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5 BIG Implications from Court Signals on Net Neutrality – A Special Report -- Part 34 FCC Open Internet Order Series

Economic rationality, competition, and broadband pricing freedom are the big winners, and common carrier-like net neutrality was the big loser, if the Appeals Court panel decides Verizon v. FCC as expected.

Monday’s intense tag-team grilling of the FCC’s lawyer by Judges Tatel and Silberman left most observers thinking the Court will decide it is illegal for the FCC to impose common-carrier-like regulation on broadband providers -- regardless of what else they decide.  

Why FCC won’t pass Appeals Court’s oral exam – Part 33 Open Internet Order research series

September 9th looks to be a challenging day for the FCC.

For many good reasons, the FCC will face a skeptical D.C. Circuit Court of Appeals panel Monday in oral arguments for Verizon vs. FCC. The FCC will be defending its Open Internet order which mandated neutrality.

Overall the court will be skeptical because the FCC largely ignored the law, Congress, the facts, and the Constitution. Essentially, the FCC made up an industry problem that does not exist in order to repurpose itself for the Internet age. Simply, the FCC is not asking for slack from the court (i.e. Chevron Deference), it’s basically asking for carte blanche to grant itself unbounded authority going forward.

Verizon enjoys the advantage in this case because it need prevail in only one of its several strong challenges to the FCC’s order, while the FCC must convince the court to completely reject all of Verizon’s arguments.

Specifically, why will this court be skeptical here?

Uneconomical vs. Economical Net Neutrality at the U.N. -- Part 11 Uneconomics vs. Economics Series

Information may want to be free, but physical networks are costly.

Few proponents of net neutrality appreciate the trillions of dollars of investment it has taken to build and upgrade the Internet’s vast and varied infrastructure that we all enjoy today. Simply, the Internet is not free of cost.

Economical policies have made the Internet universal and have enabled users to access the content, apps, and devices of their choice – what net neutrality is supposedly all about. On the other hand, uneconomical policies that discourage economic growth, return-on-investment, or respect for property can have unintended consequences and can threaten the proverbial goose that lays the golden eggs.      

Arbitrary Spectrum Policy – My Daily Caller Op-ed & Part 11—Government Spectrum Waste Fraud & Abuse Series

Please see my latest Daily Caller op-ed: "Arbitrary Spectrum Policy” -- here.

  • It spotlights the FCC’s arbitrary treatment of its spectrum screen policy in approving Softbank-Sprint.
  • It is also Part 11 of my Government Spectrum Waste, Fraud & Abuse Research Series.

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Government Spectrum Waste Fraud and Abuse Research Series

A 600 MHz “UNE-P-like” Wireless Auction? Part 10 Government Spectrum Waste Fraud & Abuse Series

Just when the pending 600 MHz “incentive” FCC auction looks like it could not get more unworkably complex than a reverse, “incentive,” auction with looming FCC bidder limits, T-Mobile proposes to add a “dynamic” twist where the rules would then change as the auction goes along depending on how much bidders bid relative to a government-estimate that may or may not have any basis in economic reality. 

To use a diving metaphor, this is like a synchronized diving event with unknown dozens of divers that first must do a “reverse” back flip to “incentivize” another set of divers right behind them to then do a front flip, but only if the particular diver before them does a reverse back flip that individually gets a good enough score to make a follow-on dive possible, and then if that happens for some of the diver teams, any follow-on dives would then be scored “dynamically” depending on a random target score of the previous dive, which would then determine if said diver can dive again or not.

That’s essentially the latest T-Mobile “dynamic spectrum rules” proposal for the 600 MHz auction that T-Mobile just proposed and released to reporters.

It can and does get worse.

The economist behind the T-Mobile proposal was Deputy FCC Economist when the FCC was nano-implementing the 1996 Telecom Act and came up with TELRIC pricing and UNE-P. UNE-P was an elaborate FCC ruse to get around the plain language of the Telecom Act and get a 50-60% resale discount for all telecom services (a platform) for CLECs, rather than the ~20% platform resale discount methodology in law.

U.S. Competition Beats EU Regulation in Broadband Race – Part 30 – FCC Open Internet Order Series

They were so wrong. To justify FCC market intervention, U.S. proponents of EU-style, heavy-handed broadband regulation trumpeted the narrative that the U.S. was falling behind the world in broadband.

The pro-regulation chorus of Free Press, Save the Internet, Public Knowledge, Susan Crawford, the Harvard Berkman Center, et al, sung from the same made-up song sheet that American business was failing and Government needed to take control of broadband networks to restore American leadership and prevent private enterprise from discriminating and censoring Americans free speech.

Now we know how tall a tale these pro-regulation pressure groups were willing to spin to advance their interventionist net neutrality agenda.

Facts are pesky things and the facts show that the U.S. is strongly leading the EU in the broadband race. It is so obvious even top EU officials admit the EU “needs to catch up.”

Let’s review the latest facts.

The New U.S. Spectrum Policy Has Big Problems – Part 9 -- Government Spectrum Waste Fraud & Abuse Series

Please see my latest Daily Caller op-ed: "The New U.S. Spectrum Policy Has Big Problems” -- here.

  • It critiques the new Presidential Memorandum: “Expanding America’s Leadership in Wireless Innovation.”
  • It is also Part 9 of my Government Spectrum Waste, Fraud & Abuse Research Series.

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The FCC/DOJ’s One Gigahertz Spectrum Charade – My Daily Caller Op-ed & Part 8 of Government Spectrum Waste, Fraud & Abuse Series

Please see my latest Daily Caller op-ed: "FCC/DOJ’s One Gigahertz Spectrum Charade" -- here.

  • It is Part 8 of my Government Spectrum Waste, Fraud & Abuse Research Series.

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Government Spectrum Waste Fraud and Abuse Research Series

More Legal Trouble for FCC’s Open Internet Order & Net Neutrality -- Part 29 FCC Open Internet Order Series

The D.C. Circuit Court of Appeals 3-0 decision to overturn the FCC in Comcast v. FCC/Tennis Channel spells more trouble for the ultimate legality of the FCC’s Open Internet Order. That decision spotlights that three additional D.C. Circuit Appeals Court’s judges do not agree with the FCC’s reading of the law and the facts concerning lawful network discrimination.

On the margin, this new decision should make Verizon more confident and the FCC less confident in the outcome of Verizon v. FCC.

Overall, I believe Verizon remains more likely than not to prevail in its challenge of the FCC net neutrality regulations in the FCC’s Open Internet Order, because Verizon only needs to prevail with one of its many strong arguments while the FCC must win on all of them.

How is this latest D.C. Circuit decision relevant to the FCC Open Internet order case?

Little Impact on FCC Open Internet Order Appeal from SCOTUS Chevron Decision -- Part 28 FCC Open Internet Order Series

What’s the impact on the Verizon appeal of the Open Internet Order of the Supreme Court’s strong reaffirmation of its Chevron deference standard, in Arlington v. FCC?

I believe Verizon is still more likely than not to prevail on the merits of its appeal, because the FCC’s Open Internet Order is so unambiguously far outside the bounds of the FCC’s statutory authority, that Chevron deference is unlikely to apply.

If the SCOTUS had not strongly reaffirmed Chevron deference, the FCC would have faced an even steeper fight in the Open Internet Order. Despite the SCOTUS decision not being particularly helpful in the specific FCC Open Internet case, it undeniably was very FCC-friendly overall. That’s because it affords the FCC more latitude to exploit the many legally-ambiguous seams of communications law to advance its various regulatory agendas in highly-targeted ways.


Q&A One Pager Debunking Net Neutrality Myths