured about one-half of the subscriber lines in Anchorage, predominantly with unbundled loops and its own switching. However, it is migrating its telephone subscribers from unbundled loops to digital phone service provided over its cable facilities. By the end of 2005, it served approximately 20% of its Alaska subscribers with digital phone and anticipated approximately doubling that number by the end of 2006 (ACS 2005; GCI 2006).
QPP is Qwest’s Platform Plus—the commercially negotiated UNE-P replacement.
In roughly the same time frame, the Maine Public Utilities Commission granted full pricing flexibility for services other than basic exchange and at the same time allowed an increase in rates for these services.
In particular, the California Commission (2006, Findings of Fact 51 and 52) observed:
Review of the extensive record in this proceeding shows that Verizon, AT&T, SureWest, and Frontier lack the ability to limit the supply of telecommunications services in the voice communications market, and therefore lack the market power needed to sustain prices above the levels that a competitive market would produce.
This lack of market power pertains throughout the service territories of Verizon, AT&T, SureWest, and Frontier, and holds for both business and residential services based on the ubiquity of the UNE-L unbundling scheme throughout the service territories of each of the four ILECs in this proceeding and on the cross-platform competition present throughout California.
Because of the need to address low income and high-cost funding issues, residential rates will be frozen until January 1, 2009. After this time, there will be no cap on residential rates, except perhaps in those areas receiving high-cost support.
The California Commission (2006, Findings of Fact 39 and 40) included wireless services in the relevant product market, explicitly noting that wireless is a substitute, and not a complement with respect to traditional telephone service.
Confining price protection to a limited number of services is in many cases implicitly or explicitly accompanied by effective deregulation of bundles of services, e.g., while legislation in Iowa caps basic service rates in exchanges that have not been deemed sufficiently competitive to grant full price deregulation, bundles that include basic service are not price regulated.
In many cases, the explicit formula has been replaced by a freeze on the maximum price for the price protected services, which is mathematically equivalent to an explicit formula with the productivity factor (X) equal to the inflation rate (I). Because fewer than the firm’s full array of services are subject to a price limit, total factor productivity studies, which encompass the total output of all services produced by the firm or industry and which were often used to determine X, would not produce a productivity measure pertinent to the services in question. At the same time, because basic services—the focus of any remaining price limitations—are less likely to benefit from the types of technological advances that drove firm-wide and industry-wide productivity, the decrease in real prices on the order of 2.5% annually implied by recent inflation rates is likely to be at the same time both practical to administer and beneficial to consumers in that it poses an ambitious productivity target.
The table reflects research as of May 2006. As of October 2006, two additional states had passed legislation (Indiana and Kentucky) and regulators in two other states (Arizona and Vermont) have approved new retail regulation plans for large ILECs, in addition to California, which was described above (Perez-Chavolla 2006). Taking these states into account brings the count to 22 states implementing reform through regulatory action and 14 through legislation. Thirty-one states have implemented reform through either regulatory action or legislation. This total is less than the sum of the individual counts for regulatory and legislative action because in some states, earlier regulatory decisions were followed by later legislative action. For later developments, see Perez-Chavolla (2007).
In particular, a facilities-based provider that satisfies this criterion is one which is capable of serving at least 75% of the local exchange lines in the geographic area at issue with either its own facilities or a combination of its own facilities and services leased from other providers.
In particular, Landes and Posner (1981, pp. 975–976) explain that in the presence of effective regulation, a high market share is essentially meaningless. Similarly, a high market share that was the result of regulatory entry restrictions that have been removed may very well be an historical vestige, not an indicator of market power in the present and into the future.
Kahn’s (1988, Vol. II, Chapter 5) seminal text identifies the resulting destructive competition as the historical rationale for regulation of transportations industries such as airlines and trucking. This form of regulation, which was much more a form of protecting competitors rather than consumers, was widely abandoned in the US over 25 years ago during Alfred Kahn’s service in the Carter administration.
For example, if current volume were 100, price $1, and marginal cost $0.20, and a 5% price increase produced a 6% loss in volume, the change in profits would be the increased revenue from the remaining 94 units ($0.05 × 94 = $4.62) plus the savings in costs from not having to serve the six lost units ($0.20 × 6 = $1.20), offset by the revenue associated with the loss volume ($1 × 6 = $6). Because the lost revenue exceeds the other two components, the price increase is unprofitable.
Because incumbent providers typically offer wireless and increasingly VoIP services, the question of whether such “intrafirm competition” similarly constrains market power arises. In the case of wireless, a wireless provider with a wireline affiliate must compete vigorously for customers, regardless of whether some of them are also its wireline subscribers: if those wireline customers were considering changing to wireless, the affiliated provider would obviously be better off competing vigorously to retain them as wireless subscribers than losing them altogether to a competitor, i.e. affiliated and unaffiliated wireless alternatives impose similar competitive pressures on the incumbent wireline provider’s service. The situation for VoIP is probably different and is the reason for the “over cable modem qualifier.” The incumbent’s VoIP is more likely to be a technological replacement (packet switching for circuit switching) of traditional services and thus less likely to constrain market power than VoIP over cable modem. This latter observation, however, does not imply that the incumbent’s VoIP service should be regulated. In the event that competition from other sources was insufficient to justify the removal of price regulation, applying regulatory protections to only the traditional service would protect consumers, while at the same time provide the dynamic efficiency incentives for the incumbent to innovate.
While the precise ratio of marginal cost to price is an empirical issue, Hausman’s basic point does not depend on that ratio being exactly 20%. For example, if the ratio of marginal cost to price were 50%, the critical share becomes 9%. And the ratio is likely to be well below 50% for two fundamental reasons. First, even for loop plant, certain facilities are basically insensitive to volume (and therefore not included in marginal cost). For example, the amount of investment in poles, conduit, and trenching along particular routes does not increase proportionately as the number of subscriber lines increases. Second, because network facilities generally last for a number of years, a decrease in volume could merely produce an increase in spare capacity, rather than a cost reduction. Alternatively, the long-lived nature of network assets suggests that the relevant cost standard may be avoidable cost, which in the shorter-run decisions to respond to competitive entry and prices may not include capital costs, which are part of marginal costs. With this interpretation, the cost/price ratio and the corresponding critical share would be even smaller.
Indeed, other sources, e.g., Wheelock (2004) report that over 14% of customers use their wireless phones as their primary phones.
The debilitating impact of rather modest losses in volumes has implications for the development of viable wholesale markets as well. As a result of intermodal competition, the incumbents are losing both customers and minutes from their networks. While an incumbent would prefer to keep the end user as its customer and collect the resulting retail revenues, it clearly would rather have the wholesale traffic on its network than forfeit this revenue entirely because that traffic ends up on alternative facilities of an intermodal competitor. As a result, incumbents and CLECs alike would have a market-based incentive to create rational, voluntary wholesale arrangements at compensatory rates.
Tardiff and Taylor (2003), referencing Farrell (1997) and Kahn (1998, pp. 56–60). While it does not necessarily endorse the proposition that the widespread availability of wholesale inputs has made telecommunications markets contestable, the FCC (2005e) Omaha decision did observe such availability as a factor in concluding that barriers to entry are low.
My conclusion mirrors Weisman’s (2006b) regulatory principle that ex ante regulation should generally give way to ex post regulation. The Telecommunications Policy Review Panel (2006, Executive Summary, p. 4) proposed a similar recommendation for Canadian telecommunications markets:
[I]t is time to reverse the current presumption in the Telecommunications Act that all services should be regulated unless the...CRTC issues a forbearance order...The report recommends comprehensive changes to the regulatory framework to accelerate the job of deregulating telecommunications markets, while retaining essential protections for end-users and for the maintenance of competitive markets. These changes include:...moving away from...ex ante regulatory prescriptions to approaches that place greater reliance on...ex post regulatory intervention, based on verified complaints or significant market problems.
Significantly, the Governor in Council (Industry Canada 2007) articulated the same objective of relying on market forces to the maximum extent possible when modifying the CRTC’s forbearance decision to employ a facilities-based competitive presence test in place of a market share test. This action is consistent both with the analysis in the previous section that facilities-based entry into markets with relatively high proportions of costs which are fixed and/or sunk greatly attenuates market power and with Landes and Posner’s (1981, p. 949) recommendation that the capacities of entrants, rather than their current output, be used when measuring market shares. Under the latter interpretation, when one facilities-based entrant has covered the incumbent’s geographic territory, the latter’s effective market share has dropped to 50% and when two such entrants (as is required for residential services in the form of at least one wireline based entrant and a wireless competitor), the effective incumbent share drops to one-third.
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Tardiff, T.J. Changes in industry structure and technological convergence: implications for competition policy and regulation in telecommunications. IEEP 4, 109–133 (2007). https://doi.org/10.1007/s10368-007-0083-7
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DOI: https://doi.org/10.1007/s10368-007-0083-7