Last week, Representative Henry Waxman—the ranking Democrat on the powerful House Energy and Commerce Committee—wrote a letter to Federal Communications Chairman Tom Wheeler where he proposed a new and quite peculiar “hybrid” legal theory to support aggressive new Open Internet Rules.  Under Mr. Waxman’s three-step theory, the FCC would first reclassify broadband Internet access as a Title II common carrier telecommunications service.  Next, Mr. Waxman would have the Commission use its authority under Section 10 to forbear from nearly all of Title II—including even Section 201 (requiring “just and reasonable” rates) and Section 202 (prohibiting “unreasonable discrimination”). Finally, having dispensed with Title II yet—presumably retaining …
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Last month, Larry Spiwak and I released a paper entitled Tariffing the Internet: Pricing Implications of Classifying Broadband as a Title II Telecommunications Service. In this paper (and companion op-ed), we set out to answer a critical question—how exactly does reclassifying broadband as a Title II, common-carrier telecommunications service protect the Open Internet?  Despite the millions of comments filed in the FCC’s Open Internet Docket, this most basic question has yet to be asked much less answered.  If the Commission does reclassify, then the agency must design, implement and administer a particular set of rules that achieves the desired goal and is consistent with the …
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Yesterday, the Phoenix Center held a Teleforum to present our paper Tariffing the Internet: Pricing Implications of Classifying Broadband as a Title II Telecommunications Service and to discuss its implications with a series of experts. (We hope to post the video of the event on the Phoenix Center’s Phoenix Center’s YouTube Channel shortly.)  To summarize the paper, we show that if the Federal Communications Commission uses Title II common carrier telecommunications regulations to protect the “Open Internet,” then all edge providers (e.g., Google, Netflix, and your personal website) will be required to make direct payments to Broadband Service Providers (“BSPs” like Comcast, AT&T and Verizon) …
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Shortly after the Federal Communications Commission issued its Open Internet Order, I authored a short Perspective where I highlighted the fact that the FCC’s use of Section 706 as an independent source of authority “has introduced, perhaps inadvertently, significant questions of federalism that need to be considered.”  My observation was simple:  because Section 706 applies equally to both the FCC and to “each State Commission with regulatory jurisdiction over telecommunications services”, if the Commission can exert its jurisdiction over broadband Internet services (the authority to do so now confirmed by the D.C. Circuit in Verizon v. FCC) under Section 706, then States also have every …
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Last week, the D.C. Circuit in Verizon v. FCC issued its much-anticipated ruling on the Federal Communications Commission’s Open Internet Order.  In this decision, the court found that because the FCC had determined that broadband is not being deployed on a reasonable and timely basis to all Americans, Section 706 of the 1996 Telecommunications Act vests the agency “with affirmative authority to enact measures encouraging the deployment of broadband infrastructure” and, by extension, the power “to promulgate rules governing broadband providers’ treatment of Internet traffic.” (Slip Op. at 4.)  While the court remanded both the “no blocking” and “non-discrimination” portions of the Open Internet Order, …
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Six years ago, the Phoenix Center released (and later published) a paper entitled Network Neutrality and Foreclosing Market Exchange: A Transaction Cost Analysis.  In that paper, we analyzed the effects of network neutrality proposals that foreclose or severely limit market transactions between content providers and broadband service providers.  Our model revealed that under plausible conditions, rules that prohibit efficient commercial transactions between content and broadband service providers could, in fact, be bad for all participants: consumers would pay higher prices, the profits of the broadband service provider would decline, and the sales of Internet content providers would also decline.  As a result, such proposals would …
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Last year, we released a paper entitled Justifying the Ends:  Section 706 and the Regulation of Broadband (and forthcoming, Journal of Internet Law) where we demonstrated how the Federal Communications Commission deliberately ignored its own evidence to support expanded regulatory jurisdiction over IP-based services.  With the release of its new Measuring Broadband America Report last week, the FCC once again undermines its factual predicate for Internet regulation.  Let me explain. Over the last several years, we have seen the Federal Communications Commission put forth a rather clever argument to expand its regulatory authority over broadband services.  Under Section 706(a) of the Communications Act, the Commission …
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Over the course of the last several weeks, we at the Phoenix Center held Part I and Part II of our Annual U.S. Telecoms Symposium.  Part I, held on December 6th, focused on the impact of the recent election on U.S. broadband policy; while the more “wonky” Part II, held last week on January 3rd, focused on emerging issues in broadband policy for 2013.  As always, we had a fantastic array of speakers at both events, and the presentations were excellent.  While interested folks are welcome to watch the video of the full proceedings on-line (Part I may be viewed here; while Part II may …
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Recently, I spotted an interesting blog by Scott Wallsten at the Technology Policy Institute.  In this blog, Scott discusses the FCC’s recent decision that Verizon violated the open access rules of the 700 MHz C-Block auction by charging its customers an additional $20 per month on its data plans to tether a device.  In response, Verizon paid a fine and now allows tethering on all new data plans.  However, Scott observes that: Verizon effectively abandoned the post-paid market for light users after the FCC decision.  Verizon no longer offers individual plans.  Even consumers with only a single smartphone must purchase a shared data plan.  That’s …
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Next month, a new book entitled Captive Audience:  The Telecom Industry and Monopoly Power in the New Gilded Age (Yale University Press 2012) from Cardozo Law School Professor Susan Crawford will hit the bookshelves.  According to her publisher’s blurb, Professor Crawford’s book will examine how the United States has “created the biggest monopoly since the breakup of Standard Oil a century ago.”  But what is this “monopoly” to which Professor Crawford refers?  While the publisher’s promotional blurb is silent on this question, according to a 2010 paper authored by Professor Crawford in the Yale Law and Policy Review, it appears that she is talking about …
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