DC Circuit Court

The U.S. Court of Appeals for the District of Columbia has ruled the Federal Communications Commission has no authority to tell the nation’s largest cable operator to stop throttling broadband traffic crossing its network.  In a widely anticipated 36-page unanimous decision, the Court found the Commission exceeded its authority when it censured Comcast in 2008 for interfering with BitTorrent traffic.

The implications of the ruling could derail Commission plans to enforce Net Neutrality and implement the wide-ranging National Broadband Plan announced in March.

Judge David Tatel, writing for the court, found the Commission erred when it relied on policy statements issued by Congress as the basis for its authority to regulate broadband service:

The teaching of Southwestern Cable, Midwest Video I, Midwest Video II, and NARUC II—that policy statements alone cannot provide the basis for the Commission’s exercise of ancillary authority—derives from the “axiomatic” principle that “administrative agencies may [act] only pursuant to authority delegated to them by Congress.” Policy statements are just that—statements of policy. They are not delegations of regulatory authority.

Tatel

The seed for today’s authority-stripping ruling was first planted by the Bush Administration, which favored telecommunications deregulation.  When the FCC was tasked with finding a way to regulate fast-growing broadband, the Republican majority on the Commission was receptive to industry arguments that over-specific broadband regulation could hamper broadband development and have unintended consequences on private investment.  Urged instead to develop a general policy towards broadband, then FCC Chairman Michael Powell presided over the development of an “Internet Policy Statement” containing four informal principles the agency would rely on when assessing broadband:

1. Consumers are entitled to access the lawful Internet content of their choice.
2. Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. Consumers are entitled to connect their choice of legal devices that do not harm the network.
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.

The Commission’s often vague Internet Policy Statement was fatally flawed from day one, according to some legal experts.  First, the Statement was never codified by the Commission’s own rulemaking procedure.  Second, the Commission framed the broadband policy as a set of “guidelines,” a term considered legally vague.  Third, the FCC relied on the concept of “ancillary” authority — borrowing regulatory authority from so-called “policy statements” coming from Congress, to claim jurisdiction.

Even though some in the industry favored total deregulation of broadband, most providers agreed to adhere to the Four Principles, until Comcast decided it had the right to throttle down the speed of customers using file swapping software.  That violated Principle #2, and the Commission censured Comcast for purposely interfering with network traffic.

Comcast sued, claiming the Commission lacked the authority to regulate its network management policies.  Comcast first denied it was throttling broadband traffic, but later admitted the company was purposely governing the speed available to such software applications to protect their other customers.  Comcast argued that certain file swapping software does in fact harm its network (Principle #3) because the software utilizes as much broadband capacity it can find to move files back and forth.  Since Comcast customers in a neighborhood share a limited amount of bandwidth, a small number of customers ‘maxing out their connections’ running such software could potentially slow down everyone  else in the neighborhood.

Ultimately, today’s court decision agreed with Comcast — the Federal Communications Commission lacks authority over broadband.

It also did the industry one better by warning any regulatory authority the Commission believes it has over broadband better be backed up with specific authority granted by Congress, or the court may find those policies vulnerable as well.

In short, the court just fired a warning shot suggesting the FCC has no authority to enact Net Neutrality protections or the National Broadband Plan, at least not under Kevin Martin’s flawed approach.

The ruling comes as no surprise.  The attorney for the FCC found a hostile reception from the court during oral arguments back in January.  Where was the specific authority, granted by Congress, to oversee broadband policy they asked?  Why is the Commission relying on general principles to govern broadband?  By the end of the session, the FCC’s lead attorney was foreshadowing the imminent loss of his case by asking the court to make the decision against the FCC a teachable moment — giving advice in the ruling as to how to write policies that -will- survive a court test.  The court wasted no time telling the attorney that wasn’t their job.

Public interest groups and others advocating Net Neutrality and the National Broadband Plan issued statements warning about the implications of an industry freed from regulatory oversight.

S. Derek Turner, research director for Free Press:

“The decision has forced the FCC into an existential crisis, leaving the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan. As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. This cannot be an acceptable outcome for the American public and requires immediate FCC action to re-establish legal authority.

“This crisis is not a result of a weak congressional law, but a direct consequence of the previous two Commissions’ misguided and overzealous attempts to completely deregulate America’s communications networks. Past FCC actions created a huge loophole in the law that leaves the agency unable to protect consumer privacy or promote universal broadband access.

“The FCC must have the authority to carry out its consumer protection and public interest mission in the 21st-century broadband marketplace. The current Commission did not create this existential crisis, but it now has no choice but to face these tough jurisdictional questions head on, and do what is necessary to protect consumers and promote competition.”

Ryan Singel – Wired Magazine:

A broadband company could, for instance, ink a deal with Microsoft to transfer all attempts to reach Google.com to Bing.com. The only recourse a user would have, under the ruling, would be to switch to a different provider — assuming, of course, they had an alternative to switch to.

Companies can also now prohibit you from using a wireless router you bought at the store, forcing you to use one they rent out — just as they do with cable boxes. They could also decide to charge you a fee every time you upgrade your computer, or even block you from using certain models, just as the nation’s mobile phone carriers do today.

While this might seem like a win for the nation’s broadband and wireless companies, the ruling could be so strong that it boomerangs on them. For instance, if the FCC is left without the power to implement key portions of the National Broadband Plan — a so-far popular idea — then Congress or the FCC may have to find a way to restore power to the commission. That could leave the FCC stronger than it was before the ruling.

Gigi Sohn, Public Knowledge:

“Today’s Appeals Court decision means there are no protections in the law for consumers’ broadband services. Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others. In addition, as of now, the Federal Communications Commission’s (FCC) ambitious National Broadband Plan to help boost the economy is in legal limbo. The ability of the FCC to support broadband through universal service is in jeopardy, as is the agency’s ability to protect consumer privacy, ensure access to broadband-based emergency communications or promote access to broadband for the disabled. In our view, the FCC needs to move quickly and decisively to make sure that consumers are not left at the mercy of telephone and cable companies.

“If it chooses, the Commission can continue to roll the dice and let the courts decide each time it wants to try to put some consumer protections on a broadband service. The court decision left open that option.

“We have a different idea. The FCC should immediately start a proceeding bringing Internet access service back under some common carrier regulation similar to that used for decades. Some parts of the Communications Act, which prohibit unjust and unreasonable discrimination, could be applied here. The Commission would not have to impose a heavy regulatory burden on the telephone and cable companies, yet consumers could once again have the benefit of legal protections and the Broadband Plan could go forward. The American public deserves no less.

“We need to emphasize that no one is talking about regulating ‘the Internet.’ No one is talking about regulating search engines or Web sites. We are talking about re-applying policies to a telecommunications service that the FCC incorrectly abandoned. That is the most simple solution and it’s the correct one.”

The FCC, despite the decisive loss in court, claims it will carry on.

“Today’s decision invalidated the prior commission’s approach, but in no way disagreed with the importance of preserving a free and open Internet,” FCC spokeswoman Jen Howard said in a statement.

Nick Summers, writing for Newsweek’s ‘Techtonic Shifts’ blog, believes FCC Chairman Julius Genachowski is likely to aggressively respond to today’s court decision by employing the “nuclear option,” reclassifying broadband Internet as a communication service just like the nation’s phone system, bringing it fully under FCC regulation.

Would Genachowski go that far, undoing virtually all of the Bush-era FCC’s policies? Yes. In September, he gave a major address about net neutrality without ever actually uttering the phrase. But he concluded with these strong words:

“We are here because 40 years ago, a bunch of researchers in a lab changed the way computers interact and, as a result, changed the world. We are here because those Internet pioneers had unique insights about the power of open networks to transform lives for the better, and they did something about it. Our work now is to preserve the brilliance of what they contributed to our country and the world. It’s to make sure that, in the 21st century, the garage, the basement, and the dorm room remain places where innovators can not only dream but bring their dreams to life. And no one should be neutral about that.”

The importance that Genachowski et al. place on net neutrality has never remotely been in doubt. In February 2009, months before he was confirmed as FCC chairman, at a private dinner in Manhattan, Genachowski spoke about the Internet’s role in the election of President Obama and in America’s future. He was circumspect about details, but Genachowski spoke unreservedly about the need for certain core protections if the country was to remain at the fore of the Internet revolution. It’s just that important.

[flv]http://www.phillipdampier.com/video/CNBC FCC Loses Comcast Case 4-6-10.flv[/flv]

CNBC reports the FCC’s loss in court could open the door to metered broadband service in the United States.  (2 minutes)

[Article Correction 4/15/2010: The original piece laid blame for the classification of broadband as an “information service” on former FCC Chairman Kevin Martin.  In fact, the classification was made by former FCC Chairman Michael Powell, who served during the first term of the Bush Administration.  We regret the error.]

Comcast's usage meter is now available in 25 states

Comcast customers in at least 25 states have been notified that Comcast’s new usage measurement meter is now up and running.  Comcast introduced a 250 GB monthly usage limit in August 2008 after the Federal Communications Commission stopped the company from throttling usage-intensive file-trading applications.  Comcast has enforced the cap among those customers who regularly exceed it by wide margins, usually warning customers by phone or mail that they must reduce usage or face account suspension.  The usage meter application allows the company to direct customers to the self-measurement tool the company hopes will reduce the need for warnings.

Customers in Alabama, Arkansas, Connecticut, Colorado, Delaware, Florida, Georgia, Kansas, Maine, Maryland, Minnesota, Missouri, Nevada, New Hampshire, New York, Oregon, Pennsylvania, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, Washington, D.C., West Virginia, and Wisconsin should have already or will receive e-mail from the company officially notifying them about the launch of the usage meter.

Since the meter was introduced, broadband usage and pricing has increased for many customers, but the usage cap has not.  While generous by current standards, an inflexible usage limit will increasingly trap customers who use Comcast broadband service for high quality video streaming, file backups, or file trading activities which can consume considerable bandwidth.

Informally, Comcast has allowed some residential customers to purchase second accounts if they intend to blow past their usage allowance, because the company currently offers no official provisions for those who exceed the limit.

Today marks the first anniversary of news that Time Warner Cable planned to expand an Internet Overcharging scheme being tested in one Texas city to four additional cities within its service area.

Residents of Rochester, New York, the Triad Region surrounding Greensboro, North Carolina, as well as Austin and San Antonio, Texas first learned of the planned expansion of so-called “metered broadband” from a Business Week article dated March 31st, which has since accumulated more than 450 comments to date:

Web users, the meter is running. In a strategy that’s likely to rankle consumers but be copied by competitors, Time Warner Cable is pressing ahead with a plan to charge Internet customers based on how much Web data they consume. Starting next month, the company will introduce tiered pricing in several markets.

In April, Time Warner Cable will begin collecting information on its customers’ Internet use in the Texas cities of Austin and San Antonio and in Rochester, N.Y. Consumption billing will begin in those cities later this summer. In Greensboro, N.C., the billing changes will begin sooner. Spun off from Time Warner this month, Time Warner Cable had been testing a plan to meter Internet usage in Beaumont, Tex., since last year.

Proposed pricing models created by Time Warner Cable would have tripled broadband bills to an unprecedented $150 a month for consumers seeking the same level of broadband service they enjoyed a month earlier.  For a cable industry that was used to pushing through rate increases well above the annual rate of inflation, such an enormous rate increase was unprecedented, even for them.

For consumers willing to ration their broadband use, the news was slightly better — you’d still pay more for less service, and be exposed to overlimit fees and penalties should you exceed your monthly allowance, which was as low as a 1 GB per month for one proposed plan.

While residents of Beaumont, Texas had to endure these prices for several months prior to the announced expansion of experimental Overcharging, once news hit tech-savvy cities in Texas, New York, and North Carolina, an all-out consumer rebellion began.  Residents in Austin met with city officials to discuss alternatives to a cable company that threatened Austin’s high tech status.  For residents in Rochester, already coping with a 5 GB usage allowance for Frontier Communication’s DSL service, it was a clear-cut case of monopolistic greed.  In North Carolina, working to transition its way towards a digital economic future, an Internet rationing plan would hurt the economy of the entire Triad region.  San Antonio residents were equally unimpressed with the cable operator as well, demanding alternative providers.

Former Congressman Eric Massa (D-NY)

Consumers banded together on Stop the Cap! and other consumer-oriented websites to coordinate the pushback effort.  Protests were held, the media was engaged, and at least in New York, the politicians were not going to sit back in Time Warner Cable’s favor.  Former Rep. Eric Massa expressed outrage at the company for its new pricing plan and Senator Chuck Schumer personally called Time Warner Cable CEO Glenn Britt.

A few lapdogs in the trade press and “dollar a holler” astroturf groups praised Time Warner Cable’s price gouging plans.  One even went as far as to suggest Time Warner Cable “took one for the team” — referring to a cable industry just waiting to test some Internet Overcharging of their own.

Time Warner Cable dispatched some of their social media minions to try and explain away the outrageous price increases, offering to “listen” to consumers with suggestions about how to “improve the plan.”  One, like TWCAlex offered “proof” consumers wanted this kind of pricing.  The disingenuousness of the effort rivaled Lord Haw Haw’s Germany Calling propaganda broadcasts on the Reichssender Hamburg.  Company officials ignored the overwhelming consensus that consumers didn’t want metered or capped service and then weeks later those who did submit comments were notified they were “deleted without being read.”

Meanwhile, Rep. Massa’s office began drafting legislation to ban the unprecedented pricing schemes, culminating in a bill introduced in 2009 to ban unjustified usage caps and metered billing.

On April 9th, Landel Hobbs, Chief Operating Officer of Time Warner Cable, issued a recitation of the reasons why Time Warner Cable felt justified in exposing customers to up to 150 percent rate hikes — reasons we’ve managed to debunk over the past year’s coverage:

With the ever-increasing flood of content on the Internet, bandwidth consumption is growing exponentially. That’s a good thing; however, there are costs associated with this increased Internet usage. Here at Time Warner Cable, consumption among our high-speed Internet subscribers is increasing by about 40% a year. As a facilities based provider, we’ve built a network that must be maintained and upgraded. We have increasing variable costs and we have to continue to invest in the network itself.

As we’ve since proven, Hobbs statements to the public obscure the facts in his own company’s financial reports which are remarkably consistent quarter after quarter: revenues for broadband service are increasing while the costs to provide it are falling.  In fact, broadband is rapidly becoming the most important element of the cable industry’s quest for fat profits.  Time Warner Cable, as well as others, have plenty of financial resources from the billions in profits they earn from broadband every year to provide cost-effective upgrades that benefit them as well as consumers at today’s flat rate prices.

Just a few weeks ago, Hobbs told investors consumers are so devoted to their broadband service, the company could raise broadband prices anytime they like.  Funny how “increasing costs” never came into the discussion there.

This is a common problem that all network providers are experiencing and must address. Several other providers have instituted consumption based billing, including all major network providers in Canada and others in the U.K., New Zealand and elsewhere. In the U.S., AT&T has begun two consumption based billing trials and other providers including Comcast, Charter and Cox are using varying methods of monitoring and managing bandwidth consumption.

As Stop the Cap! has illustrated repeatedly, such consumption billing schemes are despised by consumers -and- most countries see them as hampering their digital economy.  Australia and New Zealand have government initiatives to improve broadband service to the point where consumption billing and usage caps are a distant memory.  Canada’s usage based billing schemes come from market concentration, particularly from Bell which is by far the largest wholesale supplier of bandwidth in the country.  Their quest for profits, along with a compliant regulatory body (the CRTC) has made such ripoff pricing commonplace.  The result on Canada’s broadband rankings are clear as the country continues to fall further behind other OECD nations.  Canadians do not want such pricing, but when a duopoly is allowed to exist unfettered by appropriate oversight, the end result is always the same – higher prices for poorer service.  In the United Kingdom, several flat rate plans are available, with more on the way as the UK embarks on its own Digital Economy plan.

There are other reasons why such consumption billing schemes are in place in other countries – namely insufficient international capacity to move traffic back and forth outside of the region.  That too is being addressed.

That other cable operators are overcharging consumers or limiting their usage is hardly a surprise considering insufficient competition in the marketplace makes that possible.  However, Comcast’s 250 GB limit is far more generous than anything Time Warner Cable proposed, Cox rarely enforces their limits, and Charter recently announced it had abandoned theirs.

For good reason. Internet demand is rising at a rate that could outpace capacity within a few years. According to industry analysts, the infrastructure may not be able to accommodate the explosion of online content by 2012. This could result in Internet brownouts. It will take a lot of money to fix the problem. Rather than raising prices on all customers or limiting usage, we think the fairest approach is to move to a tiered model in which users pay more if they use more.

Hobbs’ reliance on the “exaflood” or the “zettabyte” theory of Internet brownouts comes courtesy of the prostituting, industry-backed Discovery Institute — the people who will cough up bought and paid for “research studies” that say anything the buyer wants them to say and Cisco, which makes a handsome buck off selling broadband network equipment to providers they panic with stories of Internet data tsunamis and brownouts.

Hobbs

Two weeks after the Business Week article, Senator Schumer flew to Rochester and joined a few of our local Stop the Cap! members and myself to announce the end of the nightmare — no more Internet Overcharging consumers in any of the three states. Even Beaumont was soon freed from the ripoff pricing experiment.

But Time Warner Cable promised that one day, they could be back with the same schemes, after “educating their customers.”  Stop the Cap! has spent the last year assembling an extensive record of just how unjustified these pricing schemes really are, and we’ve been educating consumers about how an duopolistic broadband industry is seeking to monetize and control as many aspects of America’s online experience as possible.

We’ve exposed dozens of astroturf and other industry-backed groups trying to peddle the broadband industry agenda, often trying to hide who is paying the bills.  Whether it’s scare stories about broadband brownouts, fear that oversight and regulation will drive away investment and reduce service, or the need to stop Net Neutrality — it’s all designed to protect provider profits, not help consumers.

There is nothing fair about Internet Overcharging schemes.  There has never been a true consumption billing scheme that charged consumers nothing if they didn’t use the service, and the prices being charged for consumption above one’s allowance are often several thousand percent above actual cost.  Indeed the CEO of Crown Fibre Holdings CEO Graham Mitchell, admitted the truth about such pricing schemes when he told Techday that where ISP’s engage in such pricing schemes, they don’t make their money in providing access to broadband; they make it out of data caps.

We have no illusion providers won’t be back for a second bite at your wallets, which is why the education effort continues.  Over the last year, we’ve expanded our coverage to promote better broadband, and to expose bad actors among the broadband cable, telephone, wireless, and satellite industry.  We’ll continue to expose lobbying efforts to legislate away oversight, consumer protection, and limit potential competition.  Stop the Cap! also continues to fight for improved rural broadband that moves beyond today’s satellite fraudband that delivers woefully slow, heavily limited and expensive service.  We’ll also coordinate efforts to push back whenever Internet Overcharging schemes appear on the horizon, and we won’t let go until such language is banished from customer agreements and Acceptable Use Policies, whether they are formally enforced or not.

One year later, America’s broadband users are safer from such schemes, but not yet safe.  Thanks to all of our readers for staying engaged.

In what some believe may be the beginning of the end of the U.S. Postal Service, the plan to eliminate Saturday mail delivery this week was formally introduced to the Postal Regulatory Commission, an important step on the journey to sever home delivery to homes and businesses over the weekend.

In what the Commission called one of the most significant changes the Postal Service has ever presented to them for review, the proposal to sack Saturday mail seeks to take a bite out of a deficit the post office claims will reach $238 billion in ten years.

As more Americans move to broadband for online banking and bill paying, e-mail, and online commerce, mail volume continues to decline.  The recession isn’t helping either, as increasing postal rates challenge the torrent of profitable junk mail that reaches every American home.

But one decidedly-digital company is cringing at the thought of losing Saturday mail delivery — Netflix, the DVD-rent-by-mail firm whose sea of red envelopes moving to and from post offices around the country is a bright spot for a postal service under financial siege.  This single company expects to spend $600 million in postage this year alone.

The prospect of Netflix customers facing several days in a row with nothing new to watch horrifies those who’ve become accustomed to Saturday DVD delivery.

Netflix has tried to move towards video streaming movies and television shows over broadband connections.  Last week Netflix began offering Nintendo Wii owners the opportunity to stream the company’s on-demand library directly through the video game console, joining the PS3.

<

p style=”text-align: center;”>

But Slate reports on-demand streaming at the prices studios are demanding means it will be a very long time before Netflix’s 100,000 title library is available for instant viewing:

While instantly streamed movies obviously eliminate postage costs, they are not a cost-free proposition for Netflix. Analysts suggest that the streaming technology itself is very cheap—it costs roughly five cents to stream 90 minutes of content—but the licensing fees can be exorbitant. Netflix won’t release the data on how much it pays for online licensing, but can apparently be quite expensive. Dan Rayburn, an analyst with Streaming Media, has said that he’s seen some streaming movies that cost as much as $4 per play.

The other potential skunk at the garden party is your Internet Service Provider, should they implement Internet Overcharging schemes like usage caps or usage-based billing.  That five cent price tag for 90 minutes of content Netflix pays would be considerably higher from ISPs seeking to charge thousands of percent markup for bandwidth.

America’s social commentators are concerned five day delivery is the beginning of the end for an institution that reaches every American.

CNN contributor Bob Greene notes no business has ever gotten ahead in the long term by reducing service to customers even as they continue to increase prices:

If mail delivery goes from six days to five, more and more Americans may decide they just don’t need it. People have available to them, as none of us needs to be reminded, computers with e-mail capability. You can correspond with friends and family and business associates; you can pay bills; you can send greetings.

Using the U.S. mail already means accepting that letters will be held up for a day between Fridays and Mondays. Elimination of Saturday mail would extend the bottleneck. And this is a country that increasingly demands speed; you’d think that someone, if only in an effort not to fall further behind, would be suggesting a seventh day of delivery be added.

Last year, the volume of U.S. mail fell by 26 billion pieces — from 203 billion to 177 billion.

The Postal Service, in gambling that doing away with a day of delivery will help heal its financial wounds, may be risking a lot.

There’s not much of a track record in American business for cutting back on services and then seeing the long-term bottom line grow. Companies that boldly announce they are going to cut their way to prosperity often cut their way to death.

If delivery is reduced to five days, and the number of letters mailed each year plunges further, the Postal Service could find itself in the position of having to eliminate even more services. Five days could conceivably go to four, or three; and if that didn’t stop the plummet in available funds, what would be the next step?

The letter carriers’ union isn’t happy about it either.  They’re convinced the post office’s plan will never survive Congressional oversight, and that in the end Saturday delivery will survive.

“We don’t see this thing — despite the hoopla that the postal service management has come up with — being approved by Congress,” said Drew Von Bergen, chief spokesman for the union that represents about 200,000 mail carriers, and 100,000 retirees.

Von Bergen told a reporter for KCRG-TV the mail carriers union sees the proposal as an overreaction to the dramatic decline in mail volumes that has resulted from a deep recession. If the postal service cuts Saturday delivery now, it will accelerate the demise of the postal service as other delivery services take up the slack, and Americans become disaffected with mail delays.

“It’s not just delivery,” Von Bergen said. “It’s delivery and collection. You’re talking about a two-day stoppage of mail movement in this country: Prescriptions, DVDs, packages people ordered by mail.”

On holiday weekends, the mail would stop for three days, Von Bergen added.

The unions are convinced the source of the nightmarish budget deficits comes from one thing: health care funding for retirees.  The recent health care reform legislation passed by President Obama does almost nothing to address the relentless immediate increases in health care costs which the Post Office must pre-fund in a type of escrow account.  If the government eliminated the pre-funding requirement, the U.S. Post Office would have finished 2009 with a cumulative surplus of $3.7 billion over its last three fiscal years according to American Postal Workers Union President William Burrus.

[flv width=”480″ height=”380″]http://www.phillipdampier.com/video/KESQ Palm Springs Post Office Moves Closer to Ending Saturday Delivery 3-29-10.flv[/flv]

KESQ-TV in Palm Springs, California pondered the loss of Saturday mail delivery with area residents and mail carriers in this report that aired Monday evening.  (3 minutes)

Martin

The former chairman of the Federal Communications Commission under President George W. Bush says the FCC doesn’t have as much authority over broadband as it might think, and cannot tell service providers not to implement policies designed to limit broadband consumption.

Kevin Martin, speaking last week in Seattle at the Mobile Broadband Breakfast told attendees he doubts the Commission has the authority under current law to implement the full scope of the National Broadband Plan, and probably cannot control what providers do with the marketing and pricing of their broadband services.

“The further it is pushed out the more difficult it is for the commission to address it,” Martin said. “The FCC’s core regulatory authority is on wireless and carriers, so its direct authority is less and less the further out you go.”

Martin is especially skeptical about controlling classic Internet Overcharging schemes like usage caps and usage-based billing.

Broadcast Engineering notes Martin doesn’t believe the Commission has any authority to stop the recent efforts of carriers and ISPs to introduce metered wired broadband, except in instances where price discrimination occurs.

Of course, Congress can grant additional authority to the Commission at any time, and with decisions looming in several broadband-related legal challenges in federal court, what authority the FCC believes it has today may not actually exist should court rulings find otherwise.  That could result in explicit increased authority granted by Congress.

Martin believes broadband improvement will ultimately come from increased deployment of fiber optics, which can also improve wireless network backhaul connections used in mobile broadband.