FCC Chairman Pai’s Brilliant Title II Net Neutrality Checkmate Strategy

Net neutrality proponents who summarily dismiss any potential for Congress to resolve net neutrality with a legislative compromise, might want to rethink that heroic assumption after closely reading the Pai-FCC’s Title II NPRM.

Apparently, Chairman Pai has figured out a way that could overturn the FCC’s 2015 Open Internet order, and in addition, practically neuter the going-forward precedential value of the D.C. Circuit Court of Appeals’ USTelecom v. FCC decision that upheld the legality of the 2015 FCC order.

Importantly, it is the continuation of the legal validation and legitimacy of the USTelecom v. FCC decision that gives net neutrality proponents their long-term hope that they could restore a Title II net neutrality regime in the U.S. with just a simple FCC majority vote in 2021 or 2025, just like they did in 2015.

NetCompetition: Chairman Pai Doing Right Thing in the Right Way on Title II

FOR IMMEDIATE RELEASE, April 26, 2017, Contact:  Scott Cleland 703-217-2407

 

In Openly Previewing His Plans for Overturning the FCC’s 2015 Title II Open Internet Order, FCC Chairman Pai FCC is Doing the Right Thing for the Right Reasons in the Right Way, in Contrast to the Wheeler FCC Doing the Wrong Thing, for the Wrong Reasons, in the Wrong Way 

WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition: 

 

“FCC Chairman Pai is giving a clinic in FCC and regulatory leadership: in doing the right thing, i.e. starting the process of returning the FCC to the bipartisan, light regulatory, Internet approach that worked exceptionally well from 1996-2015; for the right reasons, i.e. the 2015 order was unnecessary, unwarranted and uncertain, and repealing it will promote economic growth, jobs, broadband deployment and competition; and in the right way, i.e. openly stating what the FCC will be doing and why, and promising the UNPRECEDENTED FCC TRANSPARENCY OF SHOWING A DRAFT FCC PROPOSAL TO THE PUBLIC THREE WEEKS BEFORE A PUBLIC VOTE!”

 

“If the previous FCC had not acted for the wrong reasons, i.e. because of inappropriate White House pressure, in the wrong way, i.e. claiming to be all for openness but running a non-transparent decision-making process, they would never have done the wrong thing: i.e. hyper-regulating an economically productive and competitive industry that had done nothing to warrant any regulation, let alone the strongest possible monopoly/utility regulation.”

 

 

NETCompetition.org is a pro-competition e-forum representing broadband interests.

Six definitions that are preventing consensus on net neutrality -- The Hill Op-ed

Please don’t miss my latest The Hill op-ed: “Six definitions that are preventing consensus on net neutrality.”

 

Google’s ad blocking exposes the company’s hypocrisy on net neutrality

 

Please don’t miss my latest The Hill op-ed:   Google’s ad blocking exposes the company’s hypocrisy on net neutrality” (& copyright).  

 

NetCompetition: FCC Promoting Private Over Public Infrastructure Investment

FOR IMMEDIATE RELEASE, April 20, 2017, Contact:  Scott Cleland 703-217-2407

Pai FCC is wisely spurring private broadband infrastructure investment and facilities-based competition, which is what makes America’s Internet infrastructure unique in the world, and which is the opposite of the Wheeler FCC’s broadband infrastructure policy of Title II public utility regulation and promotion of taxpayer-funded municipal broadband networks

WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:

“In a series of consistent digital infrastructure decisions today by the Pai FCC, the important policy takeaway is a Pai-FCC laser focus on encouraging private sector infrastructure investment and facilities-based competition, a complete reversal of the Wheeler-FCC’s opposite laser focus of discouraging private broadband infrastructure investment via aggressive promotion of taxpayer-funded, municipal broadband infrastructure investment, and maximal Title II public utility regulation of competitive broadband facility providers.”

“These Pai-FCC infrastructure decisions today represent a clear return to the bipartisan 1996 Telecom Act purpose of “promoting competition and reducing regulation,” and the consistent bipartisan broadband policies of the 1997-2013 FCC’s of Senate-confirmed FCC Chairmen Kennard, Powell, Martin, and Genachowski, that all promoted facilities-based broadband competition and investment, and consistently rejected Title II utility regulation of broadband Internet access.”

Google-Russia Antitrust Deal Has Big Implications for EU Cases, Trump DOJ

There are potentially big implications for Google, complainants, and antitrust authorities around the world, from Google’s antitrust settlement with Russia’s Federal Antimonopoly Service (FAS)

FAS previously ruled officially, and was upheld by the Russian Supreme Court, that Google-Android illegally abused its dominance in forcing handset manufacturers to strongly preference Google search and other apps, as a contractual requirement to license Google’s official Android operating system.

In this settlement, Google agrees to a variety of significant Android/Chrome behavior changes that, if they work in practice as represented, will enable other search engines, like Yandex, and app developers to have significantly more competitive opportunities in Russia. The arbitration agreement is for six years and nine months and comes with a fine of ~$7.8m -- the equivalent of 46 minutes of Google’s annual revenues.

What Google gets in return, is big brand protection in that it can claim: a) the settlement was voluntary; b) there is now no more Russian official finding/legal precedent that Google is dominant or a monopoly, or has done anything wrong (even though it officially did before this superseding settlement); and c) a Google-Android antitrust settlement template that Google can shop to other countries, (that is friendly to Google in that Google knows this settlement won’t be as effective elsewhere, because other countries sans China and South Korea, do not have a material competitive mobile search offering to Google like Russia’s Yandex.)

NetCompetition: FCC BDS Deregulation to Promote Facilities Competition

FOR IMMEDIATE RELEASE, March 23, 2017, Contact:  Scott Cleland 703-217-2407

Public Knowledge/Big Internet Oppose FCC Business Data Services Deregulation Because They Want More Unnecessary Title II Utility, Price Regulated Resale Subsidies Instead of Facilities-Based Competition & New Fiber and Fixed Wireless/5G Broadband Investment

WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:

“This Thursday, the FCC will vote on its Business Data Services Order and is expected to finally deregulate broadband prices for the business market, a decade after the FCC fully deregulated broadband prices for the consumer market. Thus, this FCC BDS order is all about the future of facilities-based broadband competition and transitioning away from Title II, price-regulation-dependent, resale competition.”  

“Kudos to Chairman Pai and Commissioner O’Rielly’s vision for promoting more facilities-based broadband competition to replace slow, pre-1996, legacy copper facilities with modern fiber optic or gigabit fixed wireless facilities, to promote infrastructure investment, economic growth and job creation.”

“Twenty years after the 1996 Telecom Act promoted competition over regulation, and now that the cost of deploying gigabit speed, fixed wireless, broadband facilities over the last 500 to 2000 feet has fallen precipitously in the last few years, it is high time that for-profit corporations providing broadband data services to the business market, get off the FCC price regulation dole and individually, or as a private consortia, build their own competitive broadband facilities.”

6 Reasons Trump DOJ Will Take Lead from FTC in Google Antitrust Enforcement

The evidence is compelling that the DOJ will replace the FTC as the lead Sherman Act antitrust enforcer on the biggest Google antitrust matters during the Trump Administration.

A huge action forcing event for the Trump DOJ Antitrust Division is coming, most likely this June/July, when EU antitrust authorities most likely will conclude the first of three antitrust cases against Alphabet-Google, and officially rule Google is a 90+% search monopoly that has anticompetitively abused its monopoly position in search, and impose a traditional monopoly nondiscrimination principle remedy that Google treat its shopping comparison competitors as it treats itself.

While conventional wisdom assumes the FTC will continue as the Google antitrust lead, that is very unlikely to continue, because of two Google antitrust gamechangers, the replacement of President Obama with President Trump, and the EU’s coming official antitrust conclusion that Google is in fact a monopoly that acts anticompetitively in over 30% of the world.

Since so much flows from the baseline assumption of which U.S. entity will be the Google antitrust lead, the DOJ or FTC, it warrants closest examination.

Summary of six reasons DOJ will take the Google antitrust lead from FTC

(1) Institutionally, DOJ is the United States’ antitrust lawyer and the official liaison with other countries.

Why Title II Net Neutrality Directly Conflicts with Consumer Privacy

At best the notions of net neutrality and consumer privacy are somewhat in tension.

At worst, they are in opposition, and harm consumer privacy as happened when the Wheeler-FCC subordinated the goal of what’s best for consumer privacy to the conflicting and overriding goal of what was best for imposing maximal, Title II net neutrality.

Net neutrality and consumer privacy are in tension because they are very different concepts, priorities, and approaches for the handling of information online.

However, the original tension between the FCC’s first concept of net neutrality and consumer privacy was very limited because the Martin-FCC’s 2005 Internet Policy Statement on net neutrality was an extension of the Powell-FCC’s “Internet Freedoms” concept of net neutrality, and both approaches were consumer-first, i.e. very clearly centered around what consumers could expect from the Internet.

What thrust them into the more opposing concepts that they are today?

It was when net neutrality flipped from being primarily a consumer-centric principle to an edge-provider centric principle defined by Google, Amazon, Facebook and Netflix; and from the enforcement of a general broadband nondiscrimination principle, to the preemptive imposition of “the strongest possible,” specific, utility rate regulation framework – i.e. Title II of the 1934 Communications Act -- on a competitive industry that had done nothing wrong to warrant it.

Trump Administration Implications for Google Antitrust in EU, US & Markets

Conclusions:

Most of what we have learned in the five months since the election indicates that the Trump Administration is not going to be Google’s antitrust advocate and protector like the Obama Administration effectively was from 2013-2016, in de facto shutting down any real U.S. antitrust scrutiny of Google, and in turn implicitly discouraging antitrust enforcement of Google in the EU and around the world.  

This antitrust enforcement sea change has three big picture implications: for the EU, for the U.S., and for markets.

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