Praise the Lord and pass the ammunition.

So goes the FCC's stacked "706 Report" on broadband this week, which said that Americans aren't getting broadband in a "reasonable and timely basis," the first negative conclusion since the report's inception.

Using the standard developed in the National Broadband Plan (NBP) - which recommends "that every household in America have access to affordable broadband service offering actual download (i.e., to the customer) speeds of at least 4 Mbps and actual upload (i.e., from the customer) speeds of at least 1 Mbps" - the Commission determined that by this benchmark "broadband remains unavailable to approximately 14 to 24 million Americans." (Not that 14 - 24 million Americans don't have high-speed access, as has erroneously been reported.)

The FCC is building its war chest so that it can justify Lilliputian Internet regulation of network providers. Through a number of recent proceedings, statements and reports - e.g., the Open Internet NPRM, Cellular Competition Report, and "Third Way" NOI - the 706 Report traffics in the same meme: network providers just aren't doing their job, so they must be coerced or shamed into proper "compliance."

Not uncharacteristically, The Free Press heralded the new, rather dour (and now redundant) broadband assessment. Said the lugubrious, special interest lobbyists - "Now that the FCC has taken the first step of acknowledging America's broadband problem, we hope that it will advance policies to reverse this decline though the promotion of real competition and true consumer choice."

Julius Genachowski claims his "Third Way" approach to taking over the Internet looks a lot like the benign "wireless model" of regulation.

If it were true, that would be a good thing.

According to Genachowski:

In its approach to wireless communications, Congress mandated that the FCC subject wireless communications to the same Title II provisions generally applicable to telecommunications services while also directing that the FCC consider forbearing from the application of many of these provisions to the wireless marketplace. The Commission did significantly forbear, and the telecommunications industry has repeatedly and resoundingly lauded this approach as well-suited to an emerging technology and welcoming to investment and innovation. In short, the proposed approach is already tried and true.

Presumably, the "wireless model," if applied to the Internet, would spur growth and innovation. But I have a question. In the FCC's NOI, how does the wireless model of "light regulation" apply to, er, the wireless model?

I haven't quite figured out the circularity of that one yet.

Oh, well. Maybe I shouldn't waste my time trying. It seems more apparent than ever that for wireless and wireline broadband service it's not really about regulating "downward" - i.e., deregulating, as is the hallmark of the "wireless model" - but instead, regulating "upward," thus adding regulation.

Tomorrow at the FCC's open meeting, it is expected that the Commission will release an NOI that will seek to implement Chairman Genachowski's controversial "Third Way." Ostensibly, his plan will try to chart a reasonable balance to promote an open Internet, while at the same time keeping it free from regulation. To arrive there, the Commission will likely propose to shear away the underlying transmission component of broadband telecommunications services from ISP / information services, and impose only a "handful" (like a dash of salt, I guess) of common carrier regulations on the former to keep the Internet open for applications, services, content and devices (as if it is not now already).

We do not know what's in the NOI, nor the process toward a rule or ruling. That said, it probably doesn't matter. Call me skeptical, but you don't need to be a mind reader or have a well connected lobbyist to understand that the fix is in. Not letting the facts get in the way of the situation, the Internet, through this NOI, is going to be regulated.

The Deal's Chris Nolter believes AT&T's new wireless data-plan pricing - i.e., billing for tiers of data consumed instead of an all-you-can-eat approach - will affect not just the wireless world, but may also affect Net Neutrality regulations in the wireline space, too.

I'm not so sure.

Though tiered pricing for wired broadband has met with little success, Nolter suggests that if it can be done successfully in the capacity-stressed wireless context, then a positive precedent can be set for similar pricing for wireline broadband providers.

According to Nolter, "AT&T's wireless billing plan may help draw out the FCC on its thinking, and guide the arguments of the broadband providers in the net neutrality negotiations." He blithely adds, "If wired broadband providers can make the case that wireless tiered pricing works, they will have evidence to sway the FCC -- or ammunition to blast the agency's rulings in court."

Rumor has it that that the FCC plans to drop its Wireless Competition Report tomorrow at its monthly meeting. In the past, this report has generally signaled that the market thrives. Tomorrow may tell a slightly different story, however. There is some belief that the Commission may come back on its past report cards, concluding - somehow - that the wireless marketplace is shy of "effective competition," though not uncompetitive.

Some in the telecom community believe that the FCC may be attempting to build a record to justify a more expansive regulatory push for wireless broadband competition. Stranger theories have been heard. The FCC's on a tear of late, trying to perfect broadband markets so that consumers get..well, the thriving market they already have. This could be another such exercise.

PFF was fortunate enough to get a letter-to-the-editor published in the NY Times this weekend, responding to the paper's call for broad Net Neutrality rules which would regulate broadband services.

Regulate the Internet?

To the Editor:

In "The F.C.C. and the Internet" (editorial, April 19), you ignore two important facts to arrive at your sweeping conclusion that the Federal Communications Commission must regulate the Internet to ensure its health and growth.

I was invited to participate in an April 13th conference call hosted by Kelly Cobb on behalf of the Internet Freedom Coalition to discuss the D.C. Circuit's recent decision in Comcast v. FCC and its impact on the FCC's Open Internet rulemaking proceeding. My task was to offer an explanation of the procedure by which the FCC might attempt to impose the Communications Act's "Title II" regulations on the Internet without congressional authority or approval, and what judicial challenges might emerge from such an action. What follows are my remarks, as prepared for presentation.

Google has announced that it will construct an ultra-high speed "experimental fiber network" to provide wholesale connectivity services on an "open access" basis to Internet content, applications, and services providers. Google states:

We're planning to build and test ultra high-speed broadband networks in a small number of trial locations across the United States. We'll deliver Internet speeds more than 100 times faster than what most Americans have access to today with 1 gigabit per second, fiber-to-the-home connections. We plan to offer service at a competitive price to at least 50,000 and potentially up to 500,000 people...

We'll operate an "open access" network, giving users the choice of multiple service providers. And consistent with our past advocacy, we'll manage our network in an open, non-discriminatory and transparent way.

My latest contribution to the ever-expanding network neutrality literature are comments filed in the Federal Communications Commission's Network Neutrality rulemaking proceeding.  My comments demonstrate that adoption of the network neutrality rules proposed in the NPRM would be unlawful because Congress did not give the Federal Communications Commission authority to protect Internet "openness."

The NPRM, incorporating by reference the jurisdictional theory stated in the Commission's 2008 Comcast P2P Order, asserts that the Commission has ancillary authority to prescribe rules principally under two statutory provisions: to implement the "federal Internet policy" contained in section 230(b) of the Telecommunications Act of 1996 and to achieve the statutory goal of encouraging broadband deployment pursuant to section 706(a) of the Act. It also appears to rely, at least to some extent, on sections 1, 201(b), and 257, and more broadly on whole titles of the Act - II, III, and VI. My comments examine the Commissions' jurisdictional theory in great detail, and conclude that there is simply "no jurisdictional 'there' there." None of these provisions, taken singly or together, provide a legal basis for the Commission to regulate the provision of Internet services.

One of the enduring lessons of childhood is that you should share your toys. But in the realm of electronic communications networks, this rule of thumb does not always have beneficial consequences. In a 1999 U.S. Supreme Court decision overturning portions of the FCC's unbundled network element sharing rules, AT&T v. Iowa Utilities Board, concurring Justice Stephen Breyer observed:

Nor can one guarantee that firms will undertake the investment necessary to produce complex technological innovations knowing that any competitive advantage derived from those innovations will be dissipated by the sharing requirement.

...

Increased sharing by itself does not automatically mean increased competition. It is in the unshared, not in the shared, portions of the enterprise that meaningful competition would likely emerge. Rules that force firms to share every resource or element of a business would create not competition, but pervasive regulation, for the regulators, not the marketplace, would set the relevant terms.

...

A totally unbundled world--a world in which competitors share every part of an incumbent's existing system, ... is a world in which competitors would have little, if anything, to compete about.

In the 1992 Cable Competition and Consumer Protection Act (amending the 1984 Cable Act), Congress recognized that investments in cable programming networks are no different. Although cable operators were statutorily required to share access to their satellite-delivered cable programming (widely viewed networks like Turner Classic Movies, HBO, and Lifetime), they were not required to share with their multichannel video programming distribution competitors access to their terrestrially-delivered programming networks. This exception to the program access requirements, known as the "terrestrial loophole," was created to permit the cable industry to develop some unique (generally local) programming networks that they would not be required to share with competitors. Several of the larger cable multiple system operators did just that, and created highly popular round-the-clock local news and public affairs programming networks, available only over cable. The popularity of this programming has led to pitched fights between cable incumbents and their competitors over access to these popular local networks, but to date, the FCC has rebuffed most attempts to get around the exception.