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Video: Why FCC Title II Reclassification of Broadband is a Legal Non-Starter – Part 6 of Title II Reclassification Series

Expect net neutrality proponents to pressure the FCC to reclassify broadband as a Title II common carrier telephone service, if as many expect, the D.C. Appeals Court overturns much, or possibly all, of the FCC’s Open Internet Order in the coming months.

Observers of the September 9th oral argument heard Judges Tatel and Silberman strongly question the legality of applying common carrier-like regulation to an unregulated information service.

If you want to know why it would be a legal non-starter for the FCC to then completely reverse course and try to reclassify broadband as Title II common carrier service, please listen to my video explanation, starting at 7:52. (The written version of my argument is part 5 of this post.)

Professor Crawford’s Desperate Search for a Problem to Regulate – Part 26 Net Neutrality Series

Professor Susan Crawford’s Bloomberg op-ed, “New FCC Head Must Reclaim Authority over Telecom,” exposes a profound lack of substance, in being unable to identify any real market problem warranting FCC regulation.

Let’s review Professor Crawford’s litany of contrived policy problems.

First, she charges that ISPs are working “to ensure no regulator has any real authority over them.” No, ISPs are pointing out the unique excessiveness of having THREE government entities having authority over them on the same general matters. ISPs are not asking for any reduction in authority for the DOJ or the FTC. Specifically, Verizon is asking the D.C. Appeals Court to decide if the FCC exceeded its legal authority in imposing prophylactic common-carrier-like regulation on companies that have not done anything wrong.   

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.  

NetCompetition Press Release on Verizon v. FCC Court Oral Arguments

FOR IMMEDIATE RELEASE                                           

September 9, 2013

Contact:  Scott Cleland                                                 

703-217-2407

 

 

“A Very Good Day for Broadband Pricing Freedom”

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.      

Capricious Net Neutrality Charges – Part 32 FCC Open Internet Order series

Net neutrality is in the eye of the beholder.

It’s rapidly devolved into a gotcha game -- where if someone doesn’t like something or someone, they cry “net neutrality violation!” and call for an FCC investigation -- under the FCC’s self-asserted, all-powerful Open Internet order.  

Senators and Representatives are now writing the FCC urging it to investigate CBS.com for an alleged net neutrality violation over a contract dispute over how much Time Warner Cable pays for retransmitting CBS programming. The FCC could have a role in this retransmission dispute under obsolete 1992 law, but not legitimately under the FCC’s Open Internet order.

The fact that U.S. senators and representatives imagine that a billing dispute among companies could be considered a net neutrality violation illustrates how arbitrary and capricious net neutrality politics and the FCC’s Open Internet order have become.

Apparently there is no objective, reasonable or predictable standard of what net neutrality is or what a violation of “it” is. That net neutrality has transmogrified into a political-catch-all for anything affecting consumers is powerful proof of how capriciously this issue has been abused.

Why has net neutrality become so capricious?

A la Carte TV Uneconomics

Please see my latest Daily Caller Op-ed on proposed A la carte TV Legislation -- here

  • It is Part 11 of my Defending First Principles Series.

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Defending First Principles Series

Part 1: Debasing Free Speech as No-Cost Speech

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.

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Q&A One Pager Debunking Net Neutrality Myths