Thune

The House and Senate today held back-to-back hearings on the issue of adopting a Republican alternative to the president’s idea of Net Neutrality.

After the president directly addressed his support of strong Net Neutrality protections, FCC chairman Thomas Wheeler indicated he intended to act on the issue next month. Now many Republican legislators have changed their original view that Net Neutrality was “a solution in search of a problem” into a high priority agenda item demanding immediate attention, hoping to cut off Wheeler’s regulatory solution with new legislation.

That came in the form of a proposed new bill to define the principles of Net Neutrality from Sen. John Thune (R-S.D.) and Rep. Fred Upton (R-Mich.).

“By turning the FCC away from a heavy-handed and messy approach to regulating the Internet, this draft protects both consumers who rely on Internet services and innovators who create jobs,” Thune wrote in a statement.

Both hearings were stacked against reclassification of broadband under Title II to assure strong Net Neutrality principles, including three witnesses formerly with the FCC that have moved into industry advocacy jobs.

(Image courtesy: Steve Rhodes)

Former FCC chairman Michael Powell is today America’s top cable lobbyist. Meredith Baker quickly left the FCC in 2011 after voting in favor of the Comcast-NBC merger deal, taking a lucrative position at Comcast before moving on to become the country’s top wireless industry lobbyist. Robert McDowell left the FCC in 2013 to take a job at the same law firm hired by Comcast to successfully challenge the FCC’s authority to fine the cable company over its past speed throttling practices. Today, McDowell’s employer also represents the interests of AT&T and Verizon.

Other witnesses testifying included Dr. Nicol Turner-Lee from the Multicultural, Media, Telecom & Internet Council, which claims to be a civil rights organization but in fact receives the bulk of its funding from corporate interests, including large telecom companies. It often advocates for the corporate agendas of its sponsors, including opposition to Title II reclassification and past support for the failed AT&T-T Mobile merger deal.

Tom Simmons, senior vice president of public policy for small cable operator Midcontinent Communications also appeared, opposing strong Net Neutrality policies. Simmons said that once the company explained Title II reclassification and how it would increase customers’ cable bills, support for Net Neutrality diminished.

Just two witnesses testified on behalf of consumer interests. Gene Kimmelman, president of Public Knowledge strongly advocated for Title II reclassification of broadband and Paul Misener, vice president of Global Public Policy for Amazon.com strongly opposed Internet fast lanes and other traffic manipulation practices.

The New York Times today reported that the Republicans may have an increasingly uphill fight with some of their own traditional supporters to push through legislation Internet activists claim is riddled with company-friendly loopholes.

“The libertarian conservative base is pretty astute at recognizing crony capitalism and understand how campaign finance and corporate influence affects policy,” said David Segal, executive director of Demand Progress, a Net Neutrality advocacy group. “And this is a pretty transparent moment for all that.”

D.C.’s perpetually revolving door keeps on spinning.

A former Republican member of the Federal Communications Commission is calling on the federal agency to stop consideration of strong Net Neutrality rules and defer to a Republican drafted bill that would dramatically weaken Open Internet protections.

Robert McDowell said the FCC should defer to Congress and avoid adopting a “Depression era law designed to regulate phone monopolies” as the foundation for Net Neutrality enforcement.

“While Republicans and Democrats try to work out a deal, FCC Chairman Tom Wheeler should hit the pause button on next month’s vote and let the elected representatives of the American people try to find common ground,” he wrote in a Wall Street Journal op-ed Monday. “At the end of this constitutional process, all sides may be able to claim victory. It’s time to consider a different path — one that leads through Congress — to end the Net Neutrality fiasco. Although the legislative process can be perilous, Congress can provide all sides with a way out.”

McDowell’s comments fall tightly in line with the fierce lobbying campaign against Net Neutrality being run by companies like Comcast and AT&T.

That may not be surprising considering McDowell’s trip through the notorious “D.C. Revolving Door,” where ex-government employees go to work on behalf of the industries they formerly regulated.

McDowell

After retiring from the FCC, McDowell landed a position with the law firm Wiley Rein LLP, a corporate favorite for litigation against government oversight and regulatory public policies. It was Wiley Rein LLP that represented Comcast in 2010, successfully arguing the FCC had no right to oversee Comcast’s Internet service under the Section 706 “information service” framework still at issue today.

The D.C. Circuit unanimously ruled, “the Commission failed to tie its assertion of ancillary authority over Comcast’s Internet service to any ‘statutorily mandated responsibility,'” a long-winded way to say that the FCC’s reliance on its limited authority to oversee broadband as an “information service” in reality gave the FCC almost no right of oversight at all.

Ironically, that case is what prompted Internet activists to demand the FCC reclassify broadband as a “telecommunications service” under Title II to give the FCC the authority it needs to oversee broadband providers, exactly what McDowell does not want.

The ruling (emphasis ours):

Turning to ancillary authority, the Court rejected each of the statutory provisions on which the Commission relied.  Relying on a number of Supreme Court precedents, the Court held that “policy statements alone cannot provide the basis for the Commission’s exercise of ancillary authority,” id. at 22, and thus rejected the Commission’s reliance on Section 230(b) and Section 1 of the Communications Act and Section 706 of the Telecommunications Act of 1996.  The Court explained that allowing congressional policy to create “statutorily mandated responsibilities” sufficient to support the exercise of ancillary authority “would virtually free the Commission from its congressional tether.” Id. at 23.  The Court then rejected the remaining statutory provisions that “at least arguably delegate regulatory authority to the Commission,” id. at 16, on a variety of substantive and procedural grounds, including waiver.

Few media sources have bothered to disclose that McDowell’s new employer counts among its current clients two of the biggest Net Neutrality foes in the industry: AT&T and Verizon.

No approval for the Comcast-Time Warner Cable merger proposal in New York for yet another month as the state Public Service Commission has once again delayed making a final decision until the end of February.

“Pursuant to a request from Department of Public Service staff in the above-referenced matter, Comcast Corporation and Time Warner Cable Inc. agree to action by the Public Service Commission on the Joint Petition at a Commission Session held on or by February 26, 2015, with a final order being issued no later than March 3, 2015,” is the word from Comcast and Time Warner Cable’s law firm.

The National Cable & Telecommunications Association (NCTA), the nation’s largest cable lobbying group, has outdone itself with a brand new fact-challenged video truth-seekers will quickly discover is little more than industry propaganda.

“For nearly 20 years, cable has been building Internet networks that are empowering everyone from innovators and entrepreneurs to kids in the garage,” says the NCTA in its introduction of its new video “The Infinite Internet.” “The Internet propels business, education, entertainment – whatever we want. It’s a platform of possibilities and the fast growing technology in history. Cable is proud of the part we’ve played in advancing America’s future and we’ll continue to make it faster and more accessible.”

Except many NCTA member companies want to introduce usage caps and consumption billing that limit those possibilities on an already absurdly profitable service. The same broadband duopoly of cable and phone companies also holds America’s broadband rankings back, and has demonstrated its real priority is to charge more money for less service.

We’ve reviewed the video and found credibility problems with almost every claim:

Claim: “America’s ISPs have invested trillions of dollars and laid 400,000 miles of fiber optics.”

Our finding: FIB Even industry mouthpieces like the Progressive Policy Institute and NCTA members themselves have a problem with “trillions.” The chief executives of AT&T, Bright House Networks, Cablevision, CenturyLink, Charter, Comcast, Cox, Frontier, Suddenlink, Time Warner Cable, 15 other companies, and industry groups such as the National Cable & Telecommunications Association itself, the Telecommunications Industry Association, and the CTIA Wireless Association claimed in the spring of 2014 that the entire telecommunications industry (not cable alone) spent a combined $1.2 trillion on communications infrastructure. A considerable percentage of that investment was to build out cellular networks, first for mobile phone calls and only later for wireless data. The cable industry spent far less than $1 trillion on its own infrastructure and at the time of its most rapid growth, it was intended primarily to deliver cable television, not broadband.

Stop the Cap! also found the NCTA cheating in its claims of increasing investment in broadband. The trade group was citing cumulative spending, not actual year-to-year spending. A careful review shows broadband investments are generally flat or in decline and are nowhere near comparable to the investments the industry made in the late 1990s.

Although it may be true the cable industry has deployed 400,000 miles of fiber optics, the overwhelming majority of cable customers cannot directly access any of it. Virtually all the cable industry’s fiber is deployed between the company’s headquarters and individual communities where it is connected to the same coaxial cable platform that has been around since the 1960s. Most of the rest is laid for commercial purposes, notably providing backhaul connectivity for cell towers. Time Warner Cable alone deployed fiber to its 10,000th cell tower back in 2013. It’s a lucrative business, earning that cable company more than $61 million a quarter.

BroadbandNow found no cable company appearing on the list of top fiber broadband providers. In fact, as of 2012 only 23% of Americans have access to fiber broadband ranking the United States 14th among western countries in fiber optic penetration according to the OECD.

Claim: “High speed connections reach nearly every home with blazing fast speeds that power our lives.”

Our finding: HIGHLY MISLEADING The NCTA fails to define its terms here. What exactly constitutes a “high-speed connection.” The FCC currently defines broadband as providing speeds of 4Mbps or better. Is that “blazing fast?” The FCC is currently considering redefining broadband to mean speeds of at least 25Mbps, well below many cable company entry-level broadband tiers. The NCTA also likes to claim that 99% of households have access to high-speed Internet, but they include wireless technology at any speed in those figures. If you can get one bar from AT&T’s 3G wireless Internet network, you’ve got high-speed broadband in their eyes.

In fact, when it comes to stingy coverage areas, cable is notoriously not available outside of the biggest cities and suburbs, as the government’s own National Broadband Map depicts:

Map showing cable companies offering at least DOCSIS 3.0 cable broadband service.

Claim: “ISP’s want access for everyone.”

Our finding: TRUE, WITH MISSING FINE PRINT What company would not want to offer its products and services to everyone. The real question is whether they plan on doing that or simply wishing they had. The cable industry has no intention of implementing sweeping changes to the Return On Investment (ROI) formula that determines whether your home gets access to cable or not. Some companies like Time Warner Cable and Frontier Communications are expanding their cable and DSL networks, but only when the government steps in with broadband deployment grant funding.

Assuming service is available, the next hurdle is cost. BBC News reported in 2013 home broadband in the U.S. costs far more than elsewhere. At high speeds, it costs nearly three times as much as in the UK and France, and more than five times as much as in South Korea. Today it costs even more when you count the growing number of providers charging modem rental fees as high as $10 a month and often cap usage or force customers into usage-based billing schemes.

Claim: “With over 300,000 public Wi-Fi hotspots, the Internet of Things is emerging.”

Cox Cable sells their customers on accessing over 300,000 Wi-Fi hotspots, with a prominent asterisk. Access is only available for free if you are a current cable broadband customer.

Our finding: MISLEADING The NCTA is referring to collaboration between Bright House Networks, Cox Communications, Optimum, Time Warner Cable and XFINITY that allow each other’s high-speed Internet customers to use to each company’s Wi-Fi hotspots. They key word is “customers.” The hotspots may be technically reachable by the public, but unless you are a current cable broadband subscriber, using them typically requires the purchase of a daily use pass.

Claim: “Cable will continue to invest, building this platform of possibilities, if we preserve the freedom that created the Internet.”

Our finding: EMPTY CLAIMS The NCTA’s commitment that the cable industry will continue to invest is fulfilled if one cable operator spends just $1 on their network infrastructure. Notice the NCTA does not commit its members to stopping the ongoing decline in broadband investment, much less move to increase it. It also has no explanation for the annual rate increases and new fees and surcharges customers are paying, as the gap between broadband pricing abroad and at home grows even larger. 

“Preserve the freedom” is code language for maintaining the deregulation that the industry has used to its advantage to raise prices in a broadband market most Americans will find is either a monopoly or duopoly. Although the NCTA implies it, the cable industry did not create the Internet. It was a government project (gasp!) initially developed through contracts with the Department of Defense and soon broadened to include educational institutions. The first significant commercial ISPs emerged only in the late 1980s. Cable industry broadband finally showed up around a decade after that. The industry’s claims are akin to boasting Lewis and Clark discovered Kansas City… in 1966.

If the cable industry gets some oversight of its broadband service and enforced protection of Net Neutrality, does that mean investment will flee? First, providers are already spending a lower percentage of capital on broadband expansion in the current deregulatory environment. Second, as broadband becomes the cable industry’s top earner, it provides an endless supply of revenue without the headaches of negotiating programming contracts, dealing with cable television network rate increases, and the growing phenomenon of cord-cutting. In other words, without significant new competition, it remains a license to print money.

[flv]http://www.phillipdampier.com/video/NCTA The Infinite Internet 1-20-15.mp4[/flv]

The NCTA is trying to make hay with its new video, “The Infinite Internet” which purports to share how Big Cable’s vision of the Internet is making new things possible. They don’t mention many of their member companies want to place a usage cap on that innovation, even as they continue to raise prices way out of proportion of the cost of delivering the service. It’s classic cable industry propaganda. (1:08)