Universal Broadband

The FCC's latest arbitrary and capricious torturing of the facts, law, and common sense, in its most recent 706 report, makes it obvious that the FCC is "in search of relevance" and highly insecure about its authority and role in the broadband competition era.

• Apparently, the FCC now sees competition-driven consumer benefits as a threat to the FCC's relevance, role and authority.
  • If the bipartisan policy/law of promoting competition succeeds, then the FCC by definition has less and less to do.
• It is becoming increasingly apparent that many at the FCC don't want competition policy to succeed, because they vainly believe that the FCC can, and should, mandate social outcomes "better" than market forces and consumer choice can produce via competition.

Thus the pro-regulation forces at the FCC are increasingly and proactively seeking to discredit competition policy wherever possible by ignoring and torturing any facts, evidence, logic and common sense that do not forward their government-centric-view that "expert" FCC regulators invariably know best.

Consider the common thread between:

The House's rejection of the FCC's December Open Internet order 240-179 is just the latest in an ongoing high-profile accountability gauntlet for the FCC's unauthorized, unwarranted and unjustified net neutrality rules.

• While the wheels of democracy, public accountability, and the rule of law can turn slowly, they do turn steadily.
• And from what we have seen so far, the FCC's out-of-the-mainstream, over-reach effort to regulate the Internet for the first time, has been pummeled in our Government's accountability process gauntlet to date, and it can be expected to continue to be pummeled going forward.

The Net Neutrality Accountability Gauntlet:

First, the President's January Executive Order, "Improving Regulation and Regulatory Review" to seek the "least burdensome" regulations, was a big post-mid-term election political pivot by the Administration to be more sensitive to business, economic growth and job creation concerns.

• Through the new lens of the President's Executive Order, the FCC's pre-mid-term-election-mindset net neutrality rule making has been viewed as badly out-of-focus with the renewed bipartisan interest in economic growth and job creation.

Despite Sprint and Clearwire opposing the proposed AT&T-T-Mobile acquisition, expect the DOJ and FCC to approve it, because the DOJ appreciates the facts of vibrant wireless competition and because the FCC will come to appreciate how the transaction actually helps solve many of the FCC's highest priority problems.

As a veteran analyst, who has closely covered most all of the roughly two dozen major communications mergers since the 1996 Telecom Act, it is easy to cut through the critics' standard, hyperbole and histrionics -- that they use to attack every major communications merger -- to get to the rub of this matter.

• The rub here is twofold:
  • First, the market competition facts of this transaction and the DOJ's many analogous precedents from previous similar mergers, provide no basis for the DOJ to try and block this merger; and
  • Second, the communication policy facts of this transaction will help solve many of the FCC's highest priority problems: promoting universal broadband, mitigating spectrum exhaust, accelerating broadband adoption, and promoting economic growth and competitiveness.

Like I blogged that the Comcast-NBCU merger would get approval when the hyperbole and histrionics were similarly over the top and not credible, this acquisition ultimately will gain government approval.

It has now been over a year since Google promised with great fanfare that it would "make a meaningful contribution to the shared goal of delivering faster and better Internet for everyone" by offering "ultra-high-speed broadband networks... with 1 gigabit per second fiber-to-the-home connections... at a competitive price to at least 50,000 and potentially up to 500,000 people."

What is taking so long for Google to do this?

The FCC's Open Internet order should be ripe for review and "fixing" given President Obama's pledge in his SOTU speech last night:

• "To reduce barriers to growth and investment, I've ordered a review of government regulations. When we find rules that put an unnecessary burden on business, we will fix them."

Clearly the FCC's preemptive bans, restrictions and economic/price regulation of competitive broadband providers based on scant and weak evidence of any real problem to solve, obviously place "an unnecessary burden on business" and the Administration should "fix them."

As I explained in my previous detailed post: "Why FCC's Net Regs Need Administration/Congressional Regulatory Review," the FCC's Open Internet order violates the President's pledge for regulations to:

It appears the FCC has lost sight of the essential fact that legitimate policy must come from a legitimate process.

Currently, the FCC is reportedly preparing to mandate net neutrality regulations December 21st, ostensibly to ensure an open and transparent Internet.

• Unfortunately, the FCC has not been open or transparent at all in its process of late, giving the public or markets no public justification, rationale, or explanation why what they are planning to force is legitimate.
• How does not following or respecting the spirit or principle of "openness" in FCC "open" Internet policy making -- engender legitimacy?

How does the FCC seriously threatening to impose the "nuclear option" of Title II telephone regulation of the Internet behind closed doors, in order to coerce assent for, and compliance to, unnecessary, unjustified, and unwarranted permanent net neutrality regulations under Title I -- engender legitimacy?

How does the FCC deciding its most controversial rule making exactly in between the seam of the current Congress, where ~300 members asked the FCC to defer to Congress, and the future Congress, which has made it clear they want the FCC to defer to Congress -- engender legitimacy?

FCC Chairman Julius Genachowski signaled a major FCC policy pivot Monday, from a fourteen-month focus on regulating net neutrality to apparently a new singular focus on "the economy and jobs" -- in his annual speech before NARUC, the association of state utility regulators.

• (Kudos to Randy May of the Free State Foundation for flagging this very significant policy shift in his outstanding post.)

Takeaways from the FCC Chairman's speech.

First, this is a very significant speech to pay attention to, because the FCC is laying out what the states can expect from the FCC in the year ahead.

Comcast's EVP David Cohen spoke at Brookings today on "Who should Govern the Internet."

• His thesis was dead on and well worth spotlighting -- the Internet is an engineering creation and the Internet flourishes because it lives in the collaborative and capable hands of engineers dedicated to making the Internet work for everyone.
• The speech explained how engineers working together in forums like the IETF and BITAG can solve, and solve quickly, issues that others try to unnecessarily involve lawyers and regulators in.

My big takeaway from the event, was that the FCC should declare victory -- that we have a free and open Internet -- and then get back to the real pressing work facing the FCC -- the National Broadband Plan.

There are no existing net neutrality problems, and no technical issues that the industry engineering bodies, IETF and BITAG have not been able to resolve.

There is simply no need for the FCC to fix an Internet that is already operating as the FCC and most everyone expects it to operate.

Is the market, or the FCC, the problem in "timely and reasonable" broadband deployment? 

• The FCC's just released 706 broadband report, like the wireless competition report that preceded it in May, again indicts the broadband industry for not meeting the FCC's new arbitrary, subjective, and after-the-fact expectations of where the nation should be at this particular point in time, despite the FCC's own facts that 95% of Americans have access to broadband and that Americans have more broadband competitive choices than any country in the world.

To see if the FCC is more interested in actually getting broadband deployment to all Americans fastest or in micromanaging broadband access, economics and providers -- look at how the FCC has burdened LightSquared, the start-up that seeks to be the EIGHTH national U.S. broadband competitor!

• (To count: 1. cable, 2. DSL/Fiber, 3. Verizon Wireless, 4. AT&T Mobility, 5. Sprint, 6. T-Mobile, 7. Clear (WiMax); & 8. LightSquared.)    

Some context is needed here.