While Cox Communications can make rate decisions in a private conference room several states away, Lafayette conducts its business in an open forum, as it should. While Cox can make repeated and periodic requests for documents under the Public Records Law, it is not subject to a corresponding obligation – a “show me your plans, but don’t dare ask to see mine” mentality. Louisiana law limits the ability of a governmental enterprise to advertise, but nothing prevents the incumbent providers from spending millions of dollars in advertising campaigns. An important focal point of the legal challenges involved the right or ability of Lafayette to pledge assets of the utilities system as security for the bonds, something that the private corporations do all of the time without the slightest scrutiny. To be sure, the “playing field is not level,” but it is the government which is disadvantaged, not the private companies.
Level Playing Field
Many private, often incumbent and monopolistic, providers use the term "level playing field" as code for ensuring communities are unable to build their own networks. They do not actually want a "level playing field," they want more advantages for their businesses.
Consider the fight in 2009 over this issue in North Carolina:
HB 1252 would create extraordinary financial accounting and administrative burdens on municipal broadband providers that would render their existence fiscally difficult, if not impossible. The bill also subjects municipalities to the new jurisdiction of the North Carolina Utilities Commission, while not requiring the same of private providers. Also troubling is the injunctive relief provision, which could encourage litigation for purposes of gaining competitive advantage. Furthermore, the legislation appears to prevent municipalities from pursuing alternative funding sources, such as broadband grant programs included in the Federal stimulus bill, the American Recovery and Reinvestment Act of 2009. Source: Save NC Broadband Blog
Additionally, the process in North Carolina reveals the extent to which private providers like Time Warner buy legislation in some states.
While big companies like Time Warner Cable pretend to be the underdog compared to community networks, the reality is that big national corporations have far more advantages than any local government. We created this video to illustrate the point:
Cable and telephone companies are able to cross-subsidize their networks - they can charge more in the areas they serve where there are no competitors in order to charge less in a competitive community. Numerous state and federal laws prohibit public entities from cross subsidizing across services. Further, when private companies are forced to have open meetings and disclose their business plans like their public sector counterparts, we will be closer to a "level playing field."
Who Has the Advantage?
In 2005, the Florida Municipal Electric Association rebutted many of the common charges levied against publicly owned networks. The following charts are from "The Case for Municipal Broadband in Florida." It must be noted that different states have different laws, but in general, claims that the public sector has overwhelming advantages over the private sector are absolutely false.
|Taxes and revenues||Public||Private||Gross Receipts Taxes||Yes||Yes|
|Communications Services Tax||Yes||Yes|
|Payment in lieu of taxes||Yes||No|
|Corporate Income Tax||No||Yes|
|* Under dispute at the Florida Supreme Court|
|Public purpose requirement||Yes||No|
|Public records law||Yes||No|
|Open meeting law||Yes||No|
|Public hearings on budget/financing||Yes||No|
|Public election or recall of CEO (Mayor)||Yes||No|
|Conflict of interest standards||Yes||No|
|Intra-fund transfer restrictions||Yes||No|
|Local regulation via referendum and initiative||Yes||No|
"Private sector companies have completely different goals, driven by shareholders’ and the financial community’s demand for high, near-term profits from user revenues. In the face of this reality, it is completely inappropriate to use of conventional Wall Street metrics to judge whether a municipal project is successful. The metric for success certainly should not be: “If this were a private firm, would Wall Street like it?”
Source: Jim Baller and Casey Lide - "The Case for Public Fiber-to-the-User Systems"
The very idea that one could somehow balance the advantages and disadvantages of different providers is suspect, as explained by the Georgia Public Service Commission (cited by Baller and Stokes):
Preventing anticompetitive practices, unfair competition, and abuse of market position does not mean that the Commission must impose conditions on every applicant which has some advantage not shared by every other applicant. The Commission is required to treat all LEC's [Local Exchange Providers – i.e. phone companies] equally, not make all LEC's equal. BellSouth and the large cable companies certainly enjoy better capital costs than a typical small business owner. Does this put the small company at a competitive disadvantage? Of course. Should the Commission determine which LEC has the highest capital costs and require that all other companies impute that amount into their rates to level the playing field"? Certainly not. If Marietta has to comply with expensive open records requirements or expensive municipal bidding requirements, should those costs be imputed into the rates of all private companies? Again, no. Similarly, if BellSouth has a large tax write-off one year, it would be ridiculous to require that they impute into their tax rates the taxes they did not have to pay merely because some other company may not have had a tax write-off that year.
What is undeniable is that the public sector and the private sector serve different ends. In general, the private sector excels at maximizing returns for investors and focuses on the short term. The public sector primarily invests for the long term and in order to maximize social benefits. Therefore, the public sector and private sector use different balance sheets.
How public balance sheets differ from private
If a broadband network encourages economic development because it offers fast speeds, reliability, and affordable prices, a public balance sheet benefits tremendously as the community prospers. However, private balance sheets would not reflect many of the social benefits because they cannot be monetized for shareholders.
If a broadband network discourages economic development by foregoing costly upgrades that would improve service, the private balance sheet may benefit but the public balance sheet would suffer due to a decrease in social benefits.
When subscribers make their monthly payments, it shows up once on the private balance sheet (assuming the owner is located outside the community). Some of that money returns to the community in the form of taxes and salaries for technicians. However, on a public balance sheet, the revenue has a larger multiplier effect because that money stays in the community.
Another significant difference between the balance sheets is how much profit is necessary. On a private balance sheet, there is a pressure to profit quickly and increase profits year after year. On the public balance sheet, if it takes ten years to break even, that is acceptable (when was the last time a road "broke even?"). The pressure to profit on the private side results in off-shoring or cutting back on local support that degrades service. On the public side, if a network takes an extra year to generate net income because it has hired another local technician to ensure prompt service, the community benefits.
We are not opposed to profit -- in fact, we work regularly with small businesses to create an environment that encourages them to succeed. In order to succeed, they need access to fast, affordable, and reliable broadband connections. But networks that prioritize profit first tend not to deliver the connections on which all other businesses depend.