NYT's fact-challenged editorial for FCC's public option

The New York Times lead editorial today, which advocates for the FCC public option for broadband, is embarrassingly fact-challenged.

First, it says that the D.C. Circuit Court decision "puts at risk big chunks of the FCC's strategy" for broadband, in direct contradiction to the FCC Chairman's testimony before the Senate just last week, where he said the FCC has the authority to implement the NBP.

Second, it says "the odds of a rational debate on the issues are slim." Obviously the NYT has not reviewed any of the literally thousands of pages of "rational" economic, investment, network management, jobs, innovation filings and comments that have been filed on the Open Internet NPRM and the NBP. It appears that the NYT Editorial board characterizes positions, analysis, arguments and evidence in disagreement with theirs as inherently irrational.

Third, the NYT editorial asserts the FCC has "indisputable authority" to reclassify broadband as a regulated common carrier. Obviously they have done zero research on this point as there has been a lot written recently about how the FCC does not have the authority to abruptly reverse existing law, policy, and precedent any time there are simply three FCC votes to do so. (See my analysis and PFF Barbara Esbin's analysis.) 

Fourth, in the same breath they acknowledge that redefining broadband to be regulated would "unleash a torrent of lawsuits," they also say "the commission has solid legal grounds to do that." huh? Notwithstanding the serious legal weaknesses identified in my PrecursorBlog and Ms. Esbin's analyses, the three reasons the editorial cites as "solid legal grounds" are fact-challenged as well.

• Only the New York Times would think that an end to telephone and cable monopolies, all the ads competing for broadband customers, and the availability of 6+ national facilities-based broadband providers is not competition. Moreover, the FCC/DOJ-approved consolidation mentioned did not reduce consumers' choices, but allowed providers to gain more scale to fund larger and faster broadband investment/deployment.
• Only this editorial board would summarily dismiss the fact that since the FCC put broadband policy principles in place, there have been only 2 FCC-investigated incidents among the literally quadrillions of communications that occur in the US each year.
• And only this editorial board would conclude that an "important communication service" must be robustly regulated in direct contradiction to the strong bipartisan consensus over the last fifteen years "to preserve the vibrant and competitive free market that presently exists for the Internet... unfettered by Federal or State regulation." 

If the New York Times Editorial Board is going to recommend reversal of the single most successful policy of former Clinton FCC Chairman Bill Kennard, (an august member of the New York Times editorial board), at least they could get their facts right and acknowledge that the policy they advocate overturning, in fact, was established by the Clinton Administration and the Kennard FCC.  

Lastly, I recommend the NYT editorial board go to the Financial Times School for Fact-Challenged Editorial Writers: that would be Tom Hazlett's outstanding fact-driven op-ed entitled: "Net neutrality: Time for evidence-based policy."