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Regulation

Google: "Thinking big with a gig" or "Doing small at a crawl?"

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?

 

Will the FCC Lose the Future?

Do the actions of the FCC match the FCC's words of support for the President's commitment to the "least burdensome tools to achieve regulatory ends?"

 

  • Does the FCC truly agree with the President's State of the Union that: "We can't win the future with a government of the past?"

 

  • There is much troubling evidence that the FCC mindset is firmly wedded to the regulatory past and not committed to competitively "winning the future."

 

There are three disturbing trends at the FCC: preservationism, pessimism and silo-ism -- that all strongly indicate that the FCC's trajectory is more geared toward losing the future than winning the future.

I. FCC Preservationism (Shackling the future with the mindset, approaches and legacy networks/regulations of the past.)

Most of the last year the FCC has been obsessed with FCC historical preservation, i.e. strongly considering restoring the FCC to its past glory days with new Title II common carrier regulation of the Internet, but then settling on a 1934 era interpretation of the FCC's Title I authority at its most boundless.

 

Google: 'Settlements 'R' Us?' Is Google Choosing Regulation?

Has Google shifted its legal strategy from its scorched earth legal tactics to more brand-friendly 'Settlements 'R' Us' political tactics?

  • And is Google politically ramping up its lobbying against "search regulation" to try and minimize the restrictions it has to abide by in order to settle the phalanx of serious law enforcement investigations and lawsuits it is facing on antitrust, privacy and intellectual property?

I. There is emerging evidence that Google may be in settlement court-regulation-submission mode.

Test Case: Will FCC Respect President's Call for "Least Burdensome" Regulation?

The FCC has a bellwether opportunity at its February 8th meeting to approve a Broadband Data Modernization proposed rule making, that respects the President's new Executive Order that regulations should be the "least burdensome tools to achieve regulatory ends."

 

  • The FCC has announced that its proposed rule is to "streamline and modernize the collection of data"... "while minimizing burdens on voice and broadband providers."

 

Why this is an important test case:

 

FCC's Net Regs in Conflict with President's Pledges

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:

Why Verizon Wins Appeal of FCC's Net Regs

Top Ten: 

Verizon is highly likely to win its appeal of the FCC's December Open Internet order, because the FCC's order is likely to deeply and broadly offend the legal sensibilities of the Appeals Court, just like the FCC offended the DC Appeals Court's sensibilities when it punished Comcast for violating a regulation that did not exist.

 

  • The Court responded to that FCC injustice last April by ruling in its Comcast vs. the FCC decision that the FCC had no authority to regulate broadband or the Internet.

 

To understand the most likely outcome here, it is critical to cut through the FCC's claims, assertions, and arguments, and focus on the big picture context of what the FCC is actually doing in this Open Internet Order, i.e. what is the effect of the FCC's decision and process on the rule of law. That is what matters most to the Court.

Why FCC's Net Regs Need Administration/Congressional Regulatory Review

To promote "America's free market," President Obama today ordered a government-wide review of regulations that "make our economy less competitive," in order to take us "toward a 21st century regulatory system."

Here is the case for why the FCC's December Open Internet order deserves to be atop of the Administration's regulations to review for abolition.

 

 

First, the FCC's new Internet regulations violate the President's goal of a "21st century regulatory system" by applying "outdated" 19th century common carrier regulatory thinking and approaches to the previously un-regulated, and flourishing 21st century Internet. (Para 68)

Second, the FCC rules violate the President's goal of avoiding "excessive, inconsistent, and redundant regulation."

 

FCC Open Internet Decision Take-aways

The FCC's 3-2 vote on its Open Internet order produces several  big takeaways, despite there being no actual order to review.

Take-aways:

First, the controversy over net neutrality isn't going away; it is on path to get more controversial.

The FCC signaled this was only the beginning of a broader FCC net neutrality rule making process.

 

FCC Internet Price Regulation & Micro-management?

If David Hatch's National Journal "exclusive" report is accurate, that the FCC's proposed Open Internet order is being changed to become much more regulatory in: "addressing concerns about wireless carriers, limiting Internet toll lanes, and adding protections for a new online pricing model" -- the FCC would be hurtling itself headlong down the very slippery slope of highly-destructive FCC Internet price regulation and micro-management.

The huge folly of this trajectory is that its hard enough trying to write an enforcement solution to a non-existent problem, it is mind-numbingly difficult to imagine that the FCC can economically price regulate and micro-manage the international Internet ecosystem.

If this is the direction the FCC is headed, it is the ultimate in regulatory hubris. Not only does the FCC have no legitimate justification, rationale, authority, or consensus to micro-manage the Internet with unprecedented price regulation, the FCC has no proven regulatory competence, business expertise, or analysis on how to achieve this equivalent of doing brain surgery in mittens on a roller coaster in the dark.

Will FCC Preserve or Change the Internet?

The crux of the FCC's non-transparent proposed Open Internet Order will be whether it envisions: a very limited Internet enforcement role for the FCC, or an expansive economic regulation and Internet management role for the FCC.

 

  • The "Waxman Compromise" envisioned a very limited, two-year, enforcement-only role for the FCC that at core recognized the Constitutional authority of Congress to determine U.S. Internet policy.
  • FreePress and the Open Internet coalition envision a permanent, expansive, economic-regulation, and Internet-management role for the FCC that snubs Congress' authority, policy, and consensus.

 

The real test of whether the FCC is limited or expansive will be whether the word "preserve" is used forthrightly in the actual text of the FCC Open Internet order: i.e. will it respect or abandon Congress' meaning of "preserve" in section 230: "to preserve the... competitive free market... Internet... unfettered by Federal or State regulation."

 

  • A very-limited, Congress-deferring, true enforcement role for the FCC to address the potentiality of anti-competitive behavior,  could plausibly comport with the Congress' policy vision for a competitive, free-market Internet and also would have a better chance of surviving legal challenge.
  • On the other hand, an expansive, Congress-challenging, economic-regulation, Internet-management role for the FCC cannot plausibly comport with Congress' policy of a competitive free market Internet and would have little chance of surviving legal challenge.

 

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Q&A One Pager Debunking Net Neutrality Myths