There is also the case of pricing. The cost of broadband to providers is about $5 per month. It is sold, on average, for $50 a month. Inflated pricing is one of the most common features of a monopoly, both natural and privately regulated.
So if broadband is monopoly, why isn't it a public utility?
Wu, who coined the term "net neutrality," makes the simpler argument that broadband is a public utility simply because it is already used as such: "It is hard to live or do business without the Internet, and the degree to which we take it for granted suggests broadband is an essential part of the U.S. infrastructure." If it walks like a duck, and talks like a duck, it's a public utility.
Ultimately, the key point in determining if broadband is an existing public utility is the providers' use of their power. As Wu points out, "Broadband operators today own the effective bridges to the American home, and they have shown an inclination to use that power." Broadband providers have already bullied, so to speak, Netflix into paying a premium to ensure high quality streaming.
But it's not legally recognized as a public utility, yet
The formal reclassification has not occurred, and perhaps broadband will never be legally recognized as a public utility. Berin Szoka, president of TechFreedom, a tech policy think tank, believes this official recognition should never occur as it would quash innovation. Broadband providers naturally agree with his take. They have opposed becoming a legally recognized public utility because they believe it will cause "innovation and investment to collapse."
Szoka argues that public utility regulation, which as we said is very strict and highly enforced, operates under the assumption that "competition is impossible — and keeps it that way." Utility regulation keeps legacy powers in place and prevents new challengers from arising.
However, even without that regulation, competition in broadband has been relatively impossible to come by. A new company has not emerged on the market in years, and consolidation, like the recent Comcast purchase of Time Warner, continues. Even FiOS, the main alternative to broadband cable, only has an 8 percent market share.
So what do we do now?
As it stands, broadband providers have been having their cake and eating it too: they receive the gains of a market monopoly; the ability to innovate that comes without strict regulations; and freedom to operate without heavy oversight. Considering how turbulent the debate over modest FCC proposals have been, and the lawsuits the providers would certainly wield over reclassification, it seems Wheeler's encouragement of discourse around the public utility option is a strategic move rather than a call to action. Some believe Wheeler is wielding reclassification as the ultimate threat to broadband providers to behave and refrain from breaking the paid prioritization regulations he has set forth for the FCC to review.