One of the comments my able debate opponent, Gigi Sohn, President of Public Knowledge, made last Friday stuck with me over the weekend as very much an "ostrich-head-in-the-sand" point of view.

After I pointed out that prices were falling, consumer choice and speed were increasing, broadband investment and deployment are healthy, and that there was an explosion of innovation and new products... Gigi replied that ~98% of people access the Internet through their phone or cable company. (she ignored my comment that 8 sort years ago we had a monopoly) Then she sarcastically dismissed the possibility that wireless or other technologies could ever compete with phone or cable -- or that it would be a long time coming.

I debated Gigi Sohn of Public Knowlege today on net neutrality at the annual PLI conference here in Washington.

Here is the essence of my opening remarks -- a concise case against net neutrality.

Three main points:

1. Net neutrality is a bogus issue.
2. Net neutrality would set America back.
3. The burden of proof is on those who want to change the law and change the Internet. 

1. Net neutrality is a bogus issue -- there is no problem to solve.

• There is no consumer harm. Prices are falling. Choice and speeds are increasing. Broadband investment and deployment is healthy. There is an explosion of new products and innovation.
• Net neutrality is based on hypothetical and unsubstantiated allegations. There is only one documented example of blocking -- Madison River which the FCC dealt with swiftly. Net neutrality would punish over 2000 broadband companies for the sin of one.
• Existing laws are more than sufficient to address any potential net neutrality problem. FCC, FTC and DOJ all have existing authority and have stated they are vigilantly watching for any potential problems. The FTC Chairman said there have been no complaints and that no one has been able to explain the problem.

2. Net neutrality would set America back.

Google did a good job of "spinning" the good aspects of its new plan to create a private market for valuing Google employee's stock options. This blog intends to shed some light on whether it is such a good idea. I think not. The New York times coverage was the most comprehensive of the six papers I read on the topic.

I am writing about this because as a former leading independent investment researcher, I understand conflicts of interest and capital markets intimately. As the first congressional witness explaining what went wrong with Enron, and the first to see through the spin with WorldCom, I can tell you there is a whole lot for Google shareholders and investors to be worried about in Google's latest example of "innovating without permission." It is especially troublesome when people chime in with the inane insight "if Google does it, it validates it as a smart idea." Hold onto your wallets when that kind of idiocy gets quoted and unchallenged.

During the bubble, stock price routinely was correlated to "smarts" and we all know how that ended. I acutely remember being Bernie Ebbers whipping boy and being derided by him as the "idiot washington analyst" for having the audacity to challenge the WorldCom story at its apex when it was owned by more funds than any other telecom stock. When WorldCom was worth $150b, like Google is now, there were tons of people fawning over Ebbers and others who simply rode momentum of the bubble up. They weren't geniuses becuase their stock prices were high, people just assumed that stock market success equated to brilliance.

Ugh. Internet regulation creep continues. The Federal Trade Commission (FTC) said yesterday that companies that engage in word-of-mouth product endorsements must disclose if recommenders are being paid to recommend the product or service. The Washington Post had a good story on it today.

Since this is all about forthright disclosure, let me reiterate that I openly and regularly disclose that I represent broadband interests in the net neutrality debate. And as a strong believer in law enforcement, I have no sympathy for those engaging in deceptive or fraudulent business practices.  That said, I also dread Internet regulation creep, because it will ultimately slow economic growth, job creation and innovation. 

Its been interesting to see my 11-28 open letter to Bill Gates and Steve Ballmer bounce around the Internet and also become part of the Wall Street chatter.

The feedback has been that it was a well written and thought provoking letter/analysis that got people and investors to think of the net neutrality issue and fight in a much broader, holistic and linked way.

• Most investors had been looking at the issue in isolation or through a silo view.
• Few investors had yet connected the dots in the open letter; that Microsoft is becoming more of a communcations company every day with all its regulatory risks.
• Now there is a much better appreciation in both the investment and antitrust communities for what Microsoft's net neutrality position could mean for the company's web services plans and model going forward.

The letter was also an eye opener to investors that Microsoft is not really controlling its own destiny in Washington, but following Google's leadership. Google certainly appreciates the irony of an eight year old company taking the "adult" company to school in Washington.

Given that Google presents the biggest real threat to Microsoft's web services plan in both the marketplace and in Washington, I find it interesting that Microsoft has allowed itself to be so outsmarted and outflanked by Google in Washington.  Is Redmond going soft or just distracted?

The reality is that net neutrality didn't become an issue and have any traction until pro net neutrality forces attached the issue to a moving legislative vehicle last year -- the video franchise reform bill.

• Essentially the online giants and Save the Internet were able to play "big" with few resources. To their credit, they were able to create a lot of attention and a whole lot of obstruction to the process. They won the battle of stopping the bill, but lost the war of legislating net neturality.  

Well now the shoe is on the other foot. Net neutrality proponents now need to build momentum for a bill from scratch, because the companies that pushed it last time are not going to push it this time. They will be able to play defense, which as the net neturality proponents learned this past year, is a lot easier than legislating.

• On Wednesday, it was very significant that at the Big Wall Street UBS conference hosted by John Hodulik, that all the Bell CFOs reset Wall Street expectations that they did not need any legislation of major things done in Washington this year.  They also explained that since both the telecom and cable companies were united in opposition to net neutrality -- the isssue was going nowhere next Congress.

Next year we will see if there is a real there there surrounding net neutrality. Net neutrality proponents will learn for themselves how easy it is to play defense rather than offense in Washington.

It will be interesting to see if net neturality proponents can turn both their ragtag coalition and their ratbag of unsubstantiated allegations into policy consensus and a successful legislative vehicle. It will prove hard. Real hard.

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Google's attempt to amend the pending franchise bill in Michigan with Net Neutrality looks like it will not succeed. The bill had already passed the House and the Senate Commitee unanimously approved the bill yesterday without Google's last minute net neutrality amendment. Google will probably try to amend it on the Senate floor, but given that it is not in the House or Senate Committee versions, their chance of success of winning an amendment is slim.

They could try and block passage and run out the clock, but I don't think Google is stupid enough to be a spoiler and stop 2000 more jobs for the job-strapped Michigan economy.

Very interesting! Yahoo in an ex parte report by James Hedlund, Director of Yahoo! Communications Policy, after its meeting with the advisors of FCC Chairman Martin and the other commissioners, distanced Yahoo from the more radical stance of Google and Moveon.org's Save the Internet. 

The operative part is:

• "I reiterated our support for meaningful and enforceable net neutrality protections. To be effective, however, they must apply to all broadband Interent Access Providers, not just AT&T. For this reason, Yahoo! does not seek additional Net Neutrality conditions in this proceeding beyond the committments AT&T has already made. {bold empahisis added} Yahoo! continues to support adoption of generally applicable Net Neutrality protections in order to preserve innovation, competition, and openess on the Internet." 

Yahoo! Yahoo appears to be aware that principles are principle and that mugging a merger and extorting special conditions is a bad way to make public policy. A tip of the hat to Yahoo is deserved. Consider it tipped.

I continue to be amused at Google's "do as I say, not do as I do" way of doing business. As the online champion of regulating any "non-neutral" behavior by others, it is instructive to keep a close eye on the "non-neutral" things Google does in the market.

USA Today had a great article today, "Google offer takes on Paypal." Google is using its market leading dominance of the search market, 45% share and growing per Source Media Matrix, to leverage itself into other markets like online transactions, in very non-neutral ways. Some interesting quotes from the USA Today article:

• "Google has the potential to own this market...Paypal is essentially laying down and letting Google buy market share."
• "In a retail sense, Google is using Checkout as a loss leader to get market share works for Google, becuase they will make it up more with advertising, which is highly profitable."

So what is the point? Google routinely uses its market leverage (or is it market power?) in the online ad market it dominates "to buy share" or compete in a way that another company can't. This would be perfectly kosher, if, Google was not also the champion for making this type of typical Google market behavior illegal for broadband carriers, most of whom have dramatically less broadband share than Google has in its dominant market of search.

Today Microsoft launched a new program for telecom operators, carriers, software vendors and developers called "Connected Services Sandbox."   According to Microsoft "the sandbox will encourage the creation of "managed network mash-ups" in which Microsoft's Web services are combined with telecom services so Microsoft can fulfill its ambition of offering its software as a service model over the Internet.

• (Translation: Microsoft wants competitors to "play in their sandbox" so Microsoft and their preffered partners can watch them and get discriminatory preference in commercially exploiting others' resulting innovations.)

Has anyone at Microsoft thought this through? As I explained in my recent open letter to Bill Gates and Steve Ballmer, Microsoft's hamhandedness in Washington has already resulted in Microsoft being subject to the FCC's net neutrality principles and regulatory jurisdiction. This new endeavor is just another example in a long litany of Micosoft Internet businesses that are not neutral and discriminate for commercial gain.

How is their sandbox neutral? Let me quote directly from Microsoft's own press release which is pretty incriminating: "BT will have early exposure, visibility and access to the winning services including the ability to test and deploy the prototype services."