I know that this space is usually reserved for the discussion and debate of things digital, or at least matters somehow remotely connected to things digital. But once and a while there necessarily are exceptions to the usual fare--like when the Blue Devils take the floor during the Big Dance.

Today is one of those exceptions. For me, it would be incongruous to hang my hat each day at an organization with both "progress" and "freedom" in its name without pausing to acknowledge the enormous contribution to American society of Rosa Parks to both. Sure, sooner or later, someone else would have refused to give up his or her seat on the bus--and perhaps some person or persons unknown to history did so before Ms. Parks.

But she did it at a time and place that demanded much courage and conviction. By engaging in an act of civil disobedience, Rosa Parks accelerated progress and secured freedom--and showed how individuals of conscience can make a difference. May she rest in peace.

Nowhere is the spirit of volunteerism more evident than when mergers are pending at the FCC. In the FCC's press release today, it pointed out that the order adopts as enforceable conditions "certain voluntary commitments" made by the merger applicants. In a letter submitted to the FCC only hours before the agency acted, SBC said that it "steadfastly" believed no further conditions (other than those imposed by the DOJ) were warranted. It went on to say, however: "Nevertheless, in the interest of facilitating the speediest possible approval of the merger by the Commission, and in response to a request from the staff, Applicants would agree to the following additional merger conditions." And this too: "Applicants reserve the right to withdraw these voluntary commitments upon two days' written notice to the Commission if the Commission has not approved the merger at that time." I don't have it, but I'm sure Verizon made a similar "voluntary" submission.

What a curious strain of volunteerism is this, and volunteerism on such a short leash too!

We might have a good debate about the merits of the rules that the Commission (or its staff!) has crafted and whether they would make sense if adopted in a rulemaking proceeding. But it seems to me not very debatable that the use of the merger process to fashion company-specific conditions not closely related to competitive concerns raised by the merger is unwise and unseemly. I said as much in "Any Volunteers" over five years ago. And Commissioner Abernathy, to her credit, said as much today in her statement on the mergers.

Voluntary conditions? Sometimes you wonder who will do most to destroy the ordinary meaning of the English language--the FCC or those it regulates.

The fact that the FCC approved the mergers today at all is a signal regulatory/political achievment. That the Chairman had to buy these approvals at a non-trivial price with non-germane regulations is unfortunate. That the FCC again is exacting "voluntary" concessions shows that the art of the regulatory stick-up is alive and well. If this agency continues superimposing its industrial policy whims on the communications sector, America's competitive broadband future will continue to be a bumpy one.

As for the conditions:

Randy put it much more nicely and fully, but what in the world does "naked DSL" have to do with the competitive effects of the VZ-MCI and AT&T-SBC mergers?

The answer, of course, is nothing. If there were any competition policy harms to be redressed here, it was in the in-region, enterprise markets where MCI and AT&T have overlapping facilities with their respective merger partners.

But naked DSL as a retail requirement? It is simply the irrelevant intuition about possible harm from bundling. Furthermore, as the companies' promise to the FCC that it can monitor the rates of the naked versus clothed DSL product shows, rate regulation and its attendant distortions are never too far away.

Speaking of which, what does net neutrality have anything to do with the mergers? Again, nothing. The combination of AT&T into SBC and MIC into Verizon does nothing to increase the risk of consumer-harmful blocking of Internet connectivity. The FCC imposes the condition because it can, and then only for a term that has no basis in law or policy -- but only as the outcome of negotiation.

Finally, for all the talk about harm from regulatory asymmetry, these merger approvals sure do create a bunch of them. I don't think I would want to be negotiation the Adelphia mergers right now.

No wonder the DC Circuit overturns the FCC so often for its policy promiscuity. Lucky for the Commission, all these conditions are voluntary and thus not appealable.

Reportedly, the two Democratic FCC commissioners want to put the kibosh on the SBC/AT&T and Verizon/MCI mergers until the parties "voluntarily" agree to offer "naked DSL"--at which time the FCC would embody the "voluntary" commitment in an order approving the merger. This is an good example of what is wrong with the FCC's merger review process.

In a May 30 piece in the National Law Journal, I wrote about how the merger process "has been characterized by a whiff of regulatory extortion resulting from the imposition of merger conditions unrelated to compliance with existing statutory requirements or rules." I was just being polite when I said "whiff"!

Level 3 and Cogent have worked it out. Neither the service disruption and nor the use of your own customers as hostages evidence a mature industry that has worked out the contracting methods and terms that would avoid these two unendurable outcomes. Nevertheless, the parties did reach a private accommodation, without the intervention of a regulator. Furthermore, the continual rentseeking and manipulation that regulated interconnection was avoided.

I would expect that you don't need but one Level 3-Cogent service disruption for it to never happen again. The business and reputational effects on both parties were horrendous. Such derision usually makes coming to an agreement much easier.

The W$J's article today on the demands local governments have made before allowing Verizon into the local video market lay bare the fact that franchising isn't about management of rights-of-way, or recompense for use of public property, but about taxation and in-kind goodies that localitiies can coax from would-be entrants.

The Journal sets out the buffet of demands localities are making:

Kyle has shared with the DACA blog his thoughts and reactions to yesterday's public debut of the second version of our Digital Age Communications Act (DACA) Federal-State Working Group paper. The group, chaired by Kyle and U. of Colo.-Boulder's Phil Weiser, solicited a lot of feedback on Release 1.0, including venturing into a NARUC conference. Kyle heard more feeback yesterday.

As Ray noted in his essay last week on Clearwire and VoIP blocking, I have long argued that broadband service providers (BSPs) will eventually will end up price differentiating based on bandwidth usage, in part because of the futility of differentiating based on service bundling or technological applications / usage.

What I mean by this is that most attempts to discriminate against specific websites or applications are likely doomed to fail or end miserably for the carriers. First, with Net surfers getting more sophisticated with each passing day, it will be very difficult to block most activities without them finding ways around the restrictions. Second, attempting to discriminate against certain types of bits is complicated for the carriers and will likely require more effort than it's worth. Third, even if carriers were able to discriminate against certain bits, if they went overboard it would spark an intense consumer backlash and a likely exodus to an alternative broadband provider. (And if a serious alternative backbone provider was not yet available in that region, excessive blocking / meddling by the incumbent BSP would likely serve as the best incentive for new entrants to enter the market and offer a less-restricted surfing experience.)

But critics claim that I'm full of it and some of them pointed to last week's front-page story in the Wall Street Journal as evidence. In their article, "Phone, Cable Firms Rein in Consumers' Internet Use," reporters Peter Grant and Jesse Drucker claim that, "Several large telephone and cable companies are starting to make it harder for consumers to use the Internet for phone calls or swapping video files." The story goes on to note that some BSPs "have begun to closely monitor the uses of their network with an eye toward controlling activity by users who are swapping movies, TV programs, pornography and other video files. Operators say file sharing is growing so quickly, it threatens to sharply slow down other uses."

What are we to make of this? Are BSPs hell-bent on controlling our web-surfing experiences and even resorting to "discrimination" against certain types of uses or activities? Should that be illegal? Are there other ways of handling this problem?

CA PUC Commissioner Susan Kennedy, who we have praised and other times mildly, ever-so-mildly criticized, has a clarifying speech on VoIP. It is a wonderful synopsis of the challenges that VoIP presents to the regulatory system.

Most interesting is the commissioner's view of proposed 'net neutrality' regulation:

I have come to believe that we have to approach the issue of Net neutrality like we do the right to free speech or privacy. What constitutes speech or privacy is not necessarily defined in statute – these are principles that are enforced on a case by case basis and codified in a dynamic and robust body of case law.

I believe the FCC should address this issue on a case by case basis until a problem materializes that consumers cannot fix on their own through the power of choice in a free market.

On the other hand, where customer choices are being limited by blatantly anti-competitive actions, regulators should be fearless about stepping in.

Quite so.

The market research firm In-Stat reports that 9.4 percent of the nation's 193 million wireless subscribers have already made their mobile phone their primary phone and the firm expects that percentage to grow to 23 to 37 percent by 2009.

Hopefully our wireline-obsessed policymakers in Washington will read this report and realize that their seemingly endless efforts to regulate wireline networks will only seek to further disadvantage those networks relative to the new wireless and Internet-based competitiors. Of course, it is more likely that lawmakers and regulators will simply respond to this news by finding new ways to regulate new wireless technologies and competitors.