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A recent study by the Leichtman Group found 70% of American broadband subscribers are very satisfied with their service, and relatively few are actually seeking faster Internet access.

• This suggests the drumbeat for a national broadband industrial policy, because America's Internet is too slow and falling behind the rest of the world, is just empty rhetoric and wishful assertions by Big Government types.
• As I have blogged before, the facts are not the friends of those screaming for de facto nationalizing the Internet.  

Bottom line:  The more one learns about the facts about what benefits American broadband consumers actually enjoy, and what they demand in the future, it is not what the Big Government folks claim.  

The FCC is reportedly considering putting "the burden on the network operator to prove that its network practices are reasonable" in its net neutrality proceeding on Comcast's network management, according to today's top story in Washington Internet Daily.

• Assuming that this report is accurate, and assuming that an FCC majority would approve such a shift of the burden of proof, let me explain why such an FCC ruling would be a profound assault on the freedoms that Americans hold most dear.   

It would be supreme irony, if in the supposed name of "Internet Freedom," the FCC somehow ruled that network operators had no freedom to manage their private property, enter into contracts or pursue business without prior permission from the FCC.

• Freedom from Government is central to the U.S. Declaration of Independence which declares "certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." 
• The Fifth Amendment of the U.S. Constitution guarantees the presumption of innocence: No person shall "be deprived of life, liberty, or property, without due process of law."   

Why would it be bad to put "the burden on the network operator to prove that its network practices are reasonable"?

New facts from independent sources continue to undermine the political charge that the U.S. is falling behind in broadband, the thinly-veiled charge that Big Government proponents use to justify the need for a national broadband industrial policy to replace the current free-market national Internet policy.

• A new report by Nielsen, the independent market research firm: "Critical Mass: The worldwide state of the mobile web"
  • Ranks the U.S. #1 out of the 16 countries they measure in mobile Internet usage penetration -- ahead of the UK, Germany, France and Italy and others. 
  • The report also concludes that penetration of 3G-broadband-capable handsets is greater in the U.S. than in the EU (28% vs 25% of consumers respectively.)

Why are these new independent findings important?

First, broadband mobility is as important to Americans as stationary broadband speed.

I wrote the anti-net neutrality argument and Professor Lowell Feldman wrote the pro-net neutrality argument for the ABI Telecom Technology Committee newsletter this month for the American Bankruptcy Institute:

Both articles are copied below, mine followed by Professor Feldman's:

Why Net Neutrality is Unnecessary and Bad Policy

Written by:

Scott Cleland

Chairman, NetCompetition.org -- a net neutrality forum funded by broadband companies Washington D.C.

The 2008 World Competitiveness Yearbook just came out and the U.S. is ranked #1 in world competitiveness again -- for the fourteenth year in a row.

• This ranking by the Swiss IMD is the third major, world-respected, independent ranking that concluded the U.S. is not falling behind the rest of the world in competitiveness.
• These three different independent assessments are in stark contrast to broadband critics' call for abandonment of free-market competition policies in favor of a more regulatory broadband industrial policy. 
  • In November 2007, the U.S. ranked #1 in the World Economic Forum's Global competitiveness Report for 2007-2008.
  • Last year, the Economist Intelligence Unit's latest Global Digital Rankings had the U.S. tied for second in the world.

Bottom line: Pro net neutrality and pro-regulation proponents love to jump on isolated data or studies like the OECD broadband rankings to justify a reversal of free-market competition policies in favor of more command and control government industrial policies.

However, facts are pesky things.

I have to admit that I was surprised by all the back-pedaling and calculated retreat by net neutrality proponents at the House Internet Subcommittee hearing on Chairman Markey's net neutrality bill HR5353.

Net neutrality proponents were clearly on the defensive, proactively responding to criticisms of the bill and not spending much time touting its benefits.

Kudos to Timothy Lee of Cato, for his post in Techdirt: "Changing the Internet's architecture isn't so easy." 

Mr. Lee challenged Professor Lessig's assertion at the Stanford FCC hearing that network owners have the power to change the Internet's architecture.

Why his insightful analysis is so devastating to Professor Lessig's core assertion underlying the need for net neutrality legislation is that it exposes some "inconvenient truths" about the reality of trying to change the Internet's architecture:

• First, Mr. Lee brilliantly points out that to control which devices got what content like Professor Lessig posits, would require instituting some type of handshake protocol that would be extremely difficult to get adopted by device manufacturers.
• Second, he points out how difficult it has been to change the Internet's architecture to IPv6, something there is a lot of consensus around to do.
• Third, he explains that these changes in architecture Lessig posits would be extremely expensive and take a long time.

I recommend you read his full post, it's brief, well-reasoned and fresh.  

The big surprise of the hearing was that Chairman Martin was a last minute witness. The Committee created a new first panel for just Chairman Martin, which ended up consuming about 60% of the allotted time for the whole hearing, and which was also the prime time when most of the Senators and press were in attendance. This surprise testimony practically relegated the other panel, which was expected to be the main event, to more of sideshow status.

Overall, this hearing was slightly more balanced than its House counterparts. Chairman Innouye continued his very measured and balanced approach, in that he said things that each side wanted to hear.

• Given that the Senate Commerce Committee is historically quite bipartisan, and that this committee remains split largely down the middle, I doubt if we will see much real movement on Dorgan-Snowe's net neutrality bill this session.
• If Chairman Inouye actually thought net neutrality legislation should make progress, he wouldn't have waited fifteen months since the introduction of the Dorgan-Snowe bill to hold the first hearing on it.
• It appears the real purpose of this hearing was basically to let off steam and throw the net neutrality activists a bone. 

The real import of the hearing was two-fold: 

Be sure to read Dick Armey's succinct analysis and perspective on net neutrality in his op ed: "Spare the Net."

• I am a big fan of Former House Majority Leader Dick Armey -- he is one of the true free-marketeer giants of our era.

Below is the full text of the letter I sent to all members of the Senate Commerce Committee and the Senate leadership questioning why of all times -- now -- for pushing net neutrality?

• Tuesday is the Senate Commerce Committee hearing on net neutrality entitled: "The Future of the Internet."  
• The attachment to the letter was my one-pager: "Why net neutrality is not a mainstream issue."  
• The link to the PDF of the letter with attachment is here.

April 22, 2008

The Honorable Daniel K. Inouye

722 Hart Senate Office Building

Washington, DC 20510-1102

ATTN: Telecom Legislative Assistant

Dear Chairman Inouye: