Net Neutrality

The EU, in declining to impose net neutrality regulations, adds to the growing mountain of evidence that whatever political support may have existed in the past for net neutrality regulation -- has rapidly evaporated.

• The EU's lead Digital official, Neelie Kroes, said: "We have to avoid regulation which might deter investment and efficient use of the available resources."

This important official International development comes on the heels of:

• The mid-term election results showing net neutrality did not garner any measurable political support;
• House Chairman Waxman's endorsement of short-term enforcement-only authority in proposed legislation;
• ~300 members of this Congress writing the FCC in opposition to Title II telephone regulation of the Internet; and
• No evidence of any actionable net neutrality problems to address in the sector.

Simply, all of the official developments and evidence that matter since the FCC proposed to regulate the Internet as a telephone network last spring, have been in opposition to it.

The PCCC's handling of its own 0-95 net neutrality record in the mid-term election is a political case study of what happens when one ignores The First Law of Holes: When in a hole, stop digging.

Even though the PCCC has no one else to blame for digging itself into a big hole by mass emailing their list of 95 candidates who pledged support for net neutrality to reporters and bloggers prior to the election, the PCCC appears intent on continuing to dig their political hole deeper.

What do the mid-term election results mean for the FCC?

First, FreePress' version of net neutrality was completely repudiated in the election.

• Every single one of the 95 House and Senate candidates that FreePress/PCCC got to publicly pledge support for net neutrality -- lost their election in the mid-terms. Yes, that is indeed a 0-for-95 record here.
• The FCC should take note that the main "political" driver behind trying to make net neutrality into a national grass roots issue, FreePress/PCCC/Moveon.org, could not get the issue to register on the election radar screen, and where ever they did attract a candidate endorsement of their position, they failed 100% the time in having that candidate get elected.

Second, most of the FCC's business is not political or partisan -- and it need not be. (The 1996 Telecom Act was almost unanimous. And the overwhelming majority of FCC decisions are 5-0.)

Every single one of the 95 FreePress/PCCC House and Senate candidates that took the www.NetNeutralityProtectors.com pledge: "I believe in protecting net neutrality -- the First Amendment of the Internet," lost in the mid-term elections Tuesday.

• So the best available national proxy vote gauging political support for FreePress/PCCC's vision of net neutrality lost unanimously 95-0.

As I blogged Friday in: "Tuesday's Net Neutrality's National Referendum" post FreePress/PCCC unwisely made net neutrality a measurable election issue by seeking public pledges from 95 House and Senate candidates before the election.

This means FreePress can no longer legitimately claim their net neutrality movement has significant grass roots political support.

This also means the FCC can see clearly that political support for net neutrality does not extend much beyond the email lists of the extreme left: FreePress, PCCC, and Moveon.org.

Simply, FreePress's long and loud claim that net neutrality was an important political issue to the American people has been exposed as completely untrue.

Radical supporters of net neutrality have chosen to try and make the mid-term election a national referendum on net neutrality.

• FreePress' close ally, The Progressive Change Campaign Committee (PCCC) has created a website NetNeutralityProtectors.com, which lists 95 House and Senate candidates that have taken their net neutrality pledge: "I believe in protecting net neutrality -- the First Amendment of the Internet..."

To make it easier to track the electoral performance of candidates who have take the PCCC/FreePress net neutrality pledge, here is a Net Neutrality Election Tally Sheet, listing the 95 candidates so that one can print out and record the outcomes on election night.

To put this preview in perspective, net neutrality supporters have been able to get:

• Only 10 candidates in the 37 U.S. Senate races to take their NN pledge -- all Democrats; and
• Only 85 candidates in 435 U.S. congressional races to take their NN pledge -- again all Democrats.

To get a handle how the PCCC/FreePress net neutrality supporters are projected to fare on election night Tuesday, the Tally Sheet includes the election predictions of the non-partisan independent Cook Political Report:

The FCC appears to have a glaring double standard when it comes to applying its "data-driven" policy analysis mantra of the last two years.

On one hand, the FCC seems interested in using its unique "data-driven" form of analysis to assert that the U.S. broadband market, (which based on market data is the most competitive facilities-based broadband market in the world), is not competitive and a market failure, so that the FCC can justify mandating new open Internet/net neutrality regulations and deeming the Internet to be a regulated telephone network.

• Moreover, the FCC also seems interested in using its unique "data-driven" analysis to assert that the U.S. wireless market, (which is among the most competitive in the world) is not competitive enough to promote enough innovation, so that the FCC can justify new types of FCC wireless innovation regulation.

On the other hand, in retransmission disputes between a cable broadband provider and content provider, the FCC appears to not want to do any "data-driven" analysis at all, because that might show obvious regulatory failure and not the market failure the FCC seems interested in finding most wherever they look in the communications sector.

Google's proposed purchase of ITA Software is likely to be blocked by the DOJ for five big reasons.

First, the announcement of a new FairSearch.org coalition of Google's Travel competitors opposed to the Google-ITA deal, which was first reported by Tom Catan of the WSJ, provides the DOJ with most all the elements necessary for the DOJ to block the deal: broad and deep evidence of anticompetitive effects from multiple competitors with deep understanding of the market, a sound theory of the case, and a number of credible witnesses willing to take the stand in court to block the deal.

Second, a key opposition counsel who represents IAC's Expedia, is none other that Tom Barnett, who was the DOJ Antitrust Chief in 2008, who blocked a previous Google attempt to monopolize in the Google-Yahoo Ad Agreement.

The FreePress-led movement calling for net neutrality is floundering badly, like a fish out of water.

• If FreePress' net neutrality/Title II agenda was as politically popular and powerful a political movement as FreePress has long represented it to be, we would be seeing evidence of that in this most political of seasons, a week before the mid-term elections.

The reason we now see near zero political support for FreePress' net neutrality/Title II radical agenda, is that FreePress' supposed "popular support" never existed at all; it was just a clever FreePress PR facade of "support" propped up by friends in the media and the blogosphere.

To understand the hubris of FreePress' chicanery, they never had material political support from even their most likely supporters.

Much has changed since May when FreePress orchestrated a torrent of nasty criticism directed at the FCC Chairman when it was signaled to the Washington Post that he was considering leaving broadband de-regulated and not adopting a Title II broadband approach.

Since then, Google negotiated a proposed compromise with Verizon to resolve the net neutrality Gordian knot that importantly did not advocate Title II regulation of the broadband Internet.

• More importantly, Google did not back down from their proposed compromise when FreePress subjected Google to the "the FreePress treatment" i.e. public relations mob torture -- for their apostasy.

Since then, House Commerce Committee Chairman Henry Waxman also negotiated a proposed solution to the net neutrality Gordian knot that did not advocate Title II regulation of the broadband Internet.

FreePress continues to urge the FCC to ignore everything, but Title II chauvinism.

• "If Genachowski reestablishes (the FCC's) authority and moves on net neutrality, he will be viewed as a heroic FCC Chairman. If he doesn't, he will be viewed as one of the agency's greatest failures."
• In other words, the FCC is either totally with FreePress or totally against FreePress.
• There's no negotiation, collaboration, bipartisanship, comity, reason, or compromise in FreePress' radical playbook, only total victory or slash and burn devastation.

The list of what FreePress expects the FCC to ignore is growing to tragicomic proportions.

FreePress urges the FCC to: