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Submitted by Scott Cleland on Mon, 2013-09-09 16:21
FOR IMMEDIATE RELEASE
September 9, 2013
Contact: Scott Cleland
“A Very Good Day for Broadband Pricing Freedom”
Submitted by Scott Cleland on Mon, 2013-09-02 21:18
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?
Submitted by Scott Cleland on Tue, 2013-08-20 17:30
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.
Submitted by Scott Cleland on Wed, 2013-08-07 17:35
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?
Submitted by Scott Cleland on Thu, 2013-07-25 18:44
Submitted by Scott Cleland on Tue, 2013-06-25 18:06
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.
Submitted by Scott Cleland on Fri, 2013-06-21 15:27
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.
More Legal Trouble for FCC’s Open Internet Order & Net Neutrality -- Part 29 FCC Open Internet Order SeriesSubmitted by Scott Cleland on Sun, 2013-06-02 18:32
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 SeriesSubmitted by Scott Cleland on Tue, 2013-05-21 18:23
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.
Submitted by Scott Cleland on Thu, 2013-05-16 14:32
Please see my latest Daily Caller op-ed: "America's private video market success" here.
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Part 1: Netflix' Glass House Temper Tantrum Over Broadband Usage Fees