[flv width=”480″ height=”380″]http://www.phillipdampier.com/video/PBS Bill Moyers Michael Copps Interview About Net Neutrality 4-23-10.flv[/flv]

Last Friday, Federal Communications Commissioner Michael Copps appeared on PBS’ Bill Moyers’ Journal.  He discussed the current state of America’s broadband industry, the implications of not having Net Neutrality protections, and how the Internet is transforming public debate and citizen-powered democracy across the country.  (4/23/2010 — 23 minutes)

BILL MOYERS: The industry wrote a letter to the commission and said that advocates of an open Net who are coming to the FCC and asking you to reclassify what you do as telecommunications want to steer the debate, and I’m quoting from the letter, “in a radical new way.” I mean, they’re calling you extremists and they’re calling you radical.

MICHAEL COPPS: Because I want to call telecommunications, “telecommunications” and go back to the openness that has characterized the net since it was first invented in the laboratories of the Department of Defense. That’s not extreme. That’s not radical. That’s called going back to basics. That’s called consumer protection 101.

BILL MOYERS: How threatened is the whole idea of an open Net?

MICHAEL COPPS: Oh, I think very. I think very. I think there are powerful players that are opposed to it. Are in a position to make their influence felt. None of these things are going to come easy. We’ve just been through the health insurance debate. We’ve got the financial debacle. None of this stuff gets solved without taking on taking on a fight. The government doesn’t work that way. You’ve studied this history, I’ve studied this history. It’s painful, it needs movements, it needs grassroots support, it needs the people.

I had the pleasure of attending the SouthEast Association of Telecommunications Officers and Advisors (SEATOA) conference this past weekend in beautiful Asheville, North Carolina.  I was surrounded by some of the leading visionaries in the fields of next-generation broadband deployment, broadband policy and important Public, Educational, and Government (PEG) access networks.

Among those in attendance:

• Kyle Hollifield, representing Bristol Virginia Utilities/BVU OptiNet, a municipally-owned fiber optic broadband provider in Bristol, Virginia;
• Colman Keane, from municipal utility EPB Telecom in Chattanooga, Tennessee;
• Tommy Jacobson from MCNC;
• Ken Fellman from the National Association of Telecommunications Officers and Advisors (NATOA);
• Hunter Goosman from ERC Broadband, which operates a regional fiber optic network in the western Carolinas;
• Brian Bowman, Public Affairs & Marketing Manager of Wilson, North Carolina, home of municipal fiber network Greenlight, and
• Michael Crowell, Broadband Services Director of Salisbury, North Carolina’s forthcoming fiber to the home network Fibrant.

The conference included several informational sessions for those working on broadband projects.

Tom Power, chief of staff for the National Telecommunications and Information Administration (NTIA) and Jessica Zufolo from the Rural Utilities Service at the U.S. Department of Agriculture discussed rounds one and two of the broadband stimulus grant program and lessons learned along the way.

Thomas Koutsky, representing the FCC Broadband Opportunities Initiative, the legendary Jim Baller and FCC Commissioner Mignon Clyburn also spoke about the importance of developing better broadband networks across the country.

FCC Commissioner Mignon Clyburn delivered the keynote address at the SEATOA conference held in Asheville, N.C.

Thomas Koutsky, speaking about the National Broadband Plan said, “The National Broadband Plan is just a plan.  It doesn’t do anything by itself, it requires action.”  I couldn’t agree more.  The National Broadband Plan could culminate in a giant missed opportunity if we do not reach out and demand that our representatives in Washington get on board with a definitive plan to deliver better broadband across the country.  Washington is full of studies and recommendations that are little more than words on paper, sitting on a shelf because Americans didn’t demand action to implement them.

I could go on all day about Jim Baller and his inspiration that drives us all to fight for better broadband in America, but I will highlight this quote: “It is a disgrace that every American does not have affordable access.”  Baller rallied the crowd with a video clip from Al Pacino’s speech in Any Given Sunday.  It’s not difficult to carry Pacino’s message about football to our fight in the broadband arena, and the enthusiasm Baller brings can only be a positive.

Perhaps the most newsworthy event from the conference was a speech from the newest FCC Commissioner, Mignon Clyburn.  She gets it.  In an amazing 20-minute speech, Clyburn succinctly delivered a message we wish some of our state lawmakers would understand and support:

“Thus, the Plan recommends that Congress clarify that state and local governments should not be restricted from building their own broadband networks. I firmly believe that we need to leverage every resource at our disposal to deploy broadband to all Americans. If local officials have decided that a publicly-owned broadband network is the best way to meet their citizens’ needs, then my view is to help make that happen.

When cities and local governments are prohibited from investing directly in their own broadband networks, citizens may be denied the opportunity to connect with their nation and improve their lives. As a result, local economies likely will suffer. But broadband is not simply about dollars and cents, it is about the educational, health, and social welfare of our communities. Preventing governments from investing in broadband, is counterproductive, and may impede the nation from accomplishing the Plan’s goal of providing broadband access to every American and every community anchor institution.”

Clyburn’s speech clearly illustrates she’s an advocate for consumers and is interested in knocking down barriers that block Americans from enjoying world class broadband service.  Clyburn considers the National Broadband Plan a group effort developed by and for the American people, not just a policy document from the FCC.  It was truly an uplifting speech that gave me hope positive change in broadband and broadband policies are possible with her presence on the Commission.

[flv width=”540″ height=”380″]http://www.phillipdampier.com/video/CommClyburn.mp4[/flv]

FCC Commissioner Mignon Clyburn delivers the keynote speech at the SEATOA conference.  Clyburn goes on record advocating municipally-run broadband projects where communities deem them appropriate.  This clip comes courtesy of Communities United For Broadband and you saw it first here on Stop the Cap! (April 27, 2010 — 20 minutes)

(This video is large in size.  If playback stops, please pause the video to allow more of the clip to load into the player’s buffer to reduce the chance of stalled playback.  If you still experience problems, please Contact Us.)

Reach Out and Touch Someone... With Cash

Stop the Cap! readers Terry and Scott write to let us know it was an Astroturf weekend in the pages of the New York Times‘ ‘Letters to the Editor’ section as two traditional allies in big telecom’s fight against Net Neutrality and broadband regulation blasted the newspaper’s recent pro-FCC regulatory authority editorial.

Mike Wendy, vice president of the Progress and Freedom Foundation, a disingenuously-named telephone and cable-backed front group, was first up, proclaiming the bipartisanship of the glorious Telecommunications Act of 1996 which made unregulated broadband’s growth possible:

Over the last five years alone, American companies — incentivized by the absence of Internet regulation — have invested more than half a trillion dollars to build broadband infrastructure. Consequently, this has exploded broadband choice and access, boosting jobs, productivity and commerce, as well as other important societal-civic benefits, for more than 90 percent of America. This growth will continue, fostered by vibrant competition among cable, wireless, wire line and other evolving means.

It is understandable that you ignore the second fact: it reveals an inconvenient truth. The Telecommunications Act of 1996, which put Internet services outside of 75-year-old telephone regulations, was passed by a Republican Congress and signed into law by a Democratic president, in an overwhelmingly bipartisan manner. The Bush-era regulatory changes, which ensure that Internet services get treated in accord with the law, only followed through on the pro-deregulatory, pro-marketplace intent of the law.

Speaking of inconvenient truths, it took the newspaper’s editors to fully disclose that “the writer is vice president of […] a think tank that takes support from the information technology, telecom, wireless, media, cable and content industries.”  Kudos to the Times for disclosing that — too often such hackery goes unchallenged, without informing readers who is paying for it.

In the case of P&F, it’s all our favorites:

Translation: We don't represent consumers

• AT&T
• Comcast Corporation
• Cox Enterprises
• National Cable & Telecommunications Association
• Time Warner Cable
• T-Mobile
• USTelecom – The Broadband Association
• Verizon Communications

Of course, those big dollar amounts representing industry investments ignores the even bigger profits reaped from those investments, particularly in barely-competitive broadband.  Nobody in the broadband industry is lining up for a bailout, that’s for certain.

As to the group’s assertion that bipartisan bliss made telecom deregulation all worthwhile, the only thing they managed to prove is that both political parties are ready and willing to be suckered into believing the broken promises of lower pricing and better service for their constituents (helped along with a generous campaign contribution to ease any disappointment later on.)

President Clinton, who signed the Act, considers it one of his mistakes after he saw the results.

Just days after the governor of Arizona signed a highly controversial border enforcement measure into law, LULAC labels Net Neutrality opposition its "top news story." Is this a group that represents the real interests of America's Latino community, or that of its backers AT&T and Verizon?

Next up is a letter from Brent A. Wilkes, Executive Director, League of United Latin American Citizens (LULAC).  He doesn’t like Net Neutrality either, and regurgitates familiar industry talking points our readers can recite in their sleep:

We’ve seen more than $200 billion invested in broadband networks — more private investment than anywhere in the world — and the Internet in the United States has been an unquestioned success.

Second, network neutrality regulations are largely a solution in search of a problem. The F.C.C. adopted “Open Internet” principles in 2005. Since then, there have been only a few alleged breaches that were quickly resolved under this framework.

On the other hand, net neutrality regulations could shield the companies that make billions in profits from the Internet — search engines and other providers — from contributing toward the $350 billion in investment broadband upgrades needed to handle bandwidth demands, which double every two years. That would shift these bandwidth costs exclusively — 100 percent — onto consumers and could thereby deter broadband adoption in Latino and other communities.

Net neutrality could also bar broadband providers from managing, in a nondiscriminatory manner, the few bandwidth-hogging applications and services that can consume nearly all of a neighborhood’s bandwidth. If and when critics identify a real problem, Congress should quickly grant the F.C.C. the express authority to fix it.

Now why would a Latino interest group be so ready and willing to carry the industry’s water in the pages of the New York Times?  Whenever AT&T and Verizon have a public policy concern, LULAC is sure to follow.  For years, this group has been a part of more than a few industry-backed astroturf campaigns designed to trick consumers into buying their corporate agenda.  For disadvantaged Latino communities already hard hit with an ever-expanding price tag for telecommunications services, it’s shameful to see a group openly advocating an agenda that extracts more money from consumers’ wallets.

LULAC has received millions in support from General Motors, AT&T and Verizon

LULAC was there as a card-carrying member of both TV4Us and Consumers for Cable Choice, front groups promising consumers in states served by AT&T that statewide video franchises would lower their cable bills.  LULAC was front and center in the cheerleading section.  Only Latino Wisconsins, along with everyone else, got rate increases instead.  Thanks, LULAC!

Telecom analyst Bruce Kushnick tears the lid off:

This “deception … is about playing on America’s caring about the public interest and about minorities getting a fair shake,” Kushnick says . Worse, “these organizations have very deep-pocketed funders with lobbying groups, PR firms and others to get them the loudest ‘volume’ in the media or access to regulators and legislators. They often overwhelm the message of independent consumer groups.”

LULAC was there in states like New Jersey when Verizon was looking for its own statewide franchises.  To not offer them, LULAC suggested, would harm Latino communities across the region.  Actually, for many of them, the fact their cable and phone bills continue to march relentlessly higher actually hurts more.

The group is an equal opportunity sellout.  During discussions about XM Radio and Sirius merging, LULAC was ready with a letter of support for the merger.  Because when you think about pressing concerns for today’s Latino community, dwelling on the merger of two satellite radio services is a real front burner issue.

When Verizon wanted to acquire Alltel, guess what group was there to cheer the deal on:

LULAC supports this merger because the networks of the two companies are largely complementary. That means that when the merger is complete, even more consumers will enjoy the innovations Verizon Wireless plans to bring to market in years to come.

It’s getting hard to find a cause célèbre for AT&T or Verizon where LULAC doesn’t have their back.

But why?

Money, of course.

AT&T and Verizon have both donated millions of dollars over the years to LULAC.  General Motors, which had a direct interest in the outcome of the XM/Sirius merger is a donor as well.

Don’t fall for hackery.  Net Neutrality protects consumer interests and guarantees online freedom, something especially important as the forthcoming immigration reform debate begins anew.  That’s an issue Latinos are concerned with.  Too bad those issues don’t generate multi-million dollar contributions, which might get groups like LULAC to stop advocating against the interests of their own members.

Phillip "Don't over-complicate this" Dampier

Promises made during election campaigns that are later dropped for political expediency are broken promises.

Those are wise words for both the Obama Administration and the FCC as they ponder what to do about broadband regulation.  President Obama campaigned on developing an effective National Broadband Plan and preserving the integrity of the Internet with Net Neutrality policies.  Both will now be tested in how they respond to a recent court decision which has thrown a wrench into broadband policy initiatives.  At issue:

• How Americans access the Internet;
• What kind of Internet they find once they access it;
• How much money is it going to cost at the end of the month for what kind of service.

These are all laid on the table of FCC Chairman Julius Genachowski with a big bow attached, courtesy of Comcast.  The nation’s largest cable company threw a hissyfit when the FCC rebuked them for throttling the speeds of their Internet customers.  They sued and won more than they bargained for when the DC District Court ruled the Commission lacked the authority to regulate broadband as an “information service,” a dubious premise cooked up by former FCC chairman Michael Powell.  The concept was akin to a police officer placing you under arrest on the authority of a bottle of green tea.  Of course you could get away with that too as long as nobody challenged it in court.

Chairman Genachowski could choose to kick the ball down the field to be played another day by appealing the court decision or trying to get Congress to pass new legislation.  Or he can strike decisively and effectively by declaring broadband to be what it actually is — a “telecommunications service.”  Under that declaration, the FCC can implement its National Broadband Plan, which will dramatically improve access for rural America and promote better broadband service for those who already have it.  The Commission can also move forward on common sense Net Neutrality policies that tell providers not to interfere with online traffic for monetary reasons.  It can even give the Commission the authority to keep a watchful eye for the next clever scheme that benefits providers at the customer’s expense.

But that depends on Chairman Genachowski standing up to the broadband industry, their friends in Congress, and the inevitable industry-funded BS Festival from astroturfers designed to sucker people into supporting industry positions.

The threats and concern trolling are already parading across the Beltway:

• “The industry would declare war on the FCC“: That war has been underway ever since the litigious broadband industry first started running to friendly courts whenever it encountered a regulatory nuisance just waiting to be overturned on “free speech for corporations”-grounds.  Chairman Genachowski needs to borrow from President George W. Bush and declare, “bring ’em on!” He can fight industry propaganda about “lost jobs” and “investment” with facts found in every provider’s quarterly financial reports showing bountiful harvests of profits, while spending and costs decline.  It’s not the FCC’s fault Verizon fired more than 13,000 employees in the past few years.  The FCC didn’t tell Verizon to stop upgrading its copper wire network to fiber optics to remake traditional landline phone service into something far better and eventually even more profitable.
• “Congress would be upset by an overreaching Obama Administration”: That would mostly be the same Republican members who reflexively oppose every aspect of the Obama Administration’s legislative agenda.  Considering warmed-over health care reform is still being called “socialist” and an “apocalypse” by these people, there isn’t a Pick-Me-Up Bouquet in the world that could get them to support this administration.  Ordering a ham sandwich and leaving the Swiss cheese off would probably result in some members of Congress reciting Glenn Beck’s declaration the omission is proof Obama is working with lactose-intolerant high officials of the Chinese Communist regime.
• “Verizon, AT&T, and others will step up spending on Astroturf Campaigns”: If a consumer like myself can sniff out an industry-funded campaign to convince consumers to support policies directly challenging their own wallets, why can’t Washington policymakers?  The industry talking points rarely change anyway, and those shouting the loudest usually try to obscure who paid for the megaphone.  When in doubt, simply ask “is there any industry money funding your organization?”  If they won’t say, you have your answer.
• “But they’ll sue”: When are they not suing?  Of course the industry will challenge the legality of any policy that puts their quest for unlimited profits at a disadvantage.  We live in a system of checks and balances between private enterprise and public oversight and regulation.  The struggle for the perfect balance between the two will persist forever, but after an era of reckless deregulation and abdicated oversight responsibility, the resulting Great Recession should provide strong evidence the pendulum needs to swing in the opposite direction.

FCC Chairman Julius Genachowski

USA Today today published a piece on Genachowski’s coming decision which hit all the aforementioned bases.

Astroturf Campaigns and Legal Threats: “If the FCC changes the way it treats high-speed Internet, then “everybody in the industry would sue,” says Scott Cleland, chairman of NetCompetition.org, an Internet forum supported by cable and phone companies. “It would be like an 8.0 earthquake under the sector,” he adds. “Hundreds of billions of dollars have been invested (in broadband) in the belief that there’d be a market rate of return, not a regulated rate.”

Cleland is a notorious industry mouthpiece, but at least he openly acknowledges his strings are pulled by the industry that generously funds his anti-consumer, pro-provider rhetoric.

Republicans: The FCC’s two Republican commissioners have said they’d fight a move to reclassify broadband.

No surprises there, and you can expect most Republicans in Congress to also take the industry’s position on these matters.  Guess what?  They still won’t vote for you even if you compromise with the broadband industry.

USA Today, itself headquartered in suburban Washington, delivers up the beltway solution always pressed on pliable Democrats – compromise away your principles and split the difference:

If Genachowski wants to defuse the issue, he could try to engineer a compromise. For example, he could agree to take broadband reclassification off the table as long as providers make legally binding promises to offer consumer protections called for in the National Broadband Plan and to agree to treat all Web services equally. But it will be hard to please everybody as advocates gear up for a fight.

That’s the understatement of the year.   It’s also a classic case of reinventing the wheel.  What USA Today‘s reporter suggests is exactly what the FCC used prior to the Comcast case to regulate broadband — an “understanding” with the industry without clear-cut regulatory authority.  That lasted until the three judge panel laughed it out of court.  The FCC has no authority in its current form to make legally binding promises with an industry that contemptuously dismisses the notion it should have any in the first place.  Without reclassification, the judge certain to hear the next court case challenging the “understanding” will almost certainly throw that out as well.

Declaring regulatory authority does not, as the industry likes to pretend, mean that your Internet Service Provider will be saddled with 1930s telephone rules.  It merely gives the FCC the authority to move forward on its agenda to improve broadband, protect its integrity, and help coordinate a plan for the future that first takes your interests to heart, not simply those on Wall Street.

For a change of pace, let’s choose the clearly marked road of reclassification and avoid the deregulatory dead end of broken promises offered by the broadband industry or the equally awful decision to build a new road in a futile effort to win bipartisan brownie points.

[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.]

Phillip "The only New Deal my cable company brought to the table was a $150 monthly broadband bill for exactly the same level of service I had when paying $50" Dampier

Joe, a regular Stop the Cap! reader noticed the National Review this morning published another one of their “in the pocket of big telecom” editorials proclaiming Net Neutrality is “anti-consumer.”  Right into the first paragraph, it was clear the editors either fundamentally misunderstand the reality of today’s broadband industry or honestly didn’t care as long as it suited their business-friendly agenda.

Readers, you need not go along with the charade.  While the publishers of National Review can probably afford to buy their way around anything the phone and cable industry can dream up, you probably cannot.  What those opposed to Net Neutrality frame as “freedom from government intrusion” is in reality an attempt to keep your broadband provider from screwing around with your connection in hopes of charging you more for the same service you used to have.

Turn on your TV these days and within minutes you are likely to see several commercials from your local cable, satellite, or telecommunications company trying to convince you that their cable, DSL, or mobile broadband services are superior to those of their competitors. That’s because the market for broadband service is robustly competitive: If service providers didn’t advertise, they would lose business.

Actually, most of the advertising I see on my television comes from free ad inserts Time Warner Cable hands themselves during ad breaks on national cable channels.  My local phone company, Frontier Communications, hasn’t advertised on television for quite awhile.  The mobile broadband advertising I see fights over coverage and who has the coolest new device.  They aren’t advertising on price because they almost all charge exactly the same $60 for 5 GB of usage per month.

None of this represents “robust competition” when one of the players on the wired side is absent from the airwaves and the wireless folks have convenient cartel-like pricing for wireless broadband.

They would also lose business if they did something that made their customers unhappy, such as slowing or blocking the delivery of popular content over the Internet. Or they might gain customers if they created a model that, for a fee, guaranteed uninterrupted high-speed access to certain services, such as telemedicine, video conferencing, or some other use of the Internet we have yet to imagine. This competition directs broadband toward its most efficient uses. It is pro-consumer in that it allows for the proliferation of choices and pressures companies to offer a variety of pricing options.

Of course, the editors who wrote this did not have to fight back a 300 percent rate increase with an Internet Overcharging scheme that would have limited broadband access in at least five cities to start.  Let’s test their theory by asking a few questions.  First, did anyone ask for this kind of pricing to begin with?  Answer: No.  Second, did the plan make customers unhappy?  Answer: Emphatically yes.  Third, upon hearing from customers that they did not want this kind of pricing, did they discard the plan?  Answer: Not on your life.  Fourth, did it take two members of Congress to drive the company to finally pull back their plan?  Answer: You bet.

Now ask the same types of questions about slowing down your web connection to make room for the neighbor up the street willing to pay more to get more while you enjoy less for the same price you’ve always paid.

Lesson learned: when you effectively have a duopoly or monopoly in your market, you don’t have to listen to customers — they have to listen to you.  Indeed, even where competition exists, there is every indication the competitors would themselves increase prices or limit service to rake in additional revenue.  That happens routinely even in more competitive industries like the airlines — something you realize when you try and check bags and are asked for a credit card.  In Canadian broadband, foreshadowing a non-Net Neutral USA, when one player limits usage and throttles connections, the competitor more often than not joins in.

The other fallacy raised in this useless editorial is that Net Neutrality somehow bars companies from offering all of those wonderful innovative Internet applications.  It’s a common talking point straight out of the industry’s playbook.  Nothing precludes the broadband industry from expanding and improving their networks to offer all of these services.  Under Net Neutrality, they simply wouldn’t be allowed to do it on the backs of their other Internet customers, whose connections are automatically impeded to make room for that “innovation.”  The saddest part is that the only innovation at work here is price-gouging customers instead of upgrading networks.

It would be a huge mistake to impose by fiat a single business model on the carrier side of the Internet.

Tell that to AT&T and Verizon who have exactly the same pricing in their business model for mobile broadband service.  Is it a huge mistake for them?

Specifically, they want the government to prohibit broadband providers (such as Comcast) from discriminating against content providers (such as Google) by, for instance, charging them different rates for different levels of network service. They argue that, in the absence of such regulation, broadband providers can act as self-appointed censors, slowing down or blocking content they don’t like. Keep in mind that in no instance has this actually happened. So far, broadband providers have acted only to slow down noisome bandwidth hogs in order to manage traffic and ensure a high quality of service for the majority of their customers. Net-neutrality proponents counter that other customers — those unhappy about the slowdowns — lack meaningful options; that is, that the market for broadband service is not sufficiently competitive.

It is -shocking- the government would want to make sure broadband providers don’t block or discriminate against other people’s content.  We can’t have that!

The National Review needs to consider studying up on history.  The cable industry, for example, is notorious for blocking competitor access to its content.  To this day, the industry is fighting to keep the cable networks they own off competitors’ lineups.  The same company that provides your broadband service wants to make sure their telephone competitor cannot show a regional sports channel they own.  At least one broadband provider in the United States tried to block competing Voice Over IP phone companies from being used on their broadband service.  The same “blocking” mentality popped up in Canada where a broadband provider purposely blocked a website critical of that company.  Want access to cable programming online but don’t have a cable-TV package?  Good luck.  TV Everywhere projects are specifically designed to block non-cable TV customers from accessing that programming online.

National Review‘s afterthought admission that providers like Comcast were diddling with customers’ Internet speeds is waved away as somehow the fault of bandwidth piggies, another common meme in the talking points packet provided by the broadband industry.  Never mind the company had effectively spied on customers to determine what they were doing with their connections, that they first denied reports they were throttling, effectively throttled everyone — piggies or not — and then quickly stopped when the FCC protested.  If Comcast wasn’t doing anything wrong, why not inform customers first?  After all, the “majority of customers” would want throttling to preserve their “high quality of service,” right?

Of course they don’t, and when customers found out the company charging them good money to provide a service was also trying to systematically reduce its value with speed throttles, they howled in protest.  Who knows what online application would fall next to the throttle?

This would effectively mean applying to broadband providers the rules designed for landline telephone companies in the 1930s. We know Obama wants to emulate FDR, but this is getting ridiculous.

Oh now see how they tried to be funny with the slap against Obama and FDR?  The National Review would have been the magazine defending the railroad robber barons and utility trusts — unregulated monopolies — back during FDR’s day.  They’d be just as wrong then as they are now.  The only New Deal my cable company brought to the table was a $150 monthly broadband bill for exactly the same level of service I had when paying $50.

The current regulatory framework for broadband was constructed by Michael Powell’s Republican-majority FCC, classifying broadband as an “information service.”  It was bureaucratic incompetence because it relied on vaporware authority that a court found, to nobody’s surprise, didn’t exist.  The court does recognize the FCC’s authority to regulate “telecommunications services,” so by simply reclassifying broadband as such, the basic question of authority is solved.  The National Review pretends this will automatically mean 1930s-like regulations as applied to copper wire-phone companies, but that’s not true.  The National Review simply doesn’t want the FCC to have any authority in the first place.

But the FCC’s authority to reclassify broadband to suit its desires is also open to legal challenge. As a result, we are sure to hear louder calls for Congress to regulate the Internet or to grant the FCC the explicit authority to do so. These calls should be ignored. The Internet has thrived in the absence of homogenizing federal regulations, and this organic development should be allowed to continue so long as competition can act as a check on anti-consumer practices.

The calls to enshrine Net Neutrality, stop Internet Overcharging, and force open broadband markets and expand service all do not come in a vacuum.  They are ideas born from past provider abuses that have demanded consumer protections in response.  Who would have dreamed up Net Neutrality if AT&T’s Ed Whitacre didn’t insist Internet traffic could not use his pipes for free.  What about when the industry started toying with developing premium tiers of service that relied on slowing down the connections of their other paying customers.  Why worry about forcing markets open to additional competition?  Oh yeah, because of statements like those from Landel Hobbs (Time Warner Cable COO) who told investors Time Warner Cable could use its market position in broadband to jack up prices whenever they chose.  And they did.

The National Review‘s “hands off” attitude is the same one they’ve had towards banks, and now every American is paying for that mistake.  Let’s not repeat it.

Besides, as it stands these companies compete vigorously against one another in a way that is beneficial to consumers. If one of them makes an unpopular business decision, its customers can go elsewhere. If, however, an unelected FCC chairman dictates uniformity in the services these companies provide, then there is nowhere Americans can turn for innovations the government may have strangled in the cradle.

Where exactly do consumers in rural areas go for alternative broadband when their monopoly phone company provider limits their service or charges them confiscatory pricing?  Where do residents go when both providers limit service?

Consumers have far more power to deal with the “unelected FCC Chairman” than dealing with intransigent phone and cable companies.  Elections every few years have consequences.  There are no elections for Comcast, Verizon, Cox or AT&T.  They’re effectively Providers-for-Life in the communities they serve.

The National Review has little to fear from a broadband dark ages where innovation disappears.  Somehow, an industry that rakes in billions in revenue every year will manage to get by living under basic guidelines that require them to earn their money fairly and spend some of those profits to keep up with very profitable demand.  They’ll sue anyway, of course.  But that could buy us enough time to spur additional competitive choices in a duopolistic market for broadband, helping put to work those free market principles of fierce competition the National Review believes in.

[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.]