Time Warner Cable

There are troubling signals that the FCC is gearing up to further increase regulation of cable -- on top of the extra-legal new utility regulation the FCC already did in its 2015 Open Internet Order. 

What is profoundly troubling is the abject illegitimacy of their premise for more regulation of cable, i.e. the FCC’s new arbitrary and capricious definition of broadband that illegitimately redefined long-recognized, strong broadband competition -- out of existence with the stroke of a pen.

So what are the signals of more cable regulation? Two speeches from the FCC Chairman, one from the FCC General Counsel, another from the DOJ Antitrust Chief, a variety of Hill and edge-industry entreaties to regulate cable more via new MVPD or ALLVID regulatory proceedings, (but of course without regulating favored edge providers), and an explosion of new opposition to the proposed Charter-Time-Warner merger (by the exact same cast of characters whose opposition doomed the Comcast-Time-Warner merger).

This broad simultaneous level of focused regulatory chatter and organized activity is not coincidental, but highly-orchestrated and abjectly illegitimate.

Why is more cable regulation abjectly illegitimate?   

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 FCC’s 218 page “brief” defending its Open Internet Order begs a big question.

How many times is it “reasonable” for any agency to assert that their core legal arguments are “reasonable” before they sound unreasonable? A few? Several? A dozen?

Of the 19 core statutory arguments in the summary defense of the FCC’s Open Internet order, TWELVE defend the order by declaring the FCC’s legal judgment was “reasonable.”

When arguing in court that the FCC has the statutory authority to common-carrier-regulate the Internet for the first time, shouldn’t the FCC be able to declare at least once in their summary defense: “the law says,” “precedent supports,” or at least “Congress intended?”  

The FCC’s latest legal brief defending its Open Internet Order, will represent the FCC’s “strongest possible” legal arguments for its Title II net neutrality case – a vainglorious legal fortress.

In reality, the FCC’s legal case is closer to a magnificent beach sandcastle.

Its downfall will be that its case is sand, on top of a sand foundation -- that won’t be able to weather the elements intact.

Consider some of the elements the FCC’s sandcastle legal case must withstand.

The term “net neutrality,” or direct Congressional authority to mandate the FCC’s concept of “net neutrality,” is not found in law.

Please don’t miss my latest Daily Caller op-ed:” Presidential Candidate Lawrence Lessig’s Far Left Net Neutrality Agenda.”

• It explains the central part net neutrality plays in his Presidential candidacy and it also poses two relevant accountability questions about whether or not Mr. Lessig’s net neutrality movement has respected his call for getting big moneyed interests out of America’s political process.  

Please don’t miss my latest Daily Caller op-ed entitled “America’s Upside Down Cyber-Priorities.”

• It spotlights the national travesty of the government prioritizing net neutrality openness to the detriment of cybersecurity and a more secure Internet.

Everyone should have the freedom to innovate and compete in America, the land of opportunity.

There should be no innovation or competition double standard where government politically picks winners and losers by rigging competition via denying some companies the freedom to innovate and compete spectrally while granting it to their competitors.

With radio spectrum, America has created different but symbiotic spectrum models. One is licensed spectrum where spectrum for exclusive use is auctioned to the highest bidder. The other is unlicensed spectrum where anyone is free to share the same spectrum if they play nice and do not interfere with other spectrum sharers’ use. These models have never been either/or; they have always been free and open to use separately or together to maximize innovative, commercial, and competitive opportunity.    

We will learn quickly and unequivocally at the FCC’s August 6th meeting, if the FCC is true to its word -- that there will be no “utility-style rate regulation” of broadband.

While the FCC’s Open Internet Order fact sheet stated: “the Order makes clear that broadband providers shall not be subject to tariffs or other form of rate approval, unbundling, or other forms of utility regulation,” will the FCC majority -- in its first post-Open-Internet-order ruling -- cynically do the exact opposite by imposing de facto “utility-style rate regulation” to the IP transition from copper to fiber networks?

Please don’t miss my latest Daily Caller op-ed: “FCC’s Title II Trifecta Gamble.”

• It explains why the FCC’s Title II trifecta bet politically and legally could not be more risky.

What is the Internet?

Simple question, one would think the FCC could give a simple, straight and accurate answer when talking to their international regulatory counterparts, but they won’t.

That’s because they don’t want them to regulate the Internet like the FCC just has regulated the Internet in its Open Internet Order.

To try and justify regulating just the ISP-telecommunications-side of the Internet, but not regulating the Silicon-Valley-telecommunications-side of the Internet, the FCC’s, diplomatic message is as hypocritical as it is embarrassing: ‘do as we say, not as we do.’ (Translation: Adopt America’s Silicon-Valley-industrial-policy as your country’s policy.)   

The FCC has lost its credibility internationally because to claim that they are not regulating the Internet, the FCC must torture the definition of “the Internet” beyond recognition.

America’s international counterparts get the joke, they weren’t born yesterday.

And the joke is the FCC’s spin.