Sprint

Does the FCC’s concept of a “virtuous circle of innovation” mean fostering a full and true “circle of innovation,” of not only edge provider innovation, but also ISP innovations of zero-rating pricing plans that lower users’ bandwidth costs and better fund more broadband deployment?

Please consider how the FCC’s eventual treatment of the many ISP plans for zero-rating pricing innovations could impact ultimate appellate review of the FCC’s Open Internet Order.   

The D.C. Circuit Court of Appeals in Verizon v. FCC said that the FCC’s 2010 justification -- for imposing net neutrality rules via its Section 706 authority, for the purpose of promoting broadband deployment and the “virtuous circle of innovation” that fuels Internet growth -- was reasonable and justified by the evidence.  

Given that the USTelecom v. FCC appellate challenge of the FCC’s Open Internet Order is so important to net neutrality, the FCC’s authority over the Internet, and broadband providers’ future, and given that Judge Tatel’s thinking is so important to the outcome of this case, wouldn’t it be important to better understand Judge Tatel’s personal reasoned public explanation of how courts adjudicate cases just like USTelecom v. FCC?

The central overriding question in the USTelecom v. FCC case challenging the FCC’s Open Internet Order may be: did the FCC read Judge Tatel right in that he de facto guided the FCC to pursue Title II to create the most solid legal foundation for net neutrality? That has been the public legal mantra of the FCC and the net neutrality movement for well over a year.

In the oral arguments last Friday before the D.C Circuit Court of Appeals, what did Judge David Tatel potentially signal about the Title II over 706 legal premise of the FCC’s case?

Please don’t miss my latest Daily Caller op-ed, “America’s Bipartisan Spectrum Opportunity.”

• It spotlights the huge opportunity for Congress and the Administration to work together on a bipartisan basis to get much needed radio spectrum reallocated for licensed and un-licensed use soonest.

Do not let the FCC’s likely unlawful means of broadband Internet regulation, i.e. Title II, distract you from the additional likelihood that two primary ends of supposed net neutrality “policy canon” i.e. bans against “paid prioritization” and “two-sided markets” (only users should pay), are also likely unlawful, even under Title II, sans new legislation.

A preview of oral arguments December 4 before the D.C. Circuit Court of Appeals in the legal challenge to the FCC’s 2015 Open Internet Order warrants more than the already well-covered standard comparison of both sides legal arguments over the legality of Title II.

In the 2014 Verizon v. FCC decision, that overturned much of the FCC’s net neutrality “effort to compel broadband providers to treat all Internet traffic the same regardless of source,” Judge David Tatel’s starting point was what does the FCC want to compel from others and does it have the legal authority and latitude to do so – sans new legislation.

(This analysis assumes the near obvious that Judge Tatel will lead and write this decision.)   

You know there are big problems with the so called “principle” of net neutrality when the New York Times writes an editorial headlined “Why Free Can Be a Problem on the Internet” and their editorial has nothing to do with protecting consumers’ privacy/safety or protecting content from piracy, but it is only about the potential problem of consumers enjoying free Internet content for marketing purposes!

What a scandal! Someone call the FCC! Innovative commerce is happening on the Internet!

Few things make net neutrality activists look sillier, more nonsensical and hypocritical than their knee-jerk somber opposition to innovation in broadband pricing and marketing via differential pricing, sponsored data, zero-rating plans or other creative and experimental pricing or marketing plans – that all naturally result from a highly competitive wireless market.

Please don't miss my latest Daily Caller Op-ed, “Net Neutrality Trumping Privacy Undercut the US-EU Data Safe Harbor.”

• It is proof positive of the law of unintended consequences coming home to roost for the U.S. Government.

No surprise that political activist Larry Lessig, the intellectual leader of the net neutrality and anti-copyright movements, ran one of the most cynical, undemocratic, and stunt-driven Presidential candidacies ever, because that’s exactly the kind of cynical, undemocratic, stunt-driven campaigns his political followers have run to un-democratically dictate net neutrality and to undermine copyright protection online. 

The “common” thread of Mr. Lessig’s political grand strategies is his core elitist political assumption that people are stupid and that he can manipulate the masses into believing whatever he wants them to believe.  

It is supremely rich and ironic that Mr. Lessig would run a Presidential campaign with the stated singular purpose of ending “corruption” by passing his version of campaign finance reform legislation, with such an apparent corrupt political Presidential campaign strategy. 

Let’s review Mr. Lessig’s stated Presidential campaign strategy to see if it appears corrupt.   

There are troubling signals that the FCC is gearing up to further increase regulation of cable -- on top of the extra-legal new utility regulation the FCC already did in its 2015 Open Internet Order. 

What is profoundly troubling is the abject illegitimacy of their premise for more regulation of cable, i.e. the FCC’s new arbitrary and capricious definition of broadband that illegitimately redefined long-recognized, strong broadband competition -- out of existence with the stroke of a pen.

So what are the signals of more cable regulation? Two speeches from the FCC Chairman, one from the FCC General Counsel, another from the DOJ Antitrust Chief, a variety of Hill and edge-industry entreaties to regulate cable more via new MVPD or ALLVID regulatory proceedings, (but of course without regulating favored edge providers), and an explosion of new opposition to the proposed Charter-Time-Warner merger (by the exact same cast of characters whose opposition doomed the Comcast-Time-Warner merger).

This broad simultaneous level of focused regulatory chatter and organized activity is not coincidental, but highly-orchestrated and abjectly illegitimate.

Why is more cable regulation abjectly illegitimate?   

The FCC’s approach to special access is all wrong because they should be doing the exact opposite of what they are doing. The FCC should be price de-regulating special access, not signaling increased micro-regulation of special access rate terms and conditions.

Like an ostrich, the FCC has its head hidden in the sand on its approach to special access regulation, hoping that no one notices that the rest of its body is fully exposed.   

If the FCC can convince everyone to join them and put their heads in the sand too, and to look at special access regulation in the dark of self-defined isolation, and ignore the broader context of the competitive U.S. communications sector visible all around them, the FCC has a reasonable chance of sounding reasonable.

However, if anyone has their head out of the FCC’s regulatory sandpit and looks around for a moment at special access regulation in the broader context of the real world, more special access regulation looks ridiculous, just like the exposed back-end of an ostrich does when it hides its head in the sand.