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 »

NARUC Recap: Federalist Implications of Verizon v. FCC…

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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, Continue Reading »

In Response to Mark Cooper…

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Last December, I authored a blog entitled Price, Profit, and Efficiency: Mark Cooper’s Bungled Analysis.  Using basic economics, my blog describes in detail why a report authored by Mark Cooper from the Consumer Federation of America (“CFA”) entitled Comparing Apples to Apples:  How Competitive Provider Services Outpace the Baby Bell Duopoly — Municipal Wireline and Non-Baby Bell Wireless Service Providers Deliver Products that are More Consumer-Friendly reached a conclusion that was not supported by economic theory.  Mark’s argument was that AT&T and Verizon charge higher prices and earn higher profits than do Sprint and T-Mobile and that such an outcome Continue Reading »

A Troubling New Legal Standard for Section 706…

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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 Continue Reading »

The SOPA Paradox…

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Last week marked the two-year anniversary of the (dare I say ignominious) defeat of the Stop Online Piracy Act or “SOPA.”  The defeat of SOPA marked a bit of a watershed in American politics, as the legislation was stopped not by traditional means such as a Presidential veto or even a backroom hold by a senior legislator, but by a massive grassroots up-swell (complete with self-imposed blackouts of many popular web pages) who feared a purported government takeover of the Internet.  Putting aside for the moment that a good deal of the objections to SOPA were based on sophistry and Continue Reading »