The Federal Communications Commission wants to know how fast your broadband connection is.  The federal agency is now offering consumers and businesses a chance to test broadband speeds to raise awareness about broadband.  But the test results also help illustrate the wide variation between speeds promised by providers and those actually experienced by customers.

The FCC wants to collect this information because broadband providers have often refused to provide it themselves, citing customer privacy or an unwillingness to release potentially useful information to competitors.  By asking visitors to supply their street address and general location, the agency can at least develop anecdotal information about the range of speeds Americans experience.

However, the agency is likely to discover wide variations in the accuracy of the results based not on what service providers deliver, but instead what the speed test itself reports.

The FCC is relying on two speed test providers, randomly assigned to those taking the test.

• Measurement Lab (M-Lab), which provides researchers with Internet measurement tools on a collaborative basis, and
• Ookla, a private company that provides web-based network diagnostic applications.

Stop the Cap! used both providers to conduct three individual speed tests from Broadband.gov.  There were dramatic differences in results.  M-Lab consistently reported far slower speeds than Ookla.  Ookla’s results were closest to the advertised speeds from our broadband provider — Time Warner Cable.

This speed test result from M-Lab was the closest to the average of all three speed tests conducted with this service

Ookla's speed test came closest to achieving the marketed speeds for Rochester, New York Time Warner Cable Road Runner Turbo customers. The download speeds reported also include the effects of "PowerBoost," a temporary burst of additional downstream speed.

Both speed test providers rely on different regional servers to deliver potentially more accurate speed test results, less impacted by the additional “hops” traffic must take when traveling outside of a nearby region.  But considering the enormous disparity between the two tests, these real-world results may not actually represent reality.

Which test comes closest to the actual speeds available here?  Ookla.  But even then, your results may vary.  Ookla provides speed tests for both Time Warner Cable and Frontier Communications, our local phone company.  The downstream speeds reported were widely different, despite both test servers being located within a 50 mile radius.

Time Warner Cable's speed test application is also provided by Ookla. (This result comes from a server in nearby Syracuse -- the Rochester location was not working properly)

Ookla's speed test for Frontier Communications delivered dramatically different results for downstream speeds

The FCC seems to acknowledge the potential disparity in results on their disclaimer page:

Please note that the Consumer Broadband Test in its current software based form may not be an accurate representation of connection quality provided by your broadband provider. The results can be impacted by a range of factors — for instance, the test can vary based on the geographical distance of the user from the testing server, end-user hardware, network congestion, and time of day. However, this application can provide a helpful indicator in comparing consumers’ relative broadband connection quality and in understanding the performance metrics of broadband connections.

What results do you get from Broadband.gov’s provided speed tests?  Share your findings in our comment section.

Verizon Communications has made its intentions clear — would-be broadband customers in its service area who are off the FiOS footprint can pound salt.  The Federal Communications Commission issues regular reports on broadband services and their adoption by consumers across the United States.  In the latest report, published this month, customers in Verizon’s current or former service areas who are not being served by Verizon FiOS are behind the broadband 8-ball, waiting for the arrival of DSL service from a company that has diverted most of its time, money, and attention on deploying its fiber-to-the-home service for the big city folks.

One might think the worst DSL availability in the country would be in rural states like Alaska, or territories like Guam, or income-challenged Mississippi.  No, the bottom of the barrel can be found in northern New England and the mid-Atlantic states — largely the current or former domain of Verizon:

Percentage of Residential End-User Premises with Access to High-Speed Services by State
(Connections over 200 kbps in at least one direction)

Source: FCC High-Speed Services for Internet Access: Table 19

Some might argue that DSL penetration ignores Verizon’s fiber upgrades, but does it?

Providers of High-Speed Connections by Fiber by State as of December 31, 2008
(Connections over 200 kbps in at least one direction)

Source: FCC High-Speed Services for Internet Access: Table 20

A survey of the rest of the country calls out Verizon’s inattentiveness to DSL expansion in its remaining service areas not covered by FiOS.

For example: Alabama, Idaho, Montana, and Oklahoma all enjoy 80 percent DSL availability.  Utah and Nevada achieved 90 percent coverage.  Even mountainous Wyoming, the least populous state in the country, provides 78 percent of its state’s customers with the choice of getting DSL service.  Yet New York manages only one point higher among its telephone companies, largely because of enormous service gaps upstate.

What happened?  By 2002 Verizon began to realize their future depended on moving beyond providing landline service.  The company began to divert most of its resources to a grand plan to deliver fiber connections to residences in larger markets in its service areas.  While great news for those who live there, those that don’t discovered they’ve been left behind by Verizon.  Northern New England got flushed by Verizon altogether — sold to the revenue-challenged FairPoint Communications who assumed control of Verizon’s problems and managed to make them worse.

The argument that rural broadband is “too expensive” doesn’t fly when looking at DSL availability in the expansive mountain west or rural desert regions.  Compact states like Vermont, New Hampshire, and Maryland are far easier to wire than North Dakota, New Mexico or even Texas with its large rural areas (87, 87, and 81 percent coverage, respectively).  Verizon simply doesn’t realize the kind of Return on Investment it seeks from FiOS customers — a dollar amount investors want to see.

Of course, that’s the argument Frontier Communications, and FairPoint behind it, made to regulators in sweeping promises to deliver better broadband service.  FairPoint missed its targets and declared bankruptcy.  Frontier is still in the “promises, promises” stage of its deal to take over millions of rural customers currently served by Verizon.

An article from McClure magazine, circa 1906, has a lot to say about today's broadband regulatory battles. We've been here before.

Yesterday, while browsing through some of the sources I review for story ideas, I encountered yet another one of those tired “free market solves everything” pieces from Randolph May, filled with the usual memes about keeping government regulation and oversight out of broadband.  May, like his pro-business friends, always believes that markets are self-correcting, and that providing checks and balances for the de facto duopoly most Americans have for broadband service would ultimately harm them.  Besides, if a provider gets out of hand, its competitor will pounce on the opportunity.  Sometimes that happens, but often it does not.  For investors, there is more money to be made going along to get along avoiding price and service wars.  Indeed, when competition gets too hot and heavy, Wall Street brays that “consolidation” is required to deal with all of the revenue-losing-harm healthy competition causes.  Just today, those calls are heard in the prepaid wireless market as analysts continue their relentless pounding that Leap Wireless’ Cricket must merge with MetroPCS to create cost savings, and stop price erosion (your savings).

I want to focus on May’s unintended, but disastrous comparison of American telecommunications regulation with that of the railroad industry of the 1800s:

“This form of regulation was first adopted at the federal level in the Interstate Commerce Act in 1887, which created the Interstate Commerce Commission to regulate the railroads. In 1910, the ICC was given authority to regulate newly-emerging telephone companies as common carriers, and this authority was transferred to the FCC when it was created in 1934.

By the 1980s, the railroads were largely deregulated and the ICC was abolished in 1995. And towards the end of the last century, with the emergence of competitive choices, the FCC began to relax even the regulation of POTS, or plain old telephone service, provided by formerly monopolistic telephone companies. So it was no surprise when the FCC decided to reject public utility-style regulation for the then new broadband Internet service providers.”

May is obviously no student of history, and the introduction of railroads into this argument gives me my “free market” ability to pounce on his out of hand rhetoric.  The irony is that this debate takes place over the open and free Internet that May and his friends are willing to entrust to a handful of corporate providers who provide most of the connectivity in this country.  They wouldn’t interfere with traffic if it meant making a pile of extra profits selling “preferred partnerships,” would they?

There are obvious metaphors between the railway industry of the 1800s and the broadband industry of 2010s.  Many of the challenges are remarkably similar, especially if one considers broadband a sort of digital railroad that is becoming increasingly important to the economy and job growth.

May is lucky that nobody but those who love studying history are likely to notice he completely ignored the rationale for the Interstate Commerce Act of 1887.  Railroad robber barons had by this time put such a stranglehold on the industry, entire cities prospered or withered based on what a railroad executive decided was the appropriate price for service on a schedule good enough for that community.  If you lived in a city with a strong railroad system with fast lines, competition, and a healthy choice of destinations, your city generally enjoyed economic success. If you lived in an uncompetitive city deemed a railroad backwater by a provider, you paid extortionist pricing to move your goods on a limited schedule that sometimes was followed, other times not.

By the time America had caught on to these abusive practices, railroad barons were secretly charging lower prices and quietly providing rebates to their preferred partners, mostly big businesses, and overcharging everyone else.  They even charged completely different rates for different products.  If you transported tobacco you paid more than transporting flour.  Farmers paid one price to transport crops, lumber suppliers paid something entirely different to move wood.  If you were a friend of the railroad industry, and important to their lobbying efforts, you got a pass to travel fare-free.

It took years for Americans to finally achieve the railroad equivalent of Net Neutrality.  That’s because the railroads were politically savvy, and maintained their own version of astroturfing — an army of business leaders and supporters provided favors and money to parrot railway talking points in the media and before Congress, all while claiming they were ordinary Joe’s.  Railroads supplied generous campaign contributions to members of Congress, and so much money was spread around, it eventually turned into railroad industry graft with the Crédit Mobilier scandal of 1872.

An entire class of “ordinary citizens” and business leaders pleaded in the printed press not to regulate the railway system.  It would create “unintentional consequences,” would “hurt jobs,” “ruin the economy,” and would be contrary to the laissez-faire policies of the time, which allowed a completely unregulated railway system to “prosper.”  Besides, railroads had “transformed the transportation infrastructure” of America and created economic benefits, all from “millions railways invested to improve railway lines.”  Regulation would “discourage that investment.”

Americans might have believed that had the record of abuse by the railway industry not grown into a bulging dossier of unfair pricing and anticompetitive activities. Rural communities were charged high prices for slow, erratic railway service because they rarely had a second choice.  Businesses refused to locate in communities where a monopolistic railway charged high prices and provided poor service.

But even legislative reform in 1887, designed to stop railway abuses and charge fair pricing, left enough loopholes in place for the railroad industry to continue its ways for years to follow.  Court findings of wrongdoing were ignored by the industry, at least until they could successfully appeal them to federal district courts, which tended to favor business points of view in their rulings.

Sound familiar?

Ray Stannard Baker

But one need not take my word for it.  In 1906, McClure’s magazine published the story of Danville, Virginia and its railroads by Ray Stannard Baker, a popular investigative reporter (known then as a ‘muckraker’) for the magazine.  While you may be unfamiliar with Danville, located in south-central Virginia, history dealt it several interesting cards in the 1800s.  Its Richmond and Danville Railroad was immortalized in the song “The Night They Drove Old Dixie Down,” telling the story of how the Confederate army’s hopes of defending Richmond in the waning days of the Civil War were dashed when the Union cavalry destroyed the railroad tracks.  General Lee’s army retreated to Danville — the last declared capital city of the Confederate States of America.

As the era of Reconstruction began, Danville threatened to become as well known as Richmond to the east and Lynchburg to the north.  All three communities enjoyed the benefits of competitive railways — providing stable, affordable, and plentiful service between all three cities and points beyond.  With excellent railways, an economic boom followed, and the communities prospered from manufacturing, cotton, and tobacco products, all transported on the railway system to eager buyers.  What was once a city of 5,000 rapidly grew to 20,000.  Danville because a world leader in tobacco production and distribution and built what was once one of the world’s largest textile mills — Dan River Industries, which survived until 2008 when the company declared bankruptcy.

Yet Danville remains completely unknown to most, a forgotten city whose early boom ended when a railway monopoly arrived and strangled the community to a former shadow of itself, perhaps never to completely recover.  The effects were long-lasting.  Today, Danville is a challenged city of 44,000 and declining.  Lynchburg, in contrast, prospered through the manufacturing era, often called the “Pittsburgh of the South,” and has successfully transitioned into one of America’s “top 10 digital cities,” supporting its population of 73,000.  Richmond towers over both, with 200,000 city residents in a community well-known nationwide.  Both of those cities enjoyed competition from railways and built a substantial economic base from that that paid dividends in the decades that followed.

Of course, in 1906, the final chapter of America’s annoyance with railroad robber barons had yet to be written.  Fights over pricing and service continued for years, as communities depended on railroads for their economic well-being.  Ultimately, the Eisenhower Administration’s decision to undertake a national highway system, built by and supported with public funds, was symbolically the end of an era that allowed a handful of corporate executives and railroad trusts to determine the fate of entire communities, all based on the kind of railroad service they would enjoy.  The highway system gave rise to the trucking industry, with air service from municipally-backed airports picking up some of the more urgent business.  Railroads had to compete like they never had before.

The article, lengthy yet surprisingly accessible for contemporary audiences, is provided below in a slightly condensed form.  The more you read, the more you realize those who refuse to learn from history are doomed to repeat it.  Folks like Randolph May are counting on America’s ignorance of the challenges faced by our great-great grandparents, who would find familiar themes in today’s competitive and regulatory broadband battles, and who ultimately wins control of the lines and the traffic that crosses them.

The railroad industry asked people to trust them, and said notions of discriminatory pricing and access were nonsense, because they didn’t make economic sense.  But they very much did, especially when alternatives were limited, if they existed at all.

… Continue Reading

Americans have got it all wrong.  Their ‘faster is better’ obsession over broadband speed threatens to harm jobs and hurts those looking for work.

Those are the views of Stuart N. Brotman, a senior fellow at the Digital Policy Institute, which calls itself “a vehicle for faculty research that coalesces around the arenas of law, regulation, economics, intellectual property, and technology as these relate to public policy issues of local, state and national interests.”

Brotman argues that while broadband speeds matter, regulators should not be focused on speed as much as considering how broadband can help Americans find jobs.

The Agriculture and Commerce Depts. are tasked with administering $7.2 billion in stimulus funding for broadband by Sept. 30. As they decide where to place the bulk of those funds, which remain unawarded, government officials should show preference to grant and loan applicants that can use broadband to reach displaced workers more quickly.

There also need to be more funds made available to, and a greater focus on, public institutions, such as libraries, community centers, job training facilities, and adult education sites, where broadband spending may have the largest impact on jobs.

Greater broadband competition, which the FCC recognizes is essential to promote more infrastructure development and more varied pricing, also will be helpful. So, too, will be more efficient use of our spectrum resources, particularly those that have been controlled by colleges, schools, and other educational institutions for decades. Those airwaves can be better deployed to deliver high-speed wireless broadband services or leased to private-sector companies offering them.

Large telecommunications providers couldn’t have said it any better.  They have repeatedly argued broadband speeds are besides the point.

Brotman

AT&T last fall wrote the Federal Communications Commission, suggesting residential customers would do fine with broadband speeds that let them “exchange emails, participate in instant messaging, and engage in basic web-browsing.”  For AT&T, speed was less important than setting “a baseline definition of the capabilities needed to support the applications and services Americans must access to participate in the Internet economy—to learn, train for jobs, and work online….”

Verizon echoed AT&T, asking the Commission to retain the current minimum definition of broadband speed at 768kbps downstream and 200kbps upstream.  That allows them the chance to participate in stimulus funding projects that set the broadband speed bar low, especially in the rural areas Verizon wants to spend less on or is trying to sell-off.

“It would be disruptive and introduce confusion if the Commission were to now create a new and different definition,” Verizon said in its letter to the FCC.

Some of the smaller telecommunications companies also believe broadband speed should be de-emphasized.

Embarq, before completing a merger with CenturyTel (now CenturyLink) told the FCC 1.5Mbps broadband service has become “the most common offering.”  Embarq called that “consistent with an emphasis on economic development and jobs as many important applications, such as video conferencing are arguably possible only with 1.5 Mbps service and above. Any higher speed threshold, however, would risk defining as unserved the large number of satisfied customers of 1.5 Mbps service, which seems implausible.”

Embarq underlines the real reason providers are concerned about broadband speed — they’re not delivering it.  Once legislators or the Commission increases minimum broadband speed levels, many of these companies may find themselves below the threshold, guilty of “just enough speed to scrape by” in non-competitive markets.  That could lead to the prospect of facing federally-funded stimulus projects from others in their service areas, now deemed “unserved” or “underserved.”

Brotman further advocates that funding be focused on those that can deliver results “quickly.”

Embarq would agree with him there as well, stating “funds through grants directly to broadband providers rather than loans or other measures as this will have the greatest and quickest impact in bringing broadband to the hardest-to-serve areas.  …there is no time to wait for complete broadband maps or block grants to states for redistribution.”

Telecommunications companies would also do well by Brotman’s suggestion that federal funding for broadband projects reaching public and community service institutions should be emphasized.  As communities often request companies provide those services at a deep discount or free in return for franchise agreements or other licensing provisions, that’s money AT&T, Verizon, and others need not spend out of their own pockets.  Getting free airwaves swiped from educational institutions to deliver wireless broadband also benefits AT&T and Verizon, who are in that business as well.

When a “policy institute,” “research group,” or other seemingly unaffiliated entity starts rehashing telecommunications industry talking points, it’s time to start digging.

Buried on page five of a PDF file describing the work of the Digital Policy Institute, one comes to a section titled, “DPI Impact and Influence.”  DPI doesn’t list their financial supporters or partnerships as such.  Instead, they call them “national, collaborative relationships.”  Who does DPI collaborate with?

• AT&T
• Embarq
• National Telecommunications Cooperative Association (rural telco lobbyists)
• Verizon
• …among others.

Imagine my surprise.

But that’s not all.  Stuart N. Brotman Communications counts (or counted) among his clients AT&T, Cox Cable, National Cable and Telecommunication Association, and the New England Cable TV Association.

Perhaps Business Week would have done a better service to readers had they also disclosed that.

President Barack Obama reiterated his support for Net Neutrality policies and expressed concern about providers trying to charge higher fees and extract more money from consumers for broadband service.

In a post State of the Union question and answer session held on YouTube, the president responded to a question regarding policies that would forbid broadband providers from tampering with Internet traffic, typically for monetary gain.

“We’re getting push back, obviously, from some of the bigger carriers who would like to be able to charge more fees and extract more money from wealthier customers,” he said. “But we think that runs counter to the whole spirit of openness that has made the Internet such a powerful engine for not only economic growth, but also for the generation of ideas and creativity.”

The reference to charging higher fees and extracting more money from wealthier customers may signal Obama recognizes that Internet Overcharging schemes like usage limits and usage-based billing represent an end run around many Net Neutrality prohibitions.  By charging excessively high prices for broadband traffic, Internet providers can effectively choke off potential competition to both its phone and television programming businesses, as well as higher bandwidth innovations still to come.

The Obama Administration’s support for Net Neutrality dates back to the early days of the presidential campaign, when then-Senator Obama expressed support for Net Neutrality.  The Federal Communications Commission has been tasked to develop a Net Neutrality policy to be enforced by the Commission.

Critics contend the FCC has no authority to enforce such provisions.

Robert McDowell, one of the two minority Republican commissioners at the FCC predicted any attempt by the Commission to enact sweeping Net Neutrality policies would likely face a rapid challenge in the courts. One popular venue for such cases has been the DC Circuit Court of Appeals, which has a track record of deciding cases in favor of providers.

Such a ruling could partially or completely derail an FCC Net Neutrality policy until Congress passed legislation to specifically authorize the Commission to regulate broadband policy.  Congress can also pass Net Neutrality legislation itself.

President Barack Obama answers a question about Net Neutrality policy in his administration.

The Electronic Frontier Foundation is not happy with the Federal Communications Commission’s proposed Net Neutrality rules because they come with built-in loopholes, the most egregious being a clause which allows providers to throttle, block or otherwise interfere with traffic that could consist of “the unlawful distribution of copyrighted works.”

The movie and recording industries have been attacking Net Neutrality for months, accusing it of providing a copyright-violating-free-for-all.  The FCC seems all-too-willing to adopt that meme, and write a convenient lobbyist-friendly loophole into Net Neutrality policies that would suggest provider interference with broadband networks is bad… except when this or that special interest redefines it as “good and lawful network management.”

For years, the entertainment industry has used that innocent-sounding phrase — “unlawful distribution of copyrighted works” — to pressure Internet service providers around the world to act as copyright cops — to surveil the Internet for supposed copyright violations, and then censor or punish the accused users.

From the beginning, a central goal of the Net Neutrality movement has been to prevent corporations from interfering with the Internet in this way — so why does the FCC’s version of Net Neutrality specifically allow them to do so?

The EFF is asking consumers to sign an online petition asking the FCC to yank that exception out of their proposed Net Neutrality rules, and let the industry use existing law enforcement methods to protect copyrighted works.  Of all the industries that seem to do just fine zealously efforting to protect its copyright interests, Hollywood and the music industry don’t need additional special protection clauses inserted into broadband policy law.

Law enforcement can use existing laws to chase crime, and most honest Internet Service Providers would tell you they don’t want to police their users.  Allowing this exception is a convenient backdoor to do what some have wanted all along — to throttle or block high volume network traffic like torrents and newsgroups, this time under the guise of taking a bite out of crime.

While directly appealing to the FCC might be more effective, signing the petition at least gives the EFF the ability to draw media and political attention to a worthy endeavor.

Let’s not repeat the same mistakes certain other major policy initiatives have endured this past year, where good intentions were steamrolled by lobbyists into a loophole-ridden, industry-protectionist horror show.

The best way to ensure an open and free Internet is to literally demand exactly that — no exceptions.

DC Circuit Court

Once again, the United States Court of Appeals for the District of Columbia Circuit is proving to be the best friend corporations have to unravel regulatory policy and consumer protection laws that might violate corporate free-speech or trade rights.  It has become a favored venue for telecommunications providers who want to be rid of pesky prohibitions or reasonable regulation.

After a series of arguments, universally considered disastrous for the Federal Communications Commission’s authority to regulate broadband, the cable operator may want to send flowers to the Court… a lot of them.

Earlier this month, attorneys for the FCC defended their right to tell Comcast it cannot throttle its customers’ broadband speeds.  The FCC maintains it has regulatory authority over broadband service, claiming such power could be inferred from Title I, Section 230(b) of the Communications Act, which states that it is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet” and “to promote the continued development of the Internet.”  From that the FCC wrote a policy statement stating it was, “necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner.”  That was the basis for their crackdown against Comcast’s speed throttle.

After the arguments between Comcast and the FCC concluded, court-watchers believe the Commission’s days of broadband oversight are numbered.

Ars-Technica’s Matthew Lasar documented the probable train wreck for those who seek to rein in provider abuses.

At issue is whether the FCC has been granted direct legal authority for Internet regulation by Congress. Comcast, and as it turned out many on the Court, believe the FCC is relying on policy statements, not written law, for their regulatory authority over Internet Service Providers.  The Court transcript says it all:

Randolph

“In looking this over I found a good many situations in which Congress has instructed the FCC to study the Internet,” said Justice A. Raymond Randolph, [appointed to the Court by President George H.W. Bush in 1990], “and taxation of transit sales transactions on the Internet, and this, and that, and the other thing. But what I don’t find is any congressional directive to the FCC to regulate the Internet.”

It wasn’t hard for [Comcast attorney Helgi G.] Walker to summon a response to this observation. “That’s right,” she declared.

And with that, Comcast had won. Even before the FCC’s attorney got to the bench, the judges were doing Walker’s job, swatting aside arguments on behalf of the agency’s Order sanctioning the ISP. Pro-FCC briefs to the court had noted that the Supreme Court recognized the Commission’s ancillary authority in its Brand X decision, a crucial ISP access case. Randolph threw this bullet point into the trash icon, referring to the “offhand statement” in Brand X. “And the Supreme Court has moved so far away from that kind of an analysis in today’s modern jurisprudence,” he added, “it seems antiquated.”

By the time Commission lawyer Austin C. Schlick began his rebuttal, Randolph moved in for the kill.

“May it please the Court,” Schlick began. “Ms. Walker hasn’t attempted to defend the actual network practices that were employed here, and so I won’t spend time just… ”

Sentelle

[Justice David] Sentelle cut him off. “Well, her position is that she doesn’t have to,” he tersely noted. “She’s here to say that you don’t have any business inquiring into those practices, ergo we don’t either.”

That’s true, Schlick conceded. “Right,” Sentelle warned. “So you may want to move on to something that’s at issue then, Counsel.”

And that was largely that.  The Court is very likely to hand down a ruling that strips the FCC of its ability to regulate or oversee broadband service in the United States.  Even Schlick knew what has forthcoming:

By the end of the discussion Schlick was bargaining with the judges. “If I’m going to lose I would like to lose more narrowly,” he confided. “But above all, we want guidance from this Court so that when we do this rule-making, if we decide rules are appropriate we’d like to know what we need to do to establish jurisdiction.”

“We don’t give guidance,” Randolph grumbled, “we decide cases.”

Comcast should have bought lunch for everyone.

So now public policy groups and advocates of FCC oversight over broadband, particularly as it relates to Net Neutrality, are scrambling to figure out what to do next.

It comes down to four possible outcomes:

1. One of the parties appeals the case;
2. Corporate control of broadband without oversight is assured, as the FCC is stripped of any regulatory authority;
3. The FCC manages to find some other wording from laws Congress passed that justifies lawmakers wanted the agency to oversee and regulate broadband services;
4. Congress passes new laws specifically enacting broadband regulatory authority for the FCC.

Of course, today’s bland authority over broadband comes as a result of legislative compromise from the great regulatory battles over telecommunications during the Clinton Administration.  Providers argued less is more, and have grudgingly accepted limited FCC authority over some of their services, except when a challenge threatens to cost them control or a lot of money.

With a hostile reception at the Court, and the FCC’s “surrender first, fight later” legal argument, an appeal may only delay the inevitable.  The FCC does have plenty of Congressional directives to review which may permit it to enact Net Neutrality protection, but another provider lawsuit opposing Net Neutrality is inevitable.  In fact, without the passage of a clear, concise federal law providing the Commission with explicit broadband regulatory authority enacting Net Neutrality and other protections, the aptly-numbered “2″ is the likely outcome for consumers.

Thankfully, Rep. Edward Markey’s (D-MA) Internet Freedom Preservation Act would solve much of this problem, by forbidding Internet service providers from doing anything to “block, interfere with, discriminate against, impair, or degrade” access to any lawful content from any lawful application or device.

Getting it passed in a Congress mired in division is another matter.  The best way to overcome that is a strong showing of support for Markey’s legislation in calls and letters to your members of Congress, and that you are carefully watching their votes on this issue.

Under stiff opposition from the nation’s broadcasters, the Federal Communications Commission has dropped a proposal to reallocate a significant chunk of the UHF broadcast television spectrum to wireless communications companies.

As Stop the Cap! recently reported, the wireless industry sought the reallocation to broaden the bandwidth available for wireless broadband services.  The proposal would have paid broadcasters to adopt a new “cell tower”-like model of repeater antennas to provide broadcast television in more localized areas, reducing distant signal reception.  This would permit stations to be packed closer together with less chance of interference with each other.  Broadcasters reacted angrily to the proposal, suggesting it would limit reception and the launch of additional channels and communications services available from their new digital television service.  It would also cause a nightmare for consumers less than a year after the end of most analog television transmissions.

For now, the FCC will adopt a voluntary strategy allowing stations to relinquish spectrum and receive compensation.

The wireless industry was not happy with the decision, and the industry’s trade and lobbying group weighed in.

“The record overwhelmingly demonstrates there’s a need for additional spectrum for mobile broadband services,” said CTIA President and CEO Steve Largent. “We continue to believe that all spectrum should be on the table for potential reallocation, including the almost 300 MHz allocated for broadcast television use, which is spectrum most favorable to mobile broadband. We look forward to working with the Commission and the broadband team to consider mechanisms to put spectrum to its highest use.”

Robert F. McDowell

Two Republicans serving on the Federal Communications Commission told attendees at Saturday’s Tech Policy Summit that “usage-based pricing” for wireless broadband could be a solution to congested cell phone data networks.

“Pricing freedom has to be essential, because a small number of users take up the majority of bandwidth. So charging some of the heavy users for that bandwidth makes sense,” Commissioner Robert McDowell said during a panel discussion at the 2010 Consumer Electronics Show.

“I think it’s time to let that happen,” he added. “Net neutrality proponents say it should be an all-you-can-eat price. But that will lead to gridlock.”

The discussion, Inside the FCC’s Communications Agenda, focused on the FCC’s agenda in light of the Obama Administration’s new policy initiatives and the current the impact technology has on regulatory policy.

McDowell was responding to industry reports that Verizon was prepared to abandon all-you-can-eat pricing for wireless data on its forthcoming 4G LTE wireless network, even though it doesn’t actually have such a plan in place at the time the panel discussion was held.

McDowell believes that since private money is constructing the networks capable of delivering LTE service, the company has a right to charge what it pleases for service, reducing demand with a correspondingly higher price for those who use the network more than others.

Meredith Atwell Baker

Consumer advocates argue that current profits in the wireless industry provide ample resources to build and upgrade networks without overcharging consumers with expensive usage based pricing designed to make customers think twice before using the service they pay good money to receive.  Unlimited use pricing is favored by consumers as well.  Most providers abandoned “all you can eat” plans at least a year ago.  Every wireless broadband plan carries some limitations somewhere in the fine print, particularly for plans that are designed for mobile netbooks or laptops.  Virtually all of them either limit usage to 5GB per month or throttle the user who exceeds that amount down to dial-up speeds for the rest of the month.

Meredith Attwell Baker, the newest Republican FCC Commissioner, seemed slightly out of her element in discussing the issue of consumption billing.

As panel moderator Kim Hart reported for The Hill newspaper, Baker has some novel ideas for easing congestion on wireless broadband networks.

“Maybe we move back to a world where people pay for roaming,” she said.

Stop the Cap! reader John writes to let us know Teresa Dixon Murray from The Plain Dealer in Cleveland, who broke the story about Verizon’s mysterious $1.99 data usage charge is back again with an update.

In a column last summer, I chronicled my battle with Verizon after I discovered Verizon had been concocting $1.99 monthly charges for supposed Web use by my family plan numbers. Verizon’s ruse ended the month that my son’s phone was dead and locked away for weeks.

Verizon responded directly to me in a meeting with several top executives, and they promised to investigate the problems suffered by thousands of customers nationwide. The company in August also promised to change its policy of charging customers if they accidentally hit their phone’s “mobile Web” button. The new policy: To get charged, customers now supposedly have to type in a Web address.

Dixon Murray

But Murray considers Verizon’s response more clever than truthful.  And the charges just keep on coming.  So are the comments piling up below Murray’s article on The Plain Dealer website reporting more mysterious charges.

Verizon’s response to the Federal Communications Commission claimed Verizon doesn’t charge customers who accidentally hit the mobile web button on their phones, because Verizon exempts the home page those phones first reach.  Murray points out Verizon forgot to tell the Commission that’s the policy now, after the bad press, but wasn’t the policy earlier when thousands of others were being billed as well.

But no matter, because Murray suggests Verizon has found all-new ways to sock those $1.99 fees on unsuspecting consumers.

Take my case. I got a new phone the first week of November and within 24 hours after I activated it, Verizon said I had incurred a $1.99 data usage charge. Never mind that I hadn’t actually used the phone yet.

Verizon said it accidentally eliminated the mobile Web blocks I had when it activated the new phone. Puh-leez.

So Verizon re-blocked my phone lines. Yet, the company says it recorded online access on Nov. 8, Nov. 14 and Nov. 21. Chris, a supervisor from Pittsburgh, is dumbfounded. He confirmed my phones are blocked. He doesn’t know how this is happening. He’s supposed to get back to me.

While I’m waiting, I’m making a few notes, actually a lot of notes, to give to the FCC.

Amazing that these billing errors always seem to work out in Verizon’s favor.  Maybe the cat has been using the phone to browse when you weren’t looking.  Maybe Verizon can continue to reap the rewards of collecting $1.99 from subscribers who feel it’s not worth the time and effort to protest the charges with a customer service representative.

This is ripe for one of those class action lawsuits where the lawyers make the big money and you get a coupon for a free cell phone case with your next purchase at a Verizon store.  Before that happens, Murray suggests you file a complaint with the FCC yourself.  Also, please do take the time to make the call to Verizon Wireless and demand credit if you’ve been hit with this charge.  It will cost them more than $1.99 just to handle your call, and you’ll probably get something more tangible than the outcome of a class action lawsuit.  It never hurts to ask them for additional discounts or free features to keep you a satisfied customer.

File A Complaint With the Federal Communications Commission