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Regulation

FCC’s Next Overreach of Authority: Preempting States on Muni-Broadband

The FCC seems bent on overreaching their legal authority – yet again.

At the NCTA convention, Chairman Wheeler said: “I believe the FCC has the power – and I intend to exercise that power – to preempt state laws that ban competition from community broadband.” And in an FCC blog post, Chairman Wheeler also said this preemption of states on muni-broadband “is an issue that remains high on my agenda, and we will be announcing more on this topic shortly.”

FCC lawyers appear to think this is the time for more overreach of FCC authority because the legal outcome may be different than in the past.

Reality Check on the Electoral Politics of Net Neutrality

The net neutrality movement is positioning to influence the FCC, Congress, and candidates in the mid-term election cycle, to support their version of net neutrality -- i.e. FCC reclassification of broadband Internet service as a telephone common carrier service.

It is instructive to look back at what happened in the last mid-term election cycle -- in both the 2010 election, and in 2009-2010 Congress -- when the net neutrality movement last tried this.

By way of background, this week the Progressive Change Campaign Committee (PCCC) launchedNoSlowLane.com, a petition website to pressure the President and the FCC on their version of Net Neutrality.   

The 2010 Election:

The Multi-speed Internet is Getting More Faster Speeds -- Part 43 FCC Open Internet Series

The Internet has long had multiple speeds. And it constantly gets faster speeds via technological and commercial innovation, competition, and investment.

The Internet also has long met people’s diverse needs, wants and means for speed, with different technologies, pricing, and content delivery methods, and it will continue to do so.

Net neutrality activists’ latest rhetoric that opposes the FCC’s court-required update of its Open Internet rules, by implying that there haven’t been “slow and fast lanes” on the Internet before, is obviously factually wrong and misleading, both for consumers receiving content and for entities sending content.

Many in the media have fallen for this mass “fast lane” deception without thinking or questioning it.

First, isn’t it odd that those who routinely complain that the Internet is not fast enough oppose genuine FCC efforts to make the Internet faster?

Moreover, isn’t it ironic that the net neutrality activists -- who have long criticized the FCC for the U.S. falling behind in the world in broadband speeds, and long advocated for municipalities to create giga-bit fast lanes for some communities -- vehemently oppose FCC efforts to create “faster lane” Internet for those entities that need it and are willing to pay for it?

Title II Reclassification Would Violate the President’s Executive Order on “Improving Regulation”

Yet another major obstacle to net neutrality activists’ call for the FCC to reclassify broadband as a common-carrier service is the President’s 2011 Executive Order on “Improving Regulation.”

By way of background, just weeks after the FCC passed its Open Internet Order (3-2) the President issued Executive Order 13563Improving Regulation and Regulatory Review.”

Hear Cleland/Crawford Debate Common Carrier Regulation on WNYC Radio – 13 min

For those who want to hear some of the best arguments and rebuttals for/against Title II reclassification of broadband, please listen to the 13 minute back-and-forth between Professor Susan Crawford and I today.

  • Harvard Law Professor Crawford is the leading proponent for common carrier regulation of broadband.
  • Click here for the audio stream.

It’s a good precursor of the debate ahead. 

  • It is also part 8 of my Title II Reclassification Research Series

Title II Reclassification Series

Is Net Neutrality Trying to Mutate into an Economic Entitlement?

Net neutrality activist opposition to AT&T’s new Sponsored Data offering exposes that the purpose of “net neutrality/open Internet” is not just about protecting consumers and free speech, or preventing anti-competitive behavior.

Those calling for an FCC investigation of AT&T’s Sponsored Data are trying to mutate the “net neutrality/open Internet” debate to also be about whether or not there should be permanent economic entitlements, i.e. downstream “zero-price” subsidies, for edge websites and applications – to “subsidize creativity” and start-up innovation via an explicit FCC ban on network termination charges.

Translation:  all websites and applications should be entitled, by “open Internet” network design, to no cost Internet distribution/access to consumers forever, regardless of the costs that their services cause everyone else to pay for.

U.S. Wireless Economics Beat EU’s Wireless Uneconomics – Part 22 Broadband Pricing Freedom Series

A new European study from Britain’s Office of Communications tries to argue that the EU’s wireless regulation approach is better than America’s. The New York Times’ clever headline on the report sees right through it: “Europeans pay less for mobile use, but at a cost."

In Europe, regulators regularly lower prices and roaming rates for political purposes, ignoring the market economics or economic sustainability of their regulatory approach. The EU’s politics-of-the-moment interest in lower prices, based more on operating costs than total costs that fund long-term investments in infrastructure, ultimately harms consumer value.   

Perspective on the FCC’s Special Access Delay of its IP Transition – Part 7 Special Access Series

FCC staff just muffed an easy opportunity to advance the IP transition on the FCC’s timetable in the National Broadband Plan.

Apparently FCC staff missed the big picture here.

1. On November 25th, AT&T proposed a baby step forward in the IP Transition.

AT&T did not propose any change in special access rates. AT&T simply proposed that its special access contract term-lengths, synch up with the FCC’s own goals for when the IP transition should be complete.

Instead of promoting investment certainty -- by respecting its own IP transition timetable that the private sector has come to rely on for infrastructure investment planning -- FCC staff announced an unnecessary five-month investigative delay.  

A Modern Vision for the FCC – New White Paper – Part 7 Modernization Consensus Series

Please don’t miss my new white paper:  A Modern Vision for the FCC: How the FCC Can Modernize its Policy Approaches for the 21st Century (here/PDF).

  • It is the first comprehensive review of FCC policy and vision through the lens of what is modern vs. what is nostalgist.
  • Please don’t miss the first slide, a chart that concisely defines modern vs. nostalgist FCC visions.
  • My recommendation -- A Modern FCC Policy Agenda -- is near the end of this post.    

NetCompetition Capitol Hill Event:

The Modern FCC Competition-Policy Linchpin – My Daily Caller Op-ed

If you are interested in learning the linchpin issue to watch to discern whether the FCC’s competition policy will be modern or nostalgist directionally, don’t miss my Daily Caller Op-ed: “The Modern FCC Competition-Policy Linchpin” – here.

  • It is Part 6 in the Modernization Consensus Research Series.

Modernization Consensus Series

Part 1: Implications of Google's Broadband Plans for Competition and Regulation - Part 1 Modernization Consensus Series [1-28-13]

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Q&A One Pager Debunking Net Neutrality Myths