Wireless Spectrum

The House's rejection of the FCC's December Open Internet order 240-179 is just the latest in an ongoing high-profile accountability gauntlet for the FCC's unauthorized, unwarranted and unjustified net neutrality rules.

• While the wheels of democracy, public accountability, and the rule of law can turn slowly, they do turn steadily.
• And from what we have seen so far, the FCC's out-of-the-mainstream, over-reach effort to regulate the Internet for the first time, has been pummeled in our Government's accountability process gauntlet to date, and it can be expected to continue to be pummeled going forward.

The Net Neutrality Accountability Gauntlet:

First, the President's January Executive Order, "Improving Regulation and Regulatory Review" to seek the "least burdensome" regulations, was a big post-mid-term election political pivot by the Administration to be more sensitive to business, economic growth and job creation concerns.

• Through the new lens of the President's Executive Order, the FCC's pre-mid-term-election-mindset net neutrality rule making has been viewed as badly out-of-focus with the renewed bipartisan interest in economic growth and job creation.

Despite Sprint and Clearwire opposing the proposed AT&T-T-Mobile acquisition, expect the DOJ and FCC to approve it, because the DOJ appreciates the facts of vibrant wireless competition and because the FCC will come to appreciate how the transaction actually helps solve many of the FCC's highest priority problems.

As a veteran analyst, who has closely covered most all of the roughly two dozen major communications mergers since the 1996 Telecom Act, it is easy to cut through the critics' standard, hyperbole and histrionics -- that they use to attack every major communications merger -- to get to the rub of this matter.

• The rub here is twofold:
  • First, the market competition facts of this transaction and the DOJ's many analogous precedents from previous similar mergers, provide no basis for the DOJ to try and block this merger; and
  • Second, the communication policy facts of this transaction will help solve many of the FCC's highest priority problems: promoting universal broadband, mitigating spectrum exhaust, accelerating broadband adoption, and promoting economic growth and competitiveness.

Like I blogged that the Comcast-NBCU merger would get approval when the hyperbole and histrionics were similarly over the top and not credible, this acquisition ultimately will gain government approval.

It appears the FCC has lost sight of the essential fact that legitimate policy must come from a legitimate process.

Currently, the FCC is reportedly preparing to mandate net neutrality regulations December 21st, ostensibly to ensure an open and transparent Internet.

• Unfortunately, the FCC has not been open or transparent at all in its process of late, giving the public or markets no public justification, rationale, or explanation why what they are planning to force is legitimate.
• How does not following or respecting the spirit or principle of "openness" in FCC "open" Internet policy making -- engender legitimacy?

How does the FCC seriously threatening to impose the "nuclear option" of Title II telephone regulation of the Internet behind closed doors, in order to coerce assent for, and compliance to, unnecessary, unjustified, and unwarranted permanent net neutrality regulations under Title I -- engender legitimacy?

How does the FCC deciding its most controversial rule making exactly in between the seam of the current Congress, where ~300 members asked the FCC to defer to Congress, and the future Congress, which has made it clear they want the FCC to defer to Congress -- engender legitimacy?

FCC Chairman Julius Genachowski signaled a major FCC policy pivot Monday, from a fourteen-month focus on regulating net neutrality to apparently a new singular focus on "the economy and jobs" -- in his annual speech before NARUC, the association of state utility regulators.

• (Kudos to Randy May of the Free State Foundation for flagging this very significant policy shift in his outstanding post.)

Takeaways from the FCC Chairman's speech.

First, this is a very significant speech to pay attention to, because the FCC is laying out what the states can expect from the FCC in the year ahead.

37 States are now involved in a "powerful multi-state investigation" of "Google's Streetview snooping" per a press release from investigation leader, Connecticut Attorney General Richard Blumenthal, who released a new follow-up letter to Google asking for more information and clarification of its representations to date. 

The letter shows the investigation is very serious. Its prosecutorial exactness strongly suggests that investigators believe Google has not been forthright in its answers to date and that it could be covering up material information to the investigation. 

• Several questions in the letter also indicate that the investigators are seriously concerned about the integrity and completeness of Google's systems of internal controls and supervision to ensure the safety and privacy of consumers. 

What appears to be the most problematic line of inquiry is whether or not Google tested this software before it was used in public to collect private information on consumers. 

Don't miss the hilariously poignant comedy video clip (4 min) of comedian Louis C.K. from Conan O'Brien's show on how "everything's amazing and nobody's happy."

• Louis C.K.'s lampoon of how ridiculous it is to whine when new amazing phone and broadband technology does not work perfectly or immediately, should be required viewing at the New America Foundation's planned whine-fest "panel discussion" entitled "why your cell phone is so terrible," which I previously blogged about yesterday. 

Like the parable of the boy who blurted out the truth that the emperor had no clothes on, after the emperor was duped by tailors claiming to use "special" thread only visible by "smart" people, the folks at the New America Foundation/FreePress are trying to dupe the FCC into mandating new net neutrality regulation by claiming that everyone who is really "smart," like the folks at New America, know that cell phones are "terrible." 

If you did not read my systematic rebuttal of how ridiculous a premise that cell phones are "terrible" is, please see my previous post for the evidence-laden case.        

The New America Foundation and Slate Magazine is presenting a forum on Friday April 2nd in D.C. entitled: "Why your cell phone is so terrible" featuring:

In a filing to the FCC on the National Broadband Plan, the DOJ Antitrust Division, the U.S Government's leading expert in assessing the state of competition in communications markets, implicitly rejected net neutrality proponents' core thesis of broadband market failure.

• This DOJ filing, which represents the most recent U.S. Government expert assessment of broadband competition, could make it extremely difficult for the FCC to legitimately conclude in the coming months the factual opposite --  broadband market failure.
• Without a sound factual finding of broadband market failure, it also could be extremely difficult for the FCC to legally justify preemptively mandating common-carrier like regulations on un-regulated broadband information service providers in the FCC's pending open Internet proceeding.

If you are interested in learning great "pearls of wisdom" based on expansive experience and clarity-of-thought on the question of wireless innovation, and proposed Internet regulation of wireless innovation, please read the Farber-Faulhaber white paper; at a minimum, please read the many wonderful highlights that I have pulled out of the paper for you below.

Professor Dave Farber, a widely respected Internet pioneer who has been called the "grandfather of the Internet" for his contributions to computer science, and a former Chief Technologist for the FCC, co-authored an important white paper with Professor Faulhaber for the FCC's Wireless innovation Notice of Inquiry.

Highlights from this outstanding paper: