Qwest

FreePress with its "all complaints all the time" approach to advocacy has been caught once again "crying wolf" when there was no real problem or threat.

A new FCC study that shows ISPs are effectively delivering on the broadband speeds they advertise, exposes FreePress for crying wolf -- yet again.

• FreePress has to acknowledge Verizon's FIOs far exceeds advertised speeds, Comcast and Charter exceed advertised speeds, and other ISPs are more than close enough to advertised speeds to show that there is not a problem here for the FCC to be concerned about.

FreePress also continues to cry wolf about its spurious tethering" complaint against Verizon because users are prevented from unauthorized tethering of additional devices trying to bypass users' terms of service agreement.

The FCC's Open Internet Order is even more likely to be overturned in court than before because the FCC's extraordinary delay in publishing its December net neutrality regulations has oddly moved the FCC's April Data Roaming Order to the front of the line of cases challenging the FCC's overall legal authority to regulate broadband.

• (The April 7 Data Roaming Order was published in the Federal Register 29 days after the decision; the December 21 Open Internet Order may not be published until late summer or fall, 7-9 months after the decision, per Politico's Morning Tech.)

Consequently both cases are now more likely to be heard in the FCC-unfriendly D.C. Circuit Court of Appeals.

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 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."

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.

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.  

In one of the best, most strongly-worded and serious letters to the FCC that I have read in my 18 years following FCC issues closely, the united broadband industry's letter to FCC Chairman Genachowski is simply a must-read; it explains why the FCC's serious interest in reclassifying unregulated broadband information services as regulated telecom services is among the worst and most destructive ideas the FCC has ever seriously considered.

The letter characterized Title II reclassification as:

• "a radical new direction,"
• "regulating the Internet,"
• "a profound mistake,"
• "betraying decades of bipartisan support for keeping the Internet unregulated,"
• "misguided regulatory overreach," and a
• "Pandora's Box."

A particularly strong summary statement was:

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. 

What an "Open Internet" does not mean is as important as what it does mean.

• Surely an "Open Internet" is not intended to mean what it certainly can mean: un-protected, unguarded, or vulnerable to attack. 


• Thus, it is essential for the FCC to be explicit in defining what the terms -- "Open Internet," "net neutrality," and Internet non-discrimination -- don't mean, as well as what they do mean.

The word "open" has 88 different definitions per Dictionary.com and the word "open" has even more different connotations depending on the context. While the term "open" generally has a positive connotation to mean un-restricted, accessible and available, it can also have a negative or problematic connotation if it means unprotected, unguarded or vulnerable to attack.