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FCC is Losing the Wireless Future

It will be surprising if the Republican FCC Commissioners and a bipartisan majority of Congress do not oppose the FCC's unwarranted war on wireless competition policy.


  • The FCC appears to be itching to start another political battle over competition policy with its upcoming fifteenth wireless competition report to Congress, by making another political decision devoid of supporting evidence or merit, that the wireless market does not have "effective competition."
    • Such a fantastical political finding, helps the FCC to ignore Congress and the law yet again, and also to unilaterally impose new sweeping economic regulations on wireless, including net neutrality.


The linchpin of the FCC's de-competition policy to restore the FCC to its pre-1996 monopoly regulation glory days, and to put the FCC in more control of the communications sector going forward, is to politically define away the existence of "effective competition," in order to justify FCC regulation of the mobile Internet.


Why Verizon Wins Appeal of FCC's Net Regs

Top Ten: 

Verizon is highly likely to win its appeal of the FCC's December Open Internet order, because the FCC's order is likely to deeply and broadly offend the legal sensibilities of the Appeals Court, just like the FCC offended the DC Appeals Court's sensibilities when it punished Comcast for violating a regulation that did not exist.


  • The Court responded to that FCC injustice last April by ruling in its Comcast vs. the FCC decision that the FCC had no authority to regulate broadband or the Internet.


To understand the most likely outcome here, it is critical to cut through the FCC's claims, assertions, and arguments, and focus on the big picture context of what the FCC is actually doing in this Open Internet Order, i.e. what is the effect of the FCC's decision and process on the rule of law. That is what matters most to the Court.

House Net Neutrality Legislation Takeaways

House Democrats have proposed a resolution to Net Neutrality that strongly signals to the FCC majority to not pursue its considered Title II reclassification of broadband as a 1934 regulated telephone service. The House Democrats' draft is here. The implications of this House draft are broad, important and constructive.

First, this House Democrat draft signals to the FCC Democrat majority loud and clear that House Democrats do not support the radical FreePress-driven proposal to regulate broadband Internet networks as 1934 common carrier telephone networks.

Second, it proves that the FreePress-driven proposal to takeover the Internet and regulate it as a public utility is extreme, way out of the political mainstream, and a non-starter.

Third, this legislation proposes a sensible resolution and workable alternative to this destructive polarizing issue that is serving no one who seeks an open Internet that works, grows and innovates without anti-competitive concerns, but only the revolutionary interests of FreePress and its allies that claim they want net neutrality, but really seek a utopian "information commons revolution."

NetCompetition Statement on FCC's Broadband Legal Framework NOI


June, 17 2010

Contact:  Scott Cleland




“FCC Regulating the Internet like a Phone Company Would Enthrone “Ma Google”

“FCC’s Broadband De-competition Policy Would Accelerate Google-opolization of the Net” Press Release on FCC wireless report which advances FCC de-competition policy


May 20, 2010                                                                                         

Contact:  Scott Cleland



Scott Cleland, Chairman, on FCC Wireless Report:

  • “FCC advances its new de-competition policy in its new wireless assessment”

Why FCC's broadband public option is a lose-lose gamble

The FCC would be making a long-shot bet-the-farm gamble, if it decided to mandate the broadband public option i.e. deeming broadband to be a common-carrier-regulated service and regulating the Internet essentially for the first time. 

  • It would be a classic lose lose gamble because:
    • The FCC is very likely to lose in court -- accomplishing nothing, but damaging the hard-built trust, cooperation, and commitment necessary for public-private partnerships to be able to get broadband to all Americans fastest; and
    • Everyone else would lose from the irreparable damage to private broadband investment, innovation, growth, jobs, and America's broadband ranking in the world. 

I.   Lose in Court:

It is a given that the FCC would be sued; and it is very likely that the Appeals Court and/or the Supreme Court would overturn any FCC unilateral assertion of authority to deem broadband a common carrier service.

FCC deeming broadband to be regulated opens a Pandora's Box

Proponents of the FCC asserting new "deeming authority," to "deem" broadband to be a regulated phone service and thus subject to the FCC's existing Title II telephone authority, have not even begun to answer the most fundamental questions of what such a foundational change would mean.

  • Premature characterizations that this nouvelle regulatory "deeming" would somehow be easy, clean, or containable, simply have not thought through the potential chaos, havoc, and uncertainty that such a radical, foundational, and over-reaching regulatory "deeming" would wreak on:
    • Legal/policy precedent, clarity, and stability;
    • Business investment, and innovation -- assumptions, incentives, models and practices;
    • Economic growth, private investment and job creation;
    • Industry financial stability, contracts, and debt covenants; and
    • Trust, cooperation, and respect the FCC needs to fulfill its mission and its National Broadband Plan.
  • Consider the following to be a preliminary, non-exhaustive list of important questions the FCC and others will have to confront, answer and address, before the FCC seriously considers "opening" this potential Pandora's Box of ills.  


FCC Reclassification is Eminent Domain, but with No Just Compensation or Authority

At core the FCC's contemplation of reclassifying, or effectively treating, unregulated broadband info services as regulated telecom services, would be tantamount to the FCC declaring "eminent domain" over private broadband providers, i.e. justifying a government takings of private property for public uses, but doing so "without just compensation" or any statutory authority. 

  • The U.S. Constitution's Fifth Amendment requires: "nor shall private property be taken for public use, without just compensation."

A gaping missing element in all the FCC's discussions of all the new "public uses" it envisions for broadband in its pending National Broadband Plan and its proposed preemptive Open Internet regulations is any consideration at all of the potential hundreds of billions of dollars of un-budgeted liability to the U.S. Treasury that could result from the takings of private network property without just compensation -- at a time of skyrocketing trillion dollar Federal budget deficits and rapidly mounting public debt.   

Anti-competition FreePress mocks antitrust, feigning support of video competition

FreePress, which philosophically opposes competition policy, effectively is mocking antitrust law and authorities by cynically feigning to care about antitrust and competition in calling for an antitrust investigation of "TV Everywhere" efforts to enable authenticated paying video customers the additional convenience of accessing their paid-for content on any device at no extra cost. 

  • FreePress is misrepresenting its latest report -- "TV Competition Nowhere" -- as antitrust analysis when it is standard FreePress villain-ization of broadband and media businesses.   

In their own words, FreePress is anti-competition, anti-property, and anti-business. 

Open Un-Neutrality – Will FCC Re-Distribute Internet Opportunity? For Consumers? Businesses? Investors?

In effectively reversing fifteen-year bipartisan U.S. communications policy from promoting competition and reducing regulation to promoting regulation and reducing competition, the FCC’s coming “Open Internet” regulations are anything but neutral; they pick sides and strongly skew outcomes.

  • First, the FCC is proposing new preemptive business bans mid-game, the harshest most disruptive form of economic regulation possible.
  • Second, the FCC is arbitrarily discriminating among increasingly similar and converging businesses resulting in the arbitrary punishment of some businesses for what they allegedly might do, while rewarding others with protection from competition for what they allegedly might not do.
  • Third, the FCC is arbitrarily mandating one-way technology convergence without any supportable justification, i.e. banning distribution convergence into applications/content, while encouraging application/content convergence into distribution.



Q&A One Pager Debunking Net Neutrality Myths