The FCC’s Abjectly Illegitimate Premise for More Cable Regulation

There are troubling signals that the FCC is gearing up to further increase regulation of cable -- on top of the extra-legal new utility regulation the FCC already did in its 2015 Open Internet Order. 

What is profoundly troubling is the abject illegitimacy of their premise for more regulation of cable, i.e. the FCC’s new arbitrary and capricious definition of broadband that illegitimately redefined long-recognized, strong broadband competition -- out of existence with the stroke of a pen.

So what are the signals of more cable regulation? Two speeches from the FCC Chairman, one from the FCC General Counsel, another from the DOJ Antitrust Chief, a variety of Hill and edge-industry entreaties to regulate cable more via new MVPD or ALLVID regulatory proceedings, (but of course without regulating favored edge providers), and an explosion of new opposition to the proposed Charter-Time-Warner merger (by the exact same cast of characters whose opposition doomed the Comcast-Time-Warner merger).

This broad simultaneous level of focused regulatory chatter and organized activity is not coincidental, but highly-orchestrated and abjectly illegitimate.

Why is more cable regulation abjectly illegitimate?   

Why the FCC Approach to Special Access Regulation Is All Wrong

The FCC’s approach to special access is all wrong because they should be doing the exact opposite of what they are doing. The FCC should be price de-regulating special access, not signaling increased micro-regulation of special access rate terms and conditions.

Like an ostrich, the FCC has its head hidden in the sand on its approach to special access regulation, hoping that no one notices that the rest of its body is fully exposed.   

If the FCC can convince everyone to join them and put their heads in the sand too, and to look at special access regulation in the dark of self-defined isolation, and ignore the broader context of the competitive U.S. communications sector visible all around them, the FCC has a reasonable chance of sounding reasonable.

However, if anyone has their head out of the FCC’s regulatory sandpit and looks around for a moment at special access regulation in the broader context of the real world, more special access regulation looks ridiculous, just like the exposed back-end of an ostrich does when it hides its head in the sand.  

Is Google-Alphabet’s Restructuring about Antitrust and Privacy After All?

The world’s self-professed know-it-all apparently does know a lot more than we do.

This piece assembles the evidence that Google’s benign PR explanation and stock-enhancement justification for its Alphabet holding company restructuring -- may be the truth, but apparently is not the whole truth and nothing but the truth, about the structural antitrust and privacy risks ahead that it clearly foresees, but is not disclosing.

What we have learned in the last two months is that Google is much more worried than it says about the risks it faces from a variety of real structural changes it may have to make in its core business overseas in the months and years ahead -- where the vast majority of Google’s users are, and from where over 50% of its revenues come.

FCC’s Double Standard Merger Review Also Warrants Antitrust Modernization

U.S. merger review double standards are not smart.

Kudos to Senators Mike Lee and Orin Hatch, and Rep. Blake Farenthold for their leadership and wisdom in advancing the SMARTER Act, H.R. 5402, “Standard Merger and Acquisition Reviews Through Equal Rules.”

Senators Lee and Hatch are right in exposing that there is no good reason for companies to have to confront different standards in enforcing our nation’s laws at the Federal Trade Commission and the Department of Justice. Specifically, Senator Hatch hits the nail on the head in saying, “businesses seeking to merge deserve consistent treatment without regard to which agency decides to review the merger.”

It is common sense that companies in every industry should be able to know in advance what consistent antitrust/competition standard they will face if they decide to merge or acquire.

What is not common sense is that only U.S. communications companies must also suffer a second merger review double standard – the FCC’s Public Interest Test (PIT) for mergers. 

Other sectors do not face the redundant burden of securing antitrust agency approval and an additional approval froman independent regulator.

Google Buys Jibe to Force Android as Web’s Default Means of Communications

Don’t miss the sweeping antitrust, privacy, security, and EU-U.S. Data Safe Harbor ramifications of Google-Android’s power grab and highly-strategic acquisition last week of Jibe Mobile’s “Rich Communications Suite” (RCS), the world’s leading, mobile-carrier, messaging platform/standard.

Summary

Simply, Google has just acquired the single missing strategic piece holding Google back from being able to centralize the recording, data transfer and analysis of most global mobile communications like it has already centralized the collection, data transfer, and indexing of the world’s digital information.

Will Government Spectrum Permissions Throttle 4G Evolution to 5G Wireless?

To try to justify mandating Title II utility regulation of broadband and the blocking of the Comcast-Time Warner acquisition, the Administration and FCC had to gerrymander broadband definitions to reach their political goal that wireless broadband service not be considered an official competitor to wireline broadband service.

Never mind the obvious: that the nearly three quarters of Americans who use a smartphone know  that one can functionally do most everything one wants on a mobile smartphone/tablet/laptop that one can do on a wireline connection. Also never mind: tens of millions of Americans who use only wireless broadband for all their Internet needs.   

To try to justify preempting State limitations of gigabit muni-broadband build-outs and its cheerleading for Government Owned Networks (GON) to politically and economically devalue commercial broadband competition, the government had to ensure that the wireless industry could not create four more very-high-speed competitors to wireline cable and telco broadband providers.

It did so by unilaterally changing Federal spectrum policy to starve and limit the amount of licensed and unlicensed spectrum available to wireless users long-term, because for smartphone users -- spectrum is speed. Limit spectrum, limit speed, to maintain the charade that wireless broadband does not compete with wireline broadband.

Top Ten Questions about FTC-Google-Android Antitrust Probe

The U.S. FTC has opened an antitrust probe of Google’s Android mobile operating system per Bloomberg reporting to investigate allegations that Google has anti-competitively limited competitive services on the Google-Android platform and extended its market power by favoring Google services over competitors’.

Top Ten Questions Raised by FTC’s Google-Android Probe     

Municipalities: Broadband Is Not a ‘Core Utility’

It is timely to fact check the Federal Government’s storyline that broadband is a ‘core utility,’ given a new White House report that directs municipalities that broadband is a “core utility… like water, sewer and electricity;” and given that a senior FCC official recently encouraged local municipalities at the NATOA conference to build their own local broadband infrastructure with the FCC’s backing now that the FCC has claimed the legal authority to preempt State laws limiting municipal broadband.    

Google’s Internet Association Hypocritically Begs Digital Protectionism

The juxtaposition of Google tacitly accusing the EU with “digital protectionism” and “discrimination” as the EU’s Digital Chief, Günther Oettinger, visits D.C. and Silicon Valley, while the Google-created Internet Association this week asks for U.S. protection from ISP “discrimination” in an appeals court brief in support of the FCC’s Open Internet order – exposes exceptional hypocrisy.

Antitrust and privacy regulators around the world weren’t born yesterday. They know Google and its online platform allies want it both ways – manipulating policy to advantage them and disadvantage their potential competitors.

The FCC’s Reasonable Unreasonableness? – A Satire

The FCC’s 218 page “brief” defending its Open Internet Order begs a big question.

How many times is it “reasonable” for any agency to assert that their core legal arguments are “reasonable” before they sound unreasonable? A few? Several? A dozen?

Of the 19 core statutory arguments in the summary defense of the FCC’s Open Internet order, TWELVE defend the order by declaring the FCC’s legal judgment was “reasonable.”

When arguing in court that the FCC has the statutory authority to common-carrier-regulate the Internet for the first time, shouldn’t the FCC be able to declare at least once in their summary defense: “the law says,” “precedent supports,” or at least “Congress intended?”  

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