Net Neutrality

The central overriding question in the USTelecom v. FCC case challenging the FCC’s Open Internet Order may be: did the FCC read Judge Tatel right in that he de facto guided the FCC to pursue Title II to create the most solid legal foundation for net neutrality? That has been the public legal mantra of the FCC and the net neutrality movement for well over a year.

In the oral arguments last Friday before the D.C Circuit Court of Appeals, what did Judge David Tatel potentially signal about the Title II over 706 legal premise of the FCC’s case?

Do not let the FCC’s likely unlawful means of broadband Internet regulation, i.e. Title II, distract you from the additional likelihood that two primary ends of supposed net neutrality “policy canon” i.e. bans against “paid prioritization” and “two-sided markets” (only users should pay), are also likely unlawful, even under Title II, sans new legislation.

A preview of oral arguments December 4 before the D.C. Circuit Court of Appeals in the legal challenge to the FCC’s 2015 Open Internet Order warrants more than the already well-covered standard comparison of both sides legal arguments over the legality of Title II.

In the 2014 Verizon v. FCC decision, that overturned much of the FCC’s net neutrality “effort to compel broadband providers to treat all Internet traffic the same regardless of source,” Judge David Tatel’s starting point was what does the FCC want to compel from others and does it have the legal authority and latitude to do so – sans new legislation.

(This analysis assumes the near obvious that Judge Tatel will lead and write this decision.)   

Google is unique in its leadership, plans, and global marketpower to accelerate the majority of all global Web traffic “going dark,” i.e. encrypted by default. Google’s “going dark” leadership seriously threatens  to neuter sovereign nations’ law-enforcement and intelligence capabilities to investigate and prevent terrorism and crime going forward.

Google is not the only U.S. Internet company endangering the national security of many countries by “going dark” via end-to-end corporate encryption in an environment of exceptional terrorist risk -- Apple has been self-servingly irresponsible as well.

Nevertheless, Google warrants the spotlight and primary focus here on “going dark” for three big reasons.

You know there are big problems with the so called “principle” of net neutrality when the New York Times writes an editorial headlined “Why Free Can Be a Problem on the Internet” and their editorial has nothing to do with protecting consumers’ privacy/safety or protecting content from piracy, but it is only about the potential problem of consumers enjoying free Internet content for marketing purposes!

What a scandal! Someone call the FCC! Innovative commerce is happening on the Internet!

Few things make net neutrality activists look sillier, more nonsensical and hypocritical than their knee-jerk somber opposition to innovation in broadband pricing and marketing via differential pricing, sponsored data, zero-rating plans or other creative and experimental pricing or marketing plans – that all naturally result from a highly competitive wireless market.

Please don't miss my latest Daily Caller Op-ed, “Net Neutrality Trumping Privacy Undercut the US-EU Data Safe Harbor.”

• It is proof positive of the law of unintended consequences coming home to roost for the U.S. Government.

No surprise that political activist Larry Lessig, the intellectual leader of the net neutrality and anti-copyright movements, ran one of the most cynical, undemocratic, and stunt-driven Presidential candidacies ever, because that’s exactly the kind of cynical, undemocratic, stunt-driven campaigns his political followers have run to un-democratically dictate net neutrality and to undermine copyright protection online. 

The “common” thread of Mr. Lessig’s political grand strategies is his core elitist political assumption that people are stupid and that he can manipulate the masses into believing whatever he wants them to believe.  

It is supremely rich and ironic that Mr. Lessig would run a Presidential campaign with the stated singular purpose of ending “corruption” by passing his version of campaign finance reform legislation, with such an apparent corrupt political Presidential campaign strategy. 

Let’s review Mr. Lessig’s stated Presidential campaign strategy to see if it appears corrupt.   

Tim Wu, the self-described “policy advocate,” who coined the term “net neutrality;” who has been a leading activist for preemptively regulating broadband service like a utility despite scant evidence of any problem; who from 2008-2011 was Chair of the pressure group FreePress that ran the notoriously-deceptive “Save The Internet” campaign to force FCC net neutrality regulation that was overturned in court; who has been part of a decade-long PR demonization effort of broadband companies for first not having fast enough broadband speed relative to the world and then for enabling broadband “fast lanes” -- is now the “Senior Enforcement Counsel and Special Advisor” to the New York Attorney General, who is investigating Cablevision, Time Warner Cable and Verizon for allegedly providing broadband service at speeds less than the companies advertise.  

To try to justify mandating Title II utility regulation of broadband and the blocking of the Comcast-Time Warner acquisition, the Administration and FCC had to gerrymander broadband definitions to reach their political goal that wireless broadband service not be considered an official competitor to wireline broadband service.

Never mind the obvious: that the nearly three quarters of Americans who use a smartphone know  that one can functionally do most everything one wants on a mobile smartphone/tablet/laptop that one can do on a wireline connection. Also never mind: tens of millions of Americans who use only wireless broadband for all their Internet needs.   

To try to justify preempting State limitations of gigabit muni-broadband build-outs and its cheerleading for Government Owned Networks (GON) to politically and economically devalue commercial broadband competition, the government had to ensure that the wireless industry could not create four more very-high-speed competitors to wireline cable and telco broadband providers.

It did so by unilaterally changing Federal spectrum policy to starve and limit the amount of licensed and unlicensed spectrum available to wireless users long-term, because for smartphone users -- spectrum is speed. Limit spectrum, limit speed, to maintain the charade that wireless broadband does not compete with wireline broadband.

It is timely to fact check the Federal Government’s storyline that broadband is a ‘core utility,’ given a new White House report that directs municipalities that broadband is a “core utility… like water, sewer and electricity;” and given that a senior FCC official recently encouraged local municipalities at the NATOA conference to build their own local broadband infrastructure with the FCC’s backing now that the FCC has claimed the legal authority to preempt State laws limiting municipal broadband.    

The juxtaposition of Google tacitly accusing the EU with “digital protectionism” and “discrimination” as the EU’s Digital Chief, Günther Oettinger, visits D.C. and Silicon Valley, while the Google-created Internet Association this week asks for U.S. protection from ISP “discrimination” in an appeals court brief in support of the FCC’s Open Internet order – exposes exceptional hypocrisy.

Antitrust and privacy regulators around the world weren’t born yesterday. They know Google and its online platform allies want it both ways – manipulating policy to advantage them and disadvantage their potential competitors.