New broadband uncertainty -- is 700 MHz info? or telecom service?

There are so many problems with the FCC's new 700 MHz auction rules that create a more regulated open access/net neutrality license -- its hard to know where to start.

• Be confident that I will get to them all over time.

Yesterday I highlighted the dirty little secret that there is very substantial risk that this will become known as the "do over auction" because it may not raise enough money to satisfy the rules and because the FCC likely overstepped its legal authority and will be overturned  in court.

Let's raise another dirty little secret behind the new rules that will increase regulatory uncertainty for broadband deployment.

• Will the FCC's new specially-tailored Google-camp 700 Mhz license be classified by the FCC as a regulated common carrier telecom service? Or will it be classified as an unregulated information service?
• Inquiring minds want to know.

If it is a common carrier telecom service, why did they stop at devices and apps forced unbundling -- why not go all the way with wholesale resale and full unbundling like the Google camp urged?

If it is an unregulated information service like the FCC ruled unanimously just this year... what do these new info service restrictions on 700 MHz portend for all other supposedly unregulated broadband?

• Has the 1996 Telecom Act mandate to deregulate and the Supreme Courts' Brand X decision been politically overruled by the FCC or just conveniently ignored?

As most people who read this blog are well aware, the legal fight over whether broadband was an unregulated info service or a regulated common carrier telecom service was supposedly settled by the Supreme Court in 2005 after a bitter and detailed seven year legal battle that caused huge investment uncertainty.

I have studied these issues in depth for 15 years and some consider me somewhat of an expert in these matters and from what I can tell this ruling tries to mix oil and vinegar.

• Either the FCC has figured out how to change the chemistry of the molecules of info sevices (oil) and telecom services (vinegar) so that they will not separate but stick together,
• or the FCC is going to have to do some constant shaking to keep them mixed together in this 700 MHz auction...
• Maybe the FCC's political bobbing and weaving or its semantic legal sumersaults will suffice to keep "mixed" the info services (oil) and the telecom services (vinegar) from separating again and pulling the 700 MHz auction rules down with it...