Shark-infested waters for AT&T and T-Mobile USA

Months after the U.S. Department of Justice announced its formal opposition to the merger of AT&T and T-Mobile, the Federal Communications Commission yesterday announced it would hold its own unusual “administrative hearing” to review the deal regardless of the outcome of a Justice Department lawsuit.

It has been more than nine years since the FCC last held such a hearing, which derailed the proposed merger of satellite TV providers DISH Network and DirecTV.  It is the clearest indication yet that regulators are deeply uncomfortable with the deal.

FCC Chairman Julius Genachowski waited for the Justice Department to announce its opposition to the deal before making his own concerns known.  The decision to pursue the special hearing, which won’t begin until 2012 and is likely to take several months, follows the lead of antitrust regulators at the DOJ.

It represents a nightmare scenario for AT&T, which has spent millions lobbying and promoting a merger with Deutsche Telekom’s T-Mobile USA.

An unnamed FCC official told The Wall Street Journal AT&T’s campaign has been playing fast and loose with the facts, particularly relating to claims the merger will create up to 100,000 new jobs. The official, who has seen confidential document filings from AT&T, says the phone company’s secret papers reveal the exact opposite — “massive job losses” if the deal gets approved.

Most companies confronting an FCC administrative hearing think long and hard about the prospects of the deal. Unlike an antitrust legal case, which must prove that a merger will substantially undercut competition, the FCC need only prove a deal is contrary to the “public interest” to reject it, a much lower hurdle.

When DirecTV and DISH failed to win a nod from the FCC for their merger, it fell apart.

Solomon

AT&T was testy after hearing the news.

“It is yet another example of a government agency acting to prevent billions in new investment and the creation of many thousands of new jobs,” AT&T senior vice president of corporate communications Larry Solomon told the Journal. He added, “We are reviewing all options.”

A growing number of Wall Street analysts believe those options are dwindling by the day, and an all-out war by AT&T against regulators could come at a cost when the giant phone company brings other business before them. Genachowski is still willing to go to bat for AT&T, circulating a draft approval among fellow commissioners that would grant the company’s separate proposal to purchase $1.9 billion in additional wireless spectrum from Qualcomm, Inc.

Observers predict AT&T might offer to divest a larger portion of T-Mobile than it was originally comfortable considering.  That may ultimately prove less expensive than the alternative — paying Deutsche Telekom a breakup fee worth $6 billion dollars should the merger fail to succeed.

[flv width=”512″ height=”308″]http://www.phillipdampier.com/video/WSJ FCC Chief to Seek Hearing on ATT Deal 11-22-11.flv[/flv]

The head of the Federal Communications Commission will seek an administrative hearing on AT&T’s proposed $39 billion deal to acquire T-Mobile USA, according to a person close to the matter. Thomas Catan has details on The Wall Street Journal’s ‘News Hub.’  (2 minutes)

Dear Chairman Genachowski, Attorney General Holder and Commissioner Sandoval:

We write to urge you to reject AT&T Inc.’s proposed purchase of T-Mobile because it will without question lead to higher prices for consumers.

This is not conjecture; it is the lesson of history. Seven years ago, AT&T Inc.’s wholly owned subsidiary, AT&T Mobility LLC (then known as Cingular Wireless Corporation) requested permission to buy AT&T’s wireless network (then known as AT&T Wireless Services, Inc.) for $41 billion. At that time, AT&T and Cingular had the first and second largest share, respectively, of wireless communications providers in the U.S.

In order to get the merger approved, AT&T and an army of executives, lobbyists and allies assured regulators and consumers that the deal was in the public interest by making promises — the very same promises that we’re hearing from AT&T today:

What happened after the AT&T – Cingular merger? Once the Federal Communications Commission approved the deal (after negligible scrutiny), the newly merged company – which later renamed itself AT&T Mobility LLC– betrayed its promises. It abandoned the old AT&T network, deliberately degrading the network so that AT&T customers would be forced to migrate to Cingular’s own network, pay an upgrade fee of $18, buy new phones and agree to new and more expensive rate plans. These anti-consumer moves were enforced by an anti-competitive “early termination fee” of anywhere between $175 and $400, which prevented customers of AT&T from moving to another carrier.

In short, AT&T policyholders were railroaded into spending hundreds of dollars more in order to maintain their cellular service – a colossal rip-off by the same corporate executives who are now asking for permission to do it all over again.

Nothing in the terms of the proposed merger bars AT&T from engaging in a repeat performance against helpless T-Mobile customers if this deal is approved. Indeed, even as the companies mount a massive public relations campaign to win your approval, T-Mobile executives are already implicitly acknowledging that once the merger is approved, AT&T will make changes in the T-Mobile network:

T-Mobile has no plans to alter our 3G / 4G network in any way that would make your device obsolete. The deal is expected to close in approximately 12 months. After that, decisions about the network will be AT&T’s to make. That said, the president and CEO of AT&T Mobility was quoted in the Associated Press saying “there’s nothing for [customers] to worry about… [network changes affecting devices] will be done over time… ”

Moreover, AT&T has publicly admitted that if the merger goes through, T-Mobile subscribers with 3G phones will have to replace their phones to keep their wireless broadband service. AT&T plans to “rearrange how T-Mobile’s cell towers work” so that T-Mobile’s airwaves can be used for 4G service rather than 3G. Even though AT&T will be altering T-Mobile’s 3G cell towers to operate 4G services, Ralph de la Vega, president and CEO of AT&T Mobility and Consumer Markets, said that after the merger, T-Mobile 3G phones will need to be replaced with AT&T 3G phones, which “will happen as part of the normal phone upgrade process.” Once AT&T forces the T-Mobile subscribers with 3G phones to buy AT&T 3G phones, it is only a matter of time before AT&T pushes all of its subscribers over to the 4G network.

T-Mobile customers who are forced to migrate to AT&T’s network will have to buy new phones, agree to more expensive rate plans, or cancel their contracts and pay a termination fee.

Once known for its low prices, T-Mobile has already begun increasing its rates and decreasing options in anticipation of the merger. On July 20, 2011, T-Mobile discontinued its unlimited data plans, replacing them with plans that cap the amount of data a customer can use; once the customer hits the data cap, T-Mobile will substantially slow down their network speed. Nine days later, AT&T, which stopped offering new unlimited data plans last year, announced it would similarly start throttling data speeds even for customers on “grandfathered” unlimited data plans. AT&T is attributing its slow-down to the “serious wireless spectrum crunch.” In another implicit promise sure to be broken, AT&T has told its customers and regulators that “[n]othing short of completing the T-Mobile merger will provide additional spectrum capacity to address these near term challenges.”

Finally, T-Mobile was recently named one of the world’s most ethical companies for 2011. It was the only U.S. wireless telecommunication service provider that made the list. By contrast, complaints about AT&T’s service and prices are legion. Indeed, the views of millions of AT&T customers have been summarized by an online campaign known as “#attfail.” This merger will eliminate a U.S. wireless company that at least seemed to care about its customers.

To this day, the AT&T customers who were misled and overcharged by AT&T’s actions after the 2004 merger are still fighting in the courts for refunds and other remediation arising from the merger. In 2006, lawyers for Consumer Watchdog, joined by a group of private law firms, filed a national class action lawsuit against AT&T on behalf of the millions of customers who were victimized by the merger: Coneff v. AT&T Corp., et al., No. C06-0944 (W.D. Wash). In response, AT&T’s lawyers claimed that when AT&T customers were forcibly moved to the new network, they simultaneously agreed to waive their right to seek refunds from AT&T in court because of a provision buried in the fine-print of AT&T’s contract that required arbitration of all disputes and barred customers from joining together in an arbitration. Throughout the litigation, AT&T changed its arbitration clause several times, each time modifying various terms while retaining the arbitration clause that prohibited customers from bringing or participating in a class action, regardless of whether it is brought in arbitration or in court.

In 2009, the U.S. District Court in Seattle, Washington, held that AT&T’s arbitration clause was unconscionable because most AT&T customers would never obtain redress without the ability to bring a class action. The case is presently before the 9th Circuit. In its briefing, AT&T now contends that the U.S. Supreme Court’s recent decision in AT&T Mobility v. Concepcion 563 U.S. __ (2011) should be interpreted by the courts to apply to the egregiously unfair and one-sided mandatory arbitration clauses like the one struck down in Coneff in 2009, which, in our case and unlike in Concepcion, has been shown to preclude customers’ basic due process rights.

Albert Einstein defined insanity as doing the same thing over and over again and expecting different results. Considering AT&T’s track record, it is irrational to expect that the AT&T and T-Mobile merger will yield different results. If the merger is approved, millions of T-Mobile customers will be subjected to the same costly and unfair practices that AT&T customers experienced after the 2004 Cingular merger. Moreover, permitting AT&T to swallow a competitor will leave the American cellular marketplace controlled by a duopoly that, through the artifice of termination fees and arbitration agreements, will effectively eliminate competition between them.

This is a bread and butter test of the federal government’s commitment to American consumers versus the Wall Street and corporate interests that too often seem to be the winners every time the federal government takes action.  The Administration should ignore the lofty pronouncements of the corporate-funded academics and allies who provide cover for the glib promises of two cellular giants, along with the Wall Street firms that will reap millions in fees for providing the merger paperwork, in favor of the average American family, who, after all they have been forced to sacrifice these last few years, should not be required to pay more of their dollars for the ability to use a cell phone.

Harvey Rosenfeld

Laura Antonini

You can find documented footnotes accompanying this letter here.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/ATT T-Mobile Merger Ad.flv[/flv]

AT&T is blanketing the airwaves with claims of improved service in its advertising promoting the merger with T-Mobile.  (1 minute)

The Federal Communications Commission today raised the hurdle for AT&T when it told the wireless company it would consider its proposed acquisition of wireless spectrum from Qualcomm in concert with its application to acquire T-Mobile USA.

The FCC wrote both AT&T and Qualcomm regarding the ongoing review of both transactions:

“The Commission’s ongoing review has confirmed that the proposed transactions raise a number of related issues, including, but not limited to, questions regarding AT&T’s aggregation of spectrum throughout the nation, particularly in overlapping areas. As a result, we have concluded that the best way to determine whether either or both of the proposed transactions serve the public interest is to consider them in a coordinated manner at this time.”

AT&T Donates $9,000 to the United Way of Northwest Florida, which promptly returns the favor with a nice letter to the FCC supporting the telecom company's agenda.

At issue is whether AT&T is warehousing wireless spectrum it actually has little intention to use and whether or not AT&T is being honest when it suggests it needs to acquire T-Mobile USA to expand the number of frequencies open for its growing wireless network.

Critics of the merger claim AT&T has plenty of unused spectrum available to deliver service, particularly in the rural areas AT&T claims T-Mobile can help it serve.  T-Mobile is not well-known for its service in smaller communities and rural areas, preferring to rely on roaming agreements to achieve national coverage.  With its proposed acquisition of valuable spectrum in the 700MHz range from Qualcomm, excellent for penetrating buildings and delivering reliable service, the FCC may be wondering if the proposed merger with T-Mobile is necessary at all.

Gigi Sohn from Public Knowledge doesn’t think so.

“We are pleased that the Commission has decided to consider AT&T’s purchase of Qualcomm spectrum in the context of AT&T’s takeover of T-Mobile.  It doesn’t matter whether both transactions are in the same docket; the fact that the Bureau will consider them together in any manner is a strong statement,” Sohn said.

“This April, several public interest groups, Consumers Union, Free Press, the Media Access Project, Public Knowledge, and the New America Foundation, asked for the Commission to take that action because we said that both deals together would ‘further empower an already dominant wireless carrier to leverage its control over devices, backhaul, and consumers in ways that stifle competition,” Sohn added.  “We look forward to working with the Commission on these issues which are so vital to the economy of this country.”

Companies that have acquired wireless spectrum at government auctions have not always put those frequencies to use.  At least one firm warehoused spectrum as an investment tool, earning proceeds reselling it to other providers.  Others have simply squatted on their spectrum, sometimes to keep it away from would-be competitors.

Of course, considering AT&T is a master of dollar-a-holler astroturf operations and lobbying, it’s only a matter of time before a renewed blizzard of company-ghost-written letters start arriving at the Commission telling them AT&T needs both the Qualcomm spectrum -and- the merger with T-Mobile.

Groups like the NAACP, United Way of Northwest Florida, the National Puerto Rican Coalition, and the U.S. Cattlemen’s Association ought to know, right?

Thanks to Stop the Cap! reader Bones for alerting us.

In Wisconsin, one protest after another as state legislators deliver results for corporate interests, often at the expense of the public interest. Broadband was the latest close call.

Imagine if you drove down to your local credit union this morning to find the doors padlocked and an ominous sign taped across the front door: “Closed for Anti-Competitive Business Practices.”  Then you return your books on loan from the public library, but find the same padlock and sign on that building, too.  Scratching your head, you then drive home vowing to get to the bottom of this only to be greeted by the mailman, who hands you a letter from your daughter’s school announcing steep and immediate tuition increases required to cover surprising new expenses.

As you try and understand what exactly has happened, it all becomes clear when you switch on the evening news — the Republicans in Wisconsin have launched their version of a “revolution,” — one that originally promised to “restore fiscal sanity,” but instead looks more and more like a statewide pilot project run by the Ayn Rand Institute, with the financial backing of AT&T.

In the fight for better broadband, normally the bad actors can be easily identified and called out from both political parties.  Democrats and Republicans turn campaign contributions and promises of power and influence into favorable, often custom-dictated legislative proposals that come straight from the companies that will benefit the most.  But the last six months of Republican rule in Wisconsin cannot be compared with anything else that has come before.  It’s a wholesale sellout to AT&T, and even statewide protests and media coverage on a massive scale appears to have only delivered a temporary reprieve, with strings attached.  What’s worse, even after the massive call-out against the telecom overreach, some of the proponents of broadband slash and burn politics are completely unrepentant, vowing to try again, perhaps when the public isn’t paying attention.

While some educational institutions believe any deal is better than no deal with the state’s ideologues, they will do themselves no favor if they drop the issue after the “compromise” is reached.  This all-out “war on broadband” cannot be appeased while AT&T’s true believers remain in office.

Let’s catch up.

In the last 48 hours, an ongoing series of “discussions” about the ultimate fate of WiscNet, Wisconsin’s institutional broadband cooperative network, have brought some assurances the network will not have to close its doors, at least not yet.  Yesterday, AT&T’s meddling to make changes to the “compromise” was on display, and one should never underestimate the cleverness of this company at finding ways to tie the hands of its targets with innocuous-looking legislative language.  Those stealthy last-minute additions can deliver a powerful sting only realized later, after the bill becomes law.

Angry phone calls pounded legislators in Madison, as did many newspaper editorials, TV news coverage (which we will review below), and a lobbying counterattack by librarians and educators all working to stop AT&T from winning an all out victory.  But make no mistake, this battle is by no means over.

For at least two years, WiscNet appears to have won the basic right to continue to exist, but only under a form of big government supervision.

The provision to ban award recipients from accepting broadband stimulus money from the federal government has been dropped.  Telecom industry lobbyists fought hard to get Wisconsin to virtually return federal stimulus money awarded to public broadband projects by trying to prohibit winners from accepting the checks.  Tens of millions already allocated to the University of Wisconsin would have had to be forfeit.  Instead, the changes worked out this week allow the university to use those funds to build and expand WiscNet to more state schools, libraries and public buildings.

WiscNet Coverage

Few legislators would openly admit trying to utterly destroy WiscNet, instead preferring “death by a thousand cuts,” writing rules and regulations that threaten the viability of the network’s ability to conduct operations.  While most of the onerous provisions were turned back, including those that would ban participation in Internet2 and limit WiscNet’s expansion, the compromise forces the network to face additional auditing and scrutiny by committed opponents to public broadband.

WiscNet put on a brave face, releasing the following statement:

We welcome an objective review of the relationship between the University of Wisconsin and WiscNet, a nonprofit cooperative.  The amendment allows the University of Wisconsin to continue as full members of WiscNet for the next two years, while the review helps everyone understand these issues better.  We look forward to a healthy dialogue with legislators, telecommunications providers, community partners, and others.  We are confident that those open lines of communication will be fruitful.

Don’t count on it.  Having followed these legislative battles for the past several years, one thing is certain: AT&T and their industry friends like Access Wisconsin will be back to try again and again and again.  As long as the current legislature includes members who are not only amenable to AT&T’s world views, but openly espouse them (and occasionally exceed them), WiscNet and public broadband in general is hardly safe.

Let’s remember who and what we are dealing with here:

The War on Broadband: At the core of the Republicans’ argument against public or institutional broadband is that it competes unfairly (somehow) against private corporate providers.  That argument ignores the fact WiscNet, among many other public and institutional networks, is essentially a cooperative, and one that existed long before phone and cable companies got into the Internet Service Provider business themselves.  Members pool resources to sustain a service that first and foremost delivers benefits to its users, not to external banks or investors.  Many institutional networks like WiscNet might even be compared to credit unions, delivering service to a pre-determined constituency that also happens to have a voice in how that network is run.

There are big banks and their supporters who detest credit unions because they represent “unfair competition” for them, because they can afford to deliver more service for less money.  It’s a familiar argument when you listen to some Republican senators in Wisconsin argue that the very existence of WiscNet represents anti-competitive behavior, harming fellow networks like Badgernet (another state institutional network).  It should not be a surprise to our readers to learn Badgernet is a network largely serviced by AT&T, and charges radically higher prices for its service because of what the phone company charges them for access.

The conservative movement in Wisconsin has been largely content dismissing broadband support in Wisconsin as a luxury perk, despite the fact the state scores 43rd out of the 50 best-wired states.  In addition to the purposeful distortions coming from those opposing networks like WiscNet, some have been reduced to arguing academia simply wants these networks for fast access to porn and copyrighted content.

Can Wisconsin afford their asking price?

“Help” from Dollar-A-Holler Mouthpieces like Access Wisconsin: This group, funded by the commercial telecommunications companies it represents at the expense of ordinary consumers, claims it is a helper in delivering an improved broadband experience in Wisconsin.  So helpful, in fact, it joined with AT&T and the state Republicans in calling for federal broadband stimulus money to be returned and not spent in the state for improved service.  While Access Wisconsin attacks government subsidies it doesn’t like, its member companies run to the bank with over $90 million annually in federally-mandated Universal Service payments.  The group is even upset the University of Wisconsin didn’t use state-based providers and contractors to build their expanded fiber network.  That comes as little surprise considering the University reached out to several of Access Wisconsin’s member companies (and AT&T) and found none interested in helping out.

The War on Libraries, Schools, and Taxpayers: The proposed cuts in library spending are deemed so dire by many patrons, they have begun to suspect the Republican majority would rather see people buy books at Wal-Mart than check them out for free at the town library.  On top of the budget cuts, broadband costs for schools and libraries would explode if these institutions were forced to buy access from Badgernet.

The party of “fiscal sanity” supported killing off cost-effective, money-saving broadband from WiscNet to fulfill a rigid ideological framework that would ultimately deliver less service for a lot more money.

Let’s compare prices for a moment.  Badgernet, which gets wholesale access from AT&T, charges prices that are far higher than WiscNet charges.  Badgernet itself is not the problem, its wholesale supplier is.  To defray the costs, the state of Wisconsin subsidizes Badgernet to the tune of nearly $17 million annually, to keep prices affordable for libraries and schools.  That $17 million effectively goes straight into AT&T’s bank account.  But that subsidy only gets you so far.  Badgernet charges $6,000 a month for 100Mbps service because that is the price required to recover costs charged by AT&T.  Many institutions rapidly outgrow this level of service and can upgrade to 1,000Mbps service, so long as they have a spare $49,500 a month laying around for broadband.

In contrast, clients on WiscNet can purchase 1,000Mbps service for about $10,000 a year.  Is that price disparity worth raising a ruckus over?  Apparently so.

The AT&T Dilemma: While AT&T did not win everything it wanted this year, prior evidence shows the company will be back to try again, just as it did with its statewide video franchising legislation that was supposed to deliver a competitive market for cable in the state.  In fact, it delivered higher prices instead.  Negotiating defensively with companies like this assures a war of attrition, as public providers find themselves compromising away core features of their network to protect whatever is left.

A much better idea for Wisconsin broadband is to launch an all-out counteroffensive.  Instead of stalemate compromises that constrain public networks, let’s demand they expand.  If there can be a co-op for dairy products and a credit union for banking, there certainly can be a community broadband cooperative that delivers service not just to institutions, but to members of the public and any independent provider who wants access — publicly owned for the public good.  That may not be WiscNet, designed under an institutional model, but it certainly need not be yet another overpriced offering from AT&T.

Before that can happen, Wisconsin residents need a cleanup — an upgrade — of the caliber of elected officials working on their behalf.  Thus far, a good percentage of Wisconsin’s current majority party seems far more interested in turning the state into a corporate lab experiment of their version of the free market done their way — for their benefit, at your expense.  The proof was at hand this week when the state nearly adopted a “cost saving” measure for broadband that would have cost Wisconsin taxpayers considerably more, all for the benefit of a handful of telecom companies.  Let’s help those legislators find a new day job sooner rather than later.

After that, WiscNet needs a legislative advocate of its own to introduce measures that undo the damage and then build on WiscNet’s success by expanding its reach and keeping it affordable.

Timeline: Tracking Wisconsin’s Awakening of the Wisconsin Republicans’ Broadband Agenda

Too often, broadband policy debates are too arcane for the general public to grasp.  Most people in the state probably never heard of WiscNet, and don’t realize when they might be using it.  But what they do understand is pay-for-play politics that hits them in the pocketbook.  As state residents learned the Republican majority wanted to ban the provider that delivers the most service for the least amount of money in favor of AT&T, they got involved and helped temporarily defeat the plan.

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June 7th: WISC-TV in Madison explains to viewers the plan to kill WiscNet would carry a pricetag of at least $70,000 in Madison alone, with potentially millions more at stake, all for the industry’s claim of a “level playing field.” (2 minutes)

[flv]http://www.phillipdampier.com/video/WAOW Wausau Library Internet 6-08-11.mp4[/flv]

June 8th: WAOW-TV in Wausau discovers what the war on WiscNet would do to Internet access in area libraries.  (2 minutes)

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June 12th: WFRV-TV in Green Bay tells its viewers the cost to procure Internet access in area universities could increase from $70,000 to more than $400,000, all to benefit private providers who want to compete at much higher price points.  (1 minute)

[flv]http://www.phillipdampier.com/video/WXOW LaCrosse Pulling the Plug on WiscNet 6-13-11.mp4[/flv]

June 13th: LaCrosse residents are told they’ll pay more for less if large telecommunications companies get their wish to knock out inexpensive broadband through WiscNet.  WXOW-TV lead the 5pm evening news with news the bill was a last minute addition that received full support from state Republicans.  (2 minutes)

[flv]http://www.phillipdampier.com/video/WEAU Eau Claire WiscNet 6-14-11.mp4[/flv]

June 14th: WEAU-TV in Eau Claire reports Sen. Terry Moulton (R-23rd District) got an earful from area hospitals about the terrible impact the shutdown of WiscNet would have there, which concerned him.  The station also reports on the threat to broadband funding in rural Chippewa Valley.  (Loud Volume Warning) (2 minutes)

[flv]http://www.phillipdampier.com/video/WQOW Eau Claire WiscNet Targeted 6-14-11.mp4[/flv]

June 14th: Eau Claire station WQOW-TV reports university students and academia generally faced the end of unlimited bandwidth if the state proposal to do away with WiscNet were to pass into law.  A telecom industry lobbyist claims the bill would allow private providers to deliver comparable service to institutions, but one local institution found an amazing price disparity: $2,500/yr with WiscNet or $1,000,000/yr with a private provider.  (2 minutes)

[flv]http://www.phillipdampier.com/video/WXOW La Crosse New Amendments 6-15-11.mp4[/flv]

June 15th: Newly elected Rep. Steve Doyle introduces amendments to turn back Republican proposals in the legislature that would harm statewide broadband networks, reports WXOW-TV in La Crosse.  (2 minutes)

[flv]http://www.phillipdampier.com/video/WKOW Madison WiscNet will stay the same in budget 6-16-11.mp4[/flv]

June 16th: WKOW-TV in Madison reports a compromise deal which will keep service running as-is for now, but subject WiscNet to government approval of any expansion efforts.  (1 minute)

Jenkins

The Wall Street Journal attempted to attach its own conventional wisdom in an opinion piece about cloud-based streaming that suggests Canada “is just ahead of the U.S. in introducing usage-based pricing [and] has bloggers and politicians accusing Bell Canada of unconscionable ‘profiteering’ from usage caps. The company, they rage, is reaping huge fees for additional units of bandwidth that cost Bell Canada virtually nothing to provide.”

The author, Holman Jenkins, is a regular on the ultra-business friendly editorial page of the Journal, and has been raging against Net Neutrality and for higher Internet pricing for several years now.

Jenkins’ latest argument, just like his earlier ones on this subject, falls apart almost immediately:

This critique, which is common, could not more comprehensively miss the point. Another car on the roadway poses no additional cost on the road builder; it imposes a cost on other road users. Likewise, network operators don’t use overage penalties to collect their marginal costs but to shape user behavior so a shared resource won’t be overtaxed.

Jenkins needs to spend less time supporting his friends at companies like AT&T and Bell and more time exploring road construction costs.  If you are going to try and make an analogy about traffic, at least get your premise straight.

Before debunking his usage-based billing meme, let’s talk about road construction for a moment.  In fact, the kind of traffic volume on a roadway has everything to do with what kind of road is constructed.  In the appropriately named “Idiots’ Guide to Highway Maintenance,” C.J.Summers explores different types of road surfaces for different kinds of traffic.  Light duty roads in rural areas can get results with oil and stone.  Medium duty side streets and avenues are frequently paved with asphalt, and heavy duty interstates routinely use concrete.  Traffic studies are performed routinely to assist engineers in choosing the right material to get the job done.

Digital information doesn’t wear down cables or airwaves.  If broadband traffic occupies 5 or 95 percent of a digital pipeline, it makes no difference to the pipeline.  Jenkins is right when he says Internet Overcharging schemes are all about shaping user behavior, but for the wrong reasons.

Jenkins thinks Netflix and other high bandwidth applications face usage-based pricing to allow providers to keep their broadband pipes from getting overcongested:

Netflix is one of the companies most threatened by usage-based pricing, and it has quickly geared up a lobbying team in Washington. In a recent letter to shareholders, CEO Reed Hastings downplayed the challenge to Netflix’s video-streaming business. In the long run, he’s probably right—the market will settle on flat-rate pricing once the video-intensive user has become the average user.

In the meantime, however, Netflix shareholders had better look out.

In fact, providers are reaping the rewards of their popular broadband services, but almost uniformly are less interested in investing in them to match capacity.  It is as if the AT&Ts of this world assumed broadband users would consume    T H I S    M U C H   and that’s it — time to collect profits.  When upgrade investments don’t even keep up as a percentage of revenue earned over past years, the inevitable result will be a custom-made excuse to impose usage limits and consumption billing to manage the “data tsunami.”

Canadian providers did not slap usage caps on broadband users because Netflix arrived — they lowered them. Telling users they cannot consume the same amount of bandwidth they used a month earlier has nothing to do with managing traffic, it’s about protecting their video businesses by discouraging consumers from even contemplating using the competition.  Jenkins works for a company that understands that perfectly well.  News Corp., has a major interest in Hulu as well as satellite television services in Europe and Oceania.

The rest of Jenkins’ piece is as smug as it is wrong.  In attacking Net Neutrality supporters as “crazies” trying to defend their “hobby horse,” Jenkins claims public interest groups are pouting about usage-based billing, too:

All along, what the net neut crazies have lacked in intellectual consistency they’ve made up in fealty to the business interests of companies that fear their services would become unattractive if users had one eye on a bandwidth meter. That’s why opposition to “Internet censorship” morphed into opposition to anything that might price or allocate broadband capacity rationally. But such a stance is rapidly becoming untenable, whether the beneficiary is Google, with its advertising-based business model, or Netflix, Apple, Amazon and others who hope to capitalize on the entertainment-streaming opportunity.

All are betting heavily on the cloud. All need to start dealing realistically with the question of how the necessary bandwidth will be paid for.

Part of Jenkins’ theory calls back on his usual Google bashing — he perceives the company as a parasite stealing the resources bandwidth providers paid for, while forgetting the success of their businesses ultimately depends on content producers (who indeed pay billions for their own bandwidth) making the service interesting enough for consumers to buy.

But there is nothing rational about Jenkins’ support for Internet Overcharging.  North Americans already pay some of the highest prices in the world for the slowest service.  While providers attempt to lick the last drop of profits out of increasingly outdated networks (hello DSL!), their future strategy is less about expanding those networks and more about constraining the use of them.

Jenkins is ignorant of the fact several of Net Neutrality’s strongest proponents, Public Knowledge being a classic example, have not historically opposed usage-based pricing, much to my personal consternation.  As we’ve argued (and I submit proved), Net Neutrality and Internet Overcharging go hand in hand for revenue hungry providers.  If they cannot discriminate, throttle, or block traffic they consider to be costly to their networks, they can simply cap demand on the customer side with usage limits or confiscatory pricing designed to discourage use.  That is precisely what Canadians are fighting against.

It’s all made possible by a broken free market.  Instead of hearty competition, most North Americans endure a duopoly — a phone company and a cable company.  Both, particularly in Canada, have vested interests in video entertainment, television and cable networks, and other entertainment properties.  As long as these interests exist, companies will always resist challenges to their core business models, such as cable TV cord cutting.  It’s as simple as that.

The “realistic” way bandwidth will be paid for escapes Jenkins because his quest for condescension takes precedence over actual facts.  Content producers already pay enormous sums to bandwidth providers like Akamai, Amazon, and other cloud-based distribution centers.  Consumers pay handsomely for their broadband connections, part of which covers the costs of delivering that content to their homes and businesses.  AT&T and other providers don’t deserve to get paid twice for the same content.  Indeed, they should be investing some of their enormous profits in building a new generation of fiber-based broadband pipelines to keep their customers happy.  Because no matter how much data you cram down a glass fiber, the ‘data friction’ will never cause those cables to go down in flames, unlike Jenkins’ lapsed-from-reality arguments.