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Sending the Wrong Signals to the Wireless Marketplace: The Return of the Spectrum Cap

Today the commissioners of the Federal Communications Commission (FCC) are meeting to vote on two issues that will be pivotal to the future of the wireless industry: (1) whether to impose a “spectrum cap” on wireless providers, and (2) how to design the “incentive auction” of the broadcasters’ spectrum. There is a lot at stake for the U.S. economy in getting these policies right: A new analysis by Deloitte estimates that mobile broadband network investments over the period 2012–2016 could expand U.S. GDP between $73 and $151 billion, and account for up to 771,000 jobs.

A spectrum cap would prevent a single provider (say, Verizon) from acquiring more than a certain amount of the airwaves or “spectrum rights” in a given geographic area (say, Washington, D.C.). Spectrum is the most important input in the supply of wireless services—without it, a provider literally can’t compete. The objective of a spectrum cap is to prevent any single carrier from monopolizing a key input in the production process; more wireless entry means greater competition, which means lower wireless prices. So why is this idea so controversial?

The reason is that even carriers with significant spectrum holdings need more of it to survive. To make things concrete, compare the spectrum holdings of Verizon with those of Sprint and T-Mobile. According to Deutsche Bank, Verizon has about 18 percent of all available spectrum on a population-weighted basis (including the spectrum recently obtained from SpectrumCo), compared to about nine percent each for Sprint and T-Mobile. Yet Verizon is desperate for more spectrum because its subscriber base is larger than that of its rivals, and because today’s wireless customers are finding cool (and bandwidth-intensive) things to do with their new 4G phones, straining the capacity of its wireless network. According to one noted wireless analyst, the demand for mobile broadband will surpass the spectrum available to meet it in mid-2013. Even the Chairman of the FCC recognizes that “biggest threat to the future of mobile in America is the looming spectrum crisis.”

Reinserting the spectrum cap—it was sent to the regulatory dustbin several years ago—and setting it at say one-fifth of all available spectrum would effectively bar Verizon from acquiring any more spectrum, whether in an auction or through the secondary markets. And that means that Verizon’s customers would suffer a serious degradation in their wireless connections relative to a world in which Verizon could augment its spectrum capacity. As one Nobel laureate economist famously said, “there’s no such thing as a free lunch.” Taking away from Verizon to give to smaller carriers entails serious tradeoffs.

And to understand those tradeoffs, the FCC must think hard about what the ideal market structure of the wireless industry should look like. A spectrum cap equal to one-fifth of all spectrum implies that the ideal market structure is five national carriers. But even five might be too many given the evolving wireless technology: With the enhanced download speeds made available by 4G networks—Verizon’s 4G network is seven times as fast as its 3G network according to PC World—wireless consumers will be streaming high-definition movies and FaceTiming with their friends, placing even greater pressure for more spectrum. The FCC needs to come to grips with the fact that its policies are in conflict with these technological trends and the associated economies of scale in the supply of wireless services.

Five carriers might also be the wrong number when one considers the role of mobile broadband in the larger broadband market. According to the FCC’s Wireline Competition Bureau, as of mid-2011, 55 percent of all U.S. households relied on a single wireline broadband provider capable of meeting the FCC’s definition of broadband. This means that wireless 4G connections could serve as the second broadband pipeline in over half of U.S. homes. Given the competitive implications of moving from one to two broadband providers—cable modem prices have been shown to fall significantly in the face of competitive entry—the right number of wireless carriers might be closer to three.

But who really knows? The market should decide whether the optimal number of wireless carriers is three or four or five, not the regulators. If the FCC is worried about a single carrier buying up the entirety of the spectrum in the forthcoming broadcast spectrum auction, then a simple rule forbidding such an outcome in that auction is more efficacious than a clumsy spectrum cap. By micro-managing the structure of the wireless industry, the commission tasked with overseeing the communications industry risks making the wrong call.

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Divining a Regulator’s Intent

Regulated firms and their Washington lawyers study agency reports and public statements carefully to figure out the rules of the road; the clearer the rules, the easier it is for regulated firms to understand how the rules affect their businesses and to plan accordingly. So long as the regulator and the regulated firm are on the same page, resources will be put to the most valuable use allowed under the regulations.

When a regulator’s signals get blurry, resources may be squandered. For starters, take the FCC’s annual wireless competition report and the Commission’s pronouncements on spectrum policy. For several years, the competition report cited a trend of falling prices and increasing entry as evidence of robust competition while at the same time noting that industry concentration was slowly rising.

In an abrupt turnaround, the FCC’s 2010 competition report cited the slow but steady increase in concentration as evidence of a lack of competition despite the continued decline in prices and increase in new-firm entry. In other words, in the face of the same industry trends, the agency’s conclusion on competition reversed. The increased weight placed on concentration also seemed at odds with the DOJ’s revised Merger Guidelines, which deemphasized concentration in favor of direct evidence of market power.

At last week’s Consumer Electronics tradeshow, the FCC chairman suggested that the competition report’s objective was not to provide guidance on Commission policy but instead “to lay out data around the degrees of competition in the different sectors.” So much for clearing up the ambiguity. Industry participants expect more than a Wikipedia entry on something so weighty as an annual report to Congress regarding one of the economy’s most critical sectors.

The agency’s signals on spectrum policy are even murkier. On one hand, during the last few years, the current FCC has been calling for more frequencies to be made available to support and grow wireless broadband networks. The FCC has also been publicly supporting voluntary incentive auctions—a market-based tool to compensate existing spectrum licensees for returning their licenses—as the best way to reallocate unused broadcast spectrum to wireless broadband. However, in a confusing set of remarks at the same tradeshow, the FCC now seems to be saying that it only wants to see more spectrum made available if the agency can dictate who gets the spectrum and how they can use it. The very discretion that the FCC now seeks will invite rent-seeking behavior among auction contestants, who will lobby the agency to slant the rules in a way that limits competition and advances their narrow interests; better to immunize the FCC from this lobbying barrage by limiting its discretion.

The agency’s inconsistent and confusing analysis and statements in these two critical policy arenas—wireless competition and spectrum policy—created the perfect storm last year when AT&T sought to acquire T-Mobile. AT&T argued that it wanted to purchase T-Mobile and use its spectrum to augment existing spectrum and infrastructure resources, consistent with the agency’s acknowledgement that wireless carriers needed more spectrum to support surging demand for bandwidth-intensive wireless services such as streaming video. Had AT&T understood the FCC’s intentions, it would not have offered a four-billion-dollar breakup fee to T-Mobile’s parent; these resources could have been put to better use.

The singular objective that should drive the Commission in all matters wireless is getting spectrum into the hands of firms that value it the most. The last 20 years of wireless-industry growth has proven that those who value spectrum the most put it to use most quickly. To commit to this course of action, the agency needs to more clearly and consistently signal its regulatory intentions. If the agency wants to spur competition, it should support Congressional efforts to authorize incentive auctions without restrictions. It also needs to let the evidence of lower prices, growing adoption, and increasing innovation inform its understanding of the state of competition.

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