Mr. Wheeler Agrees: It’s The “Termination Market”…

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Last Friday, the Wall Street Journal provided a peek at Federal Communications Commission Chairman Tom Wheeler’s latest plan for net neutrality.  Under the reported plan, the Chairman intends to divide the two-sided broadband market into its components—a retail and a termination service—and then reclassify the termination service as a Title II common carrier telecommunications service but leave retail services as a mostly unregulated Title I information service. As the Journal’s article states, The plan now under consideration would separate broadband into two distinct services: a retail one, in which consumers would pay broadband providers for Internet access; and a back-end Continue Reading »

Title II Reclassification and the Price Regulation of Retail Broadband Services…

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Last month, Larry Spiwak and I published a paper entitled Tariffing the Internet: Pricing Implications of Classifying Broadband as a Title II Telecommunications Service in which we outlined how the reclassification of broadband as a Title II telecommunications service would work in practice. (See Larry’s Op-Ed for a condensed version.) Since net neutrality seems aimed at prohibiting “paid prioritization,” we concluded that reclassification must lead to a positively-priced and tariffed termination service. That is, edge providers will be required to pay broadband providers to terminate their traffic. Today, they do not. No one has yet to make any reasonable argument Continue Reading »

The Problems With Henry Waxman’s “Hybrid” Legal Theory…

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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 Continue Reading »

Tariffing the Internet: A Response to Harold Feld…

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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 Continue Reading »

An Epiphany at Free Press on Reclassification?

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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” Continue Reading »

The FCC Can’t Use Section 706 to Preempt State Laws Prohibiting Municipal Broadband…

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Ten years ago, the United States Supreme Court held in Nixon v. Missouri Municipal League that the Federal Communications Commission (“FCC”) may not use its authority under Section 253 of the Communications Act to preempt state laws which restrict or prohibit municipal broadband deployment.  Despite this defeat, proponents of municipal broadband have spent the last decade trying to find an alternative legal theory and, with the D.C. Circuit’s recent ruling in Verizon v. FCC, believe they now may have finally found one—namely, the FCC’s new-found authority in Section 706(a) of the Communications Act.  Section 706(a) states that the agency may Continue Reading »

A Helluva Game of Chicken…

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As most of you know, the FCC will implement its first-ever incentive auction for wireless spectrum. In this auction, television broadcasters will (hopefully) offer for sale—and wireless carriers (among others) will offer to buy—spectrum in the 600 MHz band. The FCC will serve as the auctioneer. It’s all voluntary. How much spectrum gets traded depends on the prices offered by the wireless industry and the prices required by the broadcasters. Ideally, the auction will transfer a significant amount of spectrum to the mobile wireless industry and generate lots of revenue with which to buy stuff (like a new public safety Continue Reading »

Should the Government Allow Further Consolidation in the U.S. Mobile Market?

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Late last year I had the pleasure of participating in an event on Spectrum Auctions put together by the New America Foundation.  I’ve blogged about the event before, but when it was recently reported that T-Mobile’s CFO, Braxton Carter, stated that consolidation in the mobile wireless sector was inevitable (“It’s not a question of if, it is a question of when”), I was reminded of an interesting anecdote provided by one of the event’s other participants—former FCC Chairman Reed Hundt.     Specifically, Chairman Hundt was recounting his experience in designing and implementing the first PCS spectrum auctions back in the Continue Reading »

A Quick Primer on the FCC’s “Public Interest” Merger Review Authority…

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As we all know by now, Comcast announced that it would be acquiring Time Warner in a deal worth about $45.2 billion.  Given the high profile of this acquisition, I thought I would use this opportunity to highlight once again the ample case law on the bounds of the Federal Communications Commission’s “public interest” merger review authority.  (For a full exegesis, please see my law review Separating Politics from Policy in FCC Merger Reviews: A Basic Legal Primer of The “Public Interest” Standard, 18 CommLaw Conspectus 329 (2010) which is available on the Phoenix Center’s webpage here.) First, FCC merger Continue Reading »

Finally Moving from Words to Action on the IP Transition…

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For over a year, momentum has been building for the Federal Communications Commission to establish a series of wire center trials to test exactly how an all-IP world might work.  To FCC Chairman Tom Wheeler’s credit, last January the agency issued a formal IP Transition Trial Order outlining exactly what it wants to see in these trials, and yesterday AT&T took up the challenge by filing the inaugural test proposal.  Overall, I was impressed with the IP Transition Trial Order—it was written with a professionalism that has largely been absent from the Commission in recent years.  Like most FCC orders, Continue Reading »