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In the wake of a generally-unexpected election outcome, most everyone in the Internet space is grasping to understand the implications of an all Republican-led government and a Trump FCC, on their key issues. 

The purpose of this analysis is to spotlight and explain the most predictable changes to expect. By design, it is not comprehensive, because some issues are naturally less predictable than others.

To be most accurate, this analysis will be high-level and strategic, not detailed and tactical, because the “what” and the “why” here are more predictable at this early stage than the specific “how,” “when,” and “who” -- for obvious practical reasons.

I. Why are some issues very predictable at this early stage?

First, the simple, hiding-in-plain-sight, premise here, is the process/values clarity and predictability that naturally flow from unified one-party control of the levers of government.

This is the fourth time in eighteen years there will be unified one-party control of government: the Democrats had it 1993-94 and 2009-10; and Republicans had it 2003-06 and now in 2017-18. History confirms the high-level strategic predictability of one-party control of the levers of government.

FOR IMMEDIATE RELEASE, November 9, 2016, Contact:  Scott Cleland 703-217-2407

Election Provides Opportunity to Modernize Communications and Privacy Laws; And to Ensure a Pro-competition FCC that Fully Respects the Rule of Law, Facts, Due Process, Property Rights and Contracts

Don’t miss Google’s enduring big wireless ISP ambitions in the midst of all the noise and confusion about the future of Google Fiber.

And also don’t miss Google’s grand ambitions to organize and dominate America’s spectrum-related information via its certification as a key FCC Spectrum Access System Administrator, given how little public attention it has gotten to date.

Google continues to pivot its Internet access ambitions away from deploying capital-expensive fiber technology deployment to deploying much-less-capital-expensive unlicensed wireless access technology, which does not require digging and burying fiber, and which may only use free unlicensed spectrum.

FOR IMMEDIATE RELEASE, October 27, 2016, Contact:  Scott Cleland 703-217-2407

The FCC’s Broadband Privacy Rules Confuse Consumers with Partial, Inconsistent and Misleading Privacy Protection Because Their Personal Data Remains Unprotected from Every Entity but ISPs, and the FCC’s Privacy Rules Are Effectively at War with the FTC’s Consumer Protection Mission  

WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:

To prove to the public once and for all that the FCC’s proposed broadband privacy rules are designed to benefit consumers and not special interests, the FCC has agreed to answer some reel questions from reel people about their reel privacy concerns just before they vote on the rules October 27.

These reel consumer questions were chosen by the FCC’s new artificial intelligence algorithm to determine which of the four million questions submitted in the FCC comments for this proceeding were the most open, neutral, competitive, non-discriminatory, unbiased, and FCC-supportive.

So that these reel consumer questions can be immediately re-tweeted, liked on Facebook, ranked on Google, and echoed by Amazon, the FCC’s algorithm will only chose consumer questioners who are willing to make their name and all personally identifiable information fully available to edge providers to monetize however they want, but not available at all to any ISP.

Top Questions for the FCC Commissioners on Broadband Privacy Rules

This analysis of the competitive facts underlying AT&T’s acquisition of Time Warner is an outgrowth of my discussion of the acquisition on NPR’s Diane Rehm Show this morning with Cecilia Kang of the New York Times and John Bergmeyer of Public Knowledge. The show can be heard here.

My main point was that the competitive facts are the best friend of this transaction.

I elaborate on that conclusion below.

The key facts lead me to believe the transaction should and will be approved, most likely by the DOJ, because of: the antitrust-benign competitive share facts in all the relevant markets; the antitrust precedents that constrain the DOJ’s ability to successfully challenge in court a vertical merger with these benign shares; and the companies have signaled they understand that if any legitimate competitive concerns arise they can be mitigated successfully with conditions and DOJ oversight of the transaction.    

If officials examine the competitive facts of this acquisition with an open mind and with due process, they’ll discover first impressions can be very misleading.

The FCC’s proposed broadband privacy rules are haphazard and have more random and conflicting “gaps” than Swiss cheese has holes. 

That’s because the FCC’s approach to privacy is obviously jurisdiction and technology driven, not consumer-driven.

When will the FCC put consumer privacy protection first, and join with the FTC to work with Congress to comprehensively update privacy legislation for the 21^st century?

Consumers deserve so much better than this.  

Let’s count the arbitrary and haphazard privacy gaps in the FCC’s proposed privacy rules.

Google deserves credit for trying something very difficult, and putting some big money where their mouth was.

That said Google Fiber looks like dead business model walking. 

Consider what happened this past summer.

June 22, 2016, it was announced that Google acquired Webpass, a wireless ISP. 

In July, per The Information reporting, “Alphabet CEO Larry Page ordered Google Fiber’s chief, Craig Barratt, to halve the size of the Google Fiber team to 500 people. …Mr. Page has also told Mr. Barratt to reduce the current cost of bringing Google Fiber to customers’ homes to one-tenth the current level.”

How can the FCC imagine it is pro-competitive to help Google expand its search monopoly by illegally forcing the search neutrality principle that Google opposes as never justified, on competitive pay-TV providers, in order to divert pay-TV viewer traffic to piracy-friendly Google-YouTube’s 1.6 billion viewers?  

[Note: This was submitted to the FCC for Reply Comments on the Title II Privacy NPRM]

The FCC’s Open Internet order and proposed Title II privacy rules divided what was unified.

For privacy, it broke what was working. Confused what was clear. Complicated what was simple. Unprotected what they sought to protect. Created more costs than benefits.

Since the Internet’s beginning the FTC has had privacy authority over information services.

For the decade since the FCC classified cable, wireless, and DSL broadband as an information service, and for the entire smartphone era where consumers became familiar with online privacy issues and regulation, the FTC was the sole unified regulator for protecting American consumers’ privacy.

In a 2014 filing to the FCC, the FTC explained why the FTC was better positioned to protect consumer privacy and data security than the FCC, because the FTC had national direct statutory authority to protect all consumers under: Section 5 -- that proscribes “deceptive” or “unfair” business practices; the Fair Credit Reporting Act (FCRA); and the Children’s Online Privacy Protection Act, (COPPA).