Mark Lowenstein was a vice president of strategy at Verizon Wireless, where helped set pricing for the carrier.

The key to turning America into a haven for Internet Overcharging schemes is Re-educating customers to accept that unlimited ‘isn’t fair,’ especially in wireless mobile broadband.

Mark Lowenstein, an industry analyst and commentator, has given his prescription to Internet providers just itching to slap usage limits and overlimit fees on consumers enjoying unlimited broadband service:  you have to Re-educate consumers to accept Internet Overcharging schemes as a “positive” rather than a “punitive” development.

Fierce Wireless, where Lowenstein’s ideas were published, left out the fact he was also a senior executive at Verizon Wireless.

Despite the billions in profits earned from today’s broadband marketplace, some in the industry want to banish “unlimited” from subscribers’ lexicons.  Sure it’s true that many companies’ investments in broadband expansion and upgrades have actually declined in the last few years, right along with the costs to provide the service.  But in a world where revenues in other parts of the business are drying up, someone has to make up the difference — you.

For AT&T, the decision was easy.  If you want the raging-popular iPhone, you’re going to need a two-year service contract and a data plan limited to 2 GB of usage per month.  Exceed that at your financial peril (or use a Wi-Fi hotspot and stay off our 3G network).  Don’t like it?  Too bad for you.  Where else will you find a subsidized iPhone?

Now that AT&T has thrown down the smartphone cap gauntlet, Lowenstein is ready to offer carriers advice on how to make their abusive pricing schemes go down better with consumers.  He wants everyone to take a crash course in computer science. Grandparents everywhere will come to understand the meaning of megabyte and get into the habit of contemplating how many of those will be eaten from usage allowances everytime they use their phones.

A key part of the transition to usage-based pricing is going to be educating users and the app development community about what a “megabyte” is, as well as developing more advanced tools and the right early warning systems to ensure wireless operators don’t end up testifying before Congress for Bill Shock, Part 2. U.S. consumers are accustomed to flat-rate pricing in all other aspects of their connected life: landline phone, wireless voice (increasingly), cable, broadband and so on.

Lowenstein considers AT&T Usage Estimator to be “nifty,” missing the irony of his own declaration that AT&T’s nasty cap means “moderate usage of anything multimedia gets you to 2 GB pretty fast.”  AT&T, he notes, also helpfully notifies customers they are about to bust through AT&T’s subjective definition of an appropriate usage allowance.

He concedes there are some “gray areas” — mere minutiae in AT&T’s greater scheme for fatter profits:

• New generation multitasking smartphones can run apps and other bandwidth-consuming features in the background, sometimes simultaneously, leading to exponential increases in data usage;
• The model of the “constant connection” means apps in the background exchanging data over the mobile network 24/7 could consume plenty of data, or perhaps not.  Few know for sure;
• Consumers are forced to pay for spam, advertising, unwanted file transfers and attachments, and other data not specifically requested;
• Family plan users now need to track something else on AT&T’s website — how much data their kids are using.  Remember the wars over cell phone voice calling plan overages and text messaging?  Wait.

In Lowenstein’s world-view, this all represents opportunity.

Among his suggestions:

1. Add special ratings to apps that are highly consumptive of content.
2. Provide notification before certain content downloads or heavy usage apps.
3. Provide a view into other family plan users.
4. Provide the option for sponsored content and value exchange.

That last one may prove to be the most controversial at all.  It assumes the Kindle model — where the content producer builds in the price of network consumption.  That would make AT&T’s day — forcing content producers to cough up money to deliver content over the same network AT&T already charges customers to access.  Who would turn down being paid twice for the same thing?  Lowenstein’s model allows for advertisers to defray part of the costs:

An advertiser or sponsor could pick up some of the network cost. Or the content publisher could bundle the price of data into the app. Users are comfortable with the “choice” model in the TV world: view it for free on broadcast or Hulu, with commercials; pay a monthly fee for the DVR service and skip the ads; or pay a premium to view that content on-demand, commercial-free.

That suggestion benefits AT&T enormously, but does nothing for content producers who can’t even sustain themselves with advertising.  Lowenstein suggests they should now seek out advertisers to remunerate AT&T?  The implications of wireless carriers deciding who gets the usage-cap-exempt content deal and who doesn’t opens a whole new Pandora’s Box.  It effectively allows a handful of companies to pick the winners and losers in the mobile broadband marketplace.  After all, if AT&T offered free videos on its own video portal but didn’t exempt other websites with the same video content, guess where users will choose to watch.

Lowenstein believes taking these kinds of steps will somehow insulate the wireless industry from charges it’s barely competitive, restricts too much, and charges even more.  Yet usage limits like AT&T’s, coming even as carriers enrich themselves with gotcha add-on plans and extra fees will speak far louder than AT&T providing customers a guide on how to be abused by the wireless carrier just a little less.

I also think how usage-based pricing is handled in wireless will be closely watched in the wired broadband world. Consumers have become accustomed to flat-rate pricing for unlimited data from their broadband provider. But with the exponential growth of video consumption, and the notion of more TV and movie programming being downloaded from or streamed via the Internet, usage-based pricing for certain types of content or highly consumptive customers might be coming to a broadband neighborhood near you.

The “unlimited” ride might be coming to an end, but there’s an opportunity to implement it in a positive, rather than a punitive, manner.

In spite of Lowenstein’s love of telecom industry talking points (hardly a surprise considering he works for that industry), his notions that consumers will accept increasing broadband bills even as the level of service provided is reduced makes him not only wrong, but hopelessly out of touch.

Dick Cheney's ghost is haunting the halls at the FCC these days as the agency conducts secret, closed-door meetings with just four companies to achieve "common ground" on broadband regulation. Consumers are not invited to attend.

In 2001, Vice President Dick Cheney convened the first meeting of the always-off-the-record National Energy Policy Development Group.  Secretly inviting executives of the nation’s largest oil companies and lobbyists for natural gas and mining, Cheney hoped to find “common ground” on energy issues that he could translate into legislation on Capitol Hill.  The final report kept the names of the self-interested corporate executives off the member roster, and predictably called for legislative actions that would directly benefit those in attendance.

In June 2010, a series of meetings with FCC Chairman Julius Genachowski’s chief of staff and executives from AT&T, Verizon, Google and Skype got underway to find “common ground” on the issues of broadband regulation and Net Neutrality.  With irony, the same FCC that promised it would be “the most open and transparent ever” has barred the press and the public from participation.  No consumers were invited.  No minutes from the meetings will be disclosed.  In short, these are “closed-door” meetings.

Even more surprising, apparently the FCC forgot to invite Comcast, the cable conglomerate most directly responsible for the agency having its authority cut from beneath it in the first place.

When the Washington Post asked Eddie Lazarus, Genachowski’s chief of staff, what was on the agenda, only vague notions about “seizing the opportunity” to find common agreement on issues like Net Neutrality were disclosed.  Lazarus added the big four were also there to give input on Congress’ interest in revising the Communications Act.

That’s great news for thousands of Washington’s lobbyists who helped fashion the disastrous 1996 Communications Act that represented Christmas morning for corporate interests — more deregulation in the broadcast business which lead to massive consolidation, giveaways to the cable and telephone industry, and more handouts to wireless companies.

What was supposed to be a law to govern the public interest of the airwaves and telecommunications turned into a lobbyist feeding frenzy.  Consumers couldn’t afford the price of admission. Reopening the Communications Act means telecom companies from coast to coast can get busy working on their Christmas wish lists for the 500+ Secret Santas that live and work in the legislative branch of government these days, especially on the Republican side of the aisle.

Of course, the real outrage here is the FCC’s hope that the four companies can reach some agreement on contentious broadband issues and then the agency can do away with the entire matter of broadband regulatory reform.  Why fight the battle if you can compromise the issue away?  No matter what the four agree on, there are still many outstanding issues relating to consumer protection which cannot be negotiated by four corporate entities.

Those on both sides of the broadband regulatory issue are appalled at the secrecy.  Brett Glass, who opposes Net Neutrality and runs a WISP in Wyoming asked, “What happened to Chairman Genachowski’s promises of “the most open and transparent FCC ever?”

Indeed.

Lazarus tried his best to paper over the serious implications of holding secretive meetings in a blog post:

Senior Commission staff are making themselves available to meet with all interested parties on these issues. To the extent stakeholders discuss proposals with Commission staff regarding other approaches outside of the open proceedings at the Commission, the agency’s ex parte disclosure requirements are not applicable. But to promote transparency and keep the public informed, we will post notices of these meetings here at blog.broadband.gov. As always, our door is open to all ideas and all stakeholders.

In part, here was our response to Mr. Lazarus:

There is no transparency or openness in closed-door meetings that bar the public from participation. It’s just more of the same inside-the-beltway deal-making that will undercut consumers. Believe it or not, there is more at stake here than whatever issues Verizon, AT&T, Google, and eBay have to discuss.

And what if the four agreed on anything (improbable)? Does that mean the rest of us are expected to go along to get along?

The FCC’s door is -not- open to all ideas and stakeholders when the chairman’s chief of staff only invites four voices to his table.

There is nothing open and transparent about secret meetings peppered with excuses about why disclosure rules do not apply.

[Update 10:30am ET Wednesday — The DailyFinance quotes a government source: “We fu*ked up,” a government source familiar with the meetings told DailyFinance. “We deserve the bad press. It was a process foul at a minimum.”]

AT&T: 'If you don't do what we say, we're taking U-verse away!'

AT&T is threatening to pick up its toys and go home if the Federal Communications Commission tries to bring back its oversight powers over broadband.

CEO Randall Stephenson threw a major hissyfit in the pages of the Wall Street Journal, annoyed the company doesn’t have free rein to do whatever it wants.

“I’m a 3-2 vote away from the next guy coming in and [trying to regulate us], [and] I take it away,” Stephenson said, referring to it’s U-verse IPTV service.

AT&T has threatened to cut spending on U-verse deployment if AT&T faces regulations like Net Neutrality in its broadband business.

“If this Title 2 regulation looks imminent, we have to re-evaluate whether we put shovels in the ground,” Stephenson said, claiming the company planned to spend a “couple billion” dollars a year on the service… until now.

But AT&T has already cut spending on U-verse, slashing $2 billion in U-verse investments in 2009 alone — news trumpeted to shareholders.  Additionally, AT&T has laid off thousands of employees.  In short, the threats the company made this week have already come to pass… more than a year ago.

Many analysts claim AT&T is bluffing.  Like most landline providers, AT&T is losing traditional phone customers who are disconnecting their wired phone lines.  Its wireless division has been pummeled for inadequate 3G coverage, poor customer service, and lousy reception in many areas.  AT&T can’t afford -not- to upgrade their services if they wish to retain customers.

The cable television industry certainly hopes AT&T isn’t bluffing.  They are enjoying AT&T’s disconnect business as customers dump inadequate DSL service and overpriced phone lines for cable-provided alternatives.

As expected, the Federal Communications Commission today voted 3-2 along party lines to move forward with a Notice of Inquiry on Chairman Julius Genachowski’s proposed “third way” of “light touch” regulation to restore the agency’s authority over broadband matters.

A Democratic majority approved Genachowski’s proposal after debate among Commission members.  Democratic Commissioner Michael Copps, long critical of the Bush Administration’s efforts to deregulate broadband, was among the most forceful in calling for some oversight over the industry.  Copps contended that the Bush Administration bent over backwards for large telecommunications companies in unprecedented ways, even stripping away basic consumer protection policies relating to privacy and billing.  The result, he contends, has been a disaster for broadband consumers.

“We need to reclaim our authority,” said Copps. “I, for one, am worried about relying only on the good will of a few powerful companies to achieve this country’s broadband hopes and dreams.”

Copps dismissed rhetoric from industry groups in opposition to the proposal, claiming broadband oversight was not a government takeover or regulation of the Internet.

“We are not talking, even remotely, about regulating the Internet,” Copps said. “We are talking about meaningful oversight of the infrastructure and services that allow Americans to get to the Internet.”

Genachowski’s proposal would correct flawed policy enabled by former Bush Administration FCC Chairman Michael Powell, who supported the classification of broadband as an “information service.”  Powell claimed that classification would include ancillary authority to back FCC enforcement.

That authority would be put to the test.

In 2007, Comcast secretly imposed speed restrictions on customers using peer-to-peer software.  Using the authority Powell claimed the agency had, the FCC ordered the broadband provider to cease and desist its speed throttling. Although Comcast discontinued the practice, replacing it with a 250 GB monthly data cap, the company also sued in federal court a year later, claiming the FCC’s broadband authority was flawed.

Earlier this year, the court agreed, ruling the FCC could not extend ancillary authority under its “information service” classification of broadband.  In that one decision, the FCC lost most, if not all of its oversight powers over broadband matters.

By reclassifying broadband as a “telecommunications service,” the Commission believes it can win back its oversight powers.  The Supreme Court, in an earlier case, upheld similar authority in another matter.

But telecommunications companies have claimed the proposed reclassification would subject broadband providers to 1930’s era regulations established for telephone landline companies.  They objected strongly to today’s vote.

Tom Tauke

Tom Tauke, Verizon executive vice president for public affairs, policy and communications said, “Reclassifying high-speed broadband Internet service as a telecom service is a terrible idea.  The negative consequences for online users and the Internet ecosystem would be severe and have ramifications for decades.  It is difficult to understand why the FCC continues to consider this option.”

Tauke, along with several other phone and cable companies have asked the Commission to turn the matter over to Congress.  Tauke referenced the industry-backed effort that secured nearly 300 signatures from members of Congress opposing reclassification.

But industry critics contend turning the matter over to a polarized Congress would represent a delay at best.  At worst, it could open the door to even more industry-backed, campaign contribution-fueled deregulation.

“There is a real urgency to this because right now there are no rules of the road to protect consumers from even the most egregious discriminatory behavior by telephone and cable companies,” said Markham Erickson, executive director of the Open Internet Coalition, which includes Internet heavyweights like Google and Amazon.com.

Aparna Sridhar, Free Press’ policy counsel said, “The FCC’s Third Way proposal presents a measured response to a problem created by a Comcast lawsuit: Without restoring its authority over broadband, the Commission won’t be able to bring broadband to rural and low-income Americans or promote policies that encourage innovation, creativity, free speech and job creation online. These are goals that we can all agree on, and we support the Commission’s effort to achieve them by first establishing a sound legal foundation for its policies.”

Republican commissioners largely adopted the broadband industry position that any additional regulation would harm investment and hurt consumers.

“I recognize that industry alone will not solve every challenge and no commercial market is perfect, but I fear that a more proactive broadband regulatory approach would adversely affect consumers, competition, and investment,” said Republican Commissioner Meredith Baker, who voted against the proposal.

At least one Republican congressman went all out for the industry in a letter to Genachowski that accused him of engaging in a “blind power grab.”

“Despite overwhelming opposition within a Congress that possesses the actual authority that the FCC covets, the Commission now inexplicably appears poised on Thursday to take another misguided leap towards its investment-suffocating attempt to regulate broadband providers as common carriers,” Rep. Fred Upton (R-Michigan) wrote.

Upton counts AT&T among his top-five contributors, giving the congressman and his leadership PAC $20,000.  Upton also accepted $15,000 from the National Cable & Telecommunications Association, $10,250 from Verizon, $10,000 from Comcast, and $7,500 from Deutsche Telekom, owner of T-Mobile.

Despite all the rhetoric, at least one carrier was forced to live under most of the rules Genachowski proposes for all of America’s broadband providers, with little difficulty.  AT&T agreed to maintain a Net Neutral policy from 2006-2009 as part of its merger agreements with SBC and BellSouth.  While doing so, the company increased investments in deploying its IPTV service U-verse, which included better broadband service for U-verse customers.

Stop the Cap! will provide detailed instructions on how to submit comments to the FCC as part of today’s Notice of Inquiry soon and will hopefully have video of today’s event up shortly.

A pro-consumer group has released a new report that refutes claims from the telecommunications industry that broadband reform represents an investment killer and takeover of the Internet by the Obama Administration.

Free Press this week challenging 10 of the wildest claims in its report, “The Truth About the Third Way: Separating Fact from Fiction in the FCC Reclassification Debate.” Aparna Sridhar, Free Press’ Policy Counsel used publicly available evidence to effectively debunk the multi-million dollar lobbying campaign to stop broadband reform.

Unfortunately, more than a handful in Congress have accepted those discredited claims as fact.  Free Press hopes truth will prevail over the enormous money-fueled opposition effort, especially as the FCC begins proceedings next week on its proposed “Third Way” approach to broadband oversight. The agency is expected to issue a Notice of Inquiry and to seek public comment on the issues of broadband reform and reclassification.

A sampling from the report, which we encourage you to read:

Fiction #3: Placing broadband services back under the Commission’s explicit authority will stifle investment in broadband networks.

Fact: The FCC’s proposed policy merely preserves the status quo prior to the recent uncertainty created by the federal appeals court ruling. As a result, it should have little to no effect on company investment decisions.

Many industry representatives and investment analysts have dismissed the notion that the FCC’s Third Way will deter investment. Furthermore, history contradicts the claim that applying some of the rules contained in Title II of the Communications Act to broadband service providers (as the Commission has proposed) will adversely affect investment in the networks. Telecommunications industry investments soared during the period when carriers were subject to the full panoply of rules contained in Title II. Investments only began decreasing once the FCC began dismantling many of the pro-competition rules stemming from this part of the Communications Act.

As we've said at Stop the Cap! for two years now, providers' investments in upgrading and expanding their networks are declining, even as demand (and prices) for those services are increasing.

Fiction #4: Placing broadband services back under the FCC’s explicit authority will lead to job losses in the telecom sector.

Fact: The telecommunications sector accelerated its job-shedding following industry consolidation and FCC deregulation, a trend that continues unabated even as company revenues reach historic highs.

The notion that the FCC’s move to re-establish its authority over broadband networks will harm employment is also nothing more than unsupported rhetoric. The simple reality is this sector accelerated its job-shedding following industry consolidation and FCC deregulation. And this trend continued even as overall revenues in the sector continued to expand. Unfortunately, the underlying market economics and company statements suggest this trend will continue regardless of how the FCC acts on the regulatory authority question.

So much for the argument that regulation will cause job losses. As this plainly illustrates, even as profits fatten at AT&T, Qwest and Verizon, employment numbers are on a steep decline in today's deregulated marketplace.

Fiction # 7: The FCC’s Third Way proposal is an unprecedented power-grab which departs from Congress’s intent to leave the Internet unregulated.

Fact: The FCC’s proposal will bring the Commission’s approach to broadband networks in harmony with longstanding principles in communications policy. The law always has recognized a distinction between communications infrastructure (like broadband networks) and the content that travels over that infrastructure (such as websites on the Internet). In fact, it was the Powell FCC’s decision to abandon oversight over broadband networks that represented a radical and irresponsible shift — by treating basic connectivity services just like content, the Powell FCC undermined the Commission ability to make pro-competitive, pro-consumer policies in the broadband space. This FCC’s proposal would return to the first principles of communications policy that fostered innovation, competition and investment in the first place.

Fiction #8: The FCC’s proposal would amount to a “government takeover of the Internet.”

Fact: The FCC’s proposal would draw a line between basic two-way communications — which have always been regulated by the FCC — and Internet applications and websites, which would remain unregulated by the FCC. None of the parties in the debate before the FCC have suggested that the FCC impose any kind of content regulation on the Internet. Nor has anyone suggested that the government take over the physical infrastructure that forms the Internet. Rather, the FCC is proposing to apply some basic, light-touch rules of the road to the owners of broadband networks.

These rules will attempt to encourage private investment, promote competition, and foster innovation, economic growth, and job creation. Further, restoring its regulatory framework back in harmony with the law will insure the FCC has basic consumer protection authority.