American Bankers Association Cals for Regulation of FarmVille’s Virtual Currency

It was only a matter of time before the banking industry began to ask for regulation of "social currency" and "virtual currency" as "real money" transactions are regulated.

In a letter to the Consumer Financial Protection Bureau, the American Bankers Association has asked the new Consumer Financial Protection Bureau to consider regulating virtual currencies, like those used on FarmVille and Second Life.

“We understand that in some instances virtual currencies, which were initially developed to help individuals manage virtual credits earned through online games, have also been used to pay developers of applications, and their use can be expected to expand even further,” the ABA wrote.

The move was highly predictable, and eventually, as use of social currencies and virtual currencies become mainstream, those calls for regulation will grow louder. It is hard to argue that social currency and virtual currency will not wind up more regulated than today.

Bankers want regulation of FarmVille’s "Virtual Currency"

Social Media Background Checks: Another Case of Software Industry Bumping into Regulators

Social Intelligence sells a service that allows employers to check applicant social network data as part of a hiring process. The firm was investigated by the Federal Trade Commission earlier in 2011, in part to ensure that the service complies with the Fair Credit Reporting Act to ensure that its clients let job applicants know when something that turned up in a background check had an adverse effect on their getting employed, or rather not getting employed.

The FTC has since dropped its investigation into Social Intelligence’s practices, but some U.S. Senators continue to express concern about the company's software. Social Media Background Checks

Most employers already are checking applicant profiles on Facebook, and conducting Google searches. In surveys, most employers admit that they check out applicants’ Facebook pages, blogs, and Google footprint. The issue is whether such information could ultimately be viewed as a violation of the law if the employer gains knowledge of something that can not be the basis for a hiring decision  (like religion or sexuality).

The investigation and continuing concern on the part of lawmakers illustrates the growing extent to which the software industry is bumping up against regulatory bodies that shape the industry's future. Google's risk of antitrust review, AT&T's current antitrust review and Microsoft's decade-long antitrust reviews in the United States and Europe, are examples.

Company investigated

Do not Neutralize Search Innovation, Google Argues

Google has responded to growing European Community scrutiny of Google's search algorithms in a Financial Times opinion piece. Google is right, as far as the opinion piece goes.

Algorithms embody rules that decide which information is “best”, and how to measure it, and search competitors ought to be free to sort in different ways.

Clearly defining which of any product or service is best is subjective. "Yet in our view, the notion of 'search neutrality' threatens innovation, competition and, fundamentally, your ability as a user to improve how you find information," Google VP Marissa Meyer says.

Ironically, Google does not take the same view where it comes to other partners in the Internet ecosystem, though. Fighting to retain or gain as much advantage as possible within the ecosystem is normal. The irony is that the "freedom for me, regulation for thee" stance can backfire. EC regulators might decide it is Google that requires regulation, not other participants in the value chain.

In all likelihood, the whole ecosystem would be better off with a "lighter touch" that lets clever developers and entrepreneurs, and the consumer response to new products, sort most of these issues out, most of the time.

FT.com / Comment / Opinion - Do not neutralise the web’s endless search

Google Faces More Regulatory Pressure

Google might need regulation, the New York Times seems to suggest.

Google argues that its behavior is kept in check by competitors like Yahoo or Bing. But "a case is building for some sort of oversight of the gatekeeper of the Internet," the Times writes.

In the past few months, Google has come under investigation by antitrust regulators in Europe, for example.

In the United States, Google said it expects antitrust regulators to scrutinize its $700 million purchase of the flight information software firm ITA, with which it plans to enter the online travel search market occupied by Expedia, Orbitz, Bing and others.

Not all software companies are used to such scrutiny by regulators. But Microsoft is. Apple also has come into the spotlight as well, of late. "Freedom for me, regulation for thee" doesn't always work.

Editorial - The Google Algorithm - NYTimes.com

How Regulation Can Make or Break an Internet Business

Google and Twitter have weighed in on the 'hot news' doctrine, which grants newspapers in some states a time-limited, quasi-property right over facts they report, arguing that the legal concept is old 'n' busted in the instantaneous Internet age.

The companies filed an amicus brief in the legal case between financial website theflyonthewall.com and Barclays Plc, claiming that Internet chatter cannot be contained and that restricting the spread of news content could hurt the public.

A U.S. federal judge ruled in March 2010 that a news site called "theflyonthewall.com" had misappropriated content from major analyst firms by publishing highlights of new equity research by Morgan Stanley, Barclays Plc, and Merrill Lynch.

The judge agreed that they had invested time and resources into researching the market, and that flyonthewall.com was making money off of their hard effort by offering subscriptions so that users could access The Fly's near-realtime writeups of the analysts' work.

An injunction was issued, but then flyonthewall.com asked whether it was permissible to publish information that already had appeared elsewhere, as for example news reports by Dow Jones, Reuters, Bloomberg or the Wall Street Journal.

Google and Twitter have filed briefs supporting flyonthewall.com's right to publish once the information already has been made available elsewhere on the Internet.

Google and Twitter pointed out that it's nearly impossible to implement some period of exclusivity for news when it can spread so quickly across blogs, Twitter, Facebook, and so on, and that upholding such a restriction could actually hurt the news-consuming public.

It's just another example of the decisive rule regulations and laws can have in creating or destroying a business model.

Google and Twitter pour cold water on "hot news"

Will Common Carrier Regulation Lead to De Fato Price Regulation?

The Federal Communications Commission says it has no interest in applying price controls to broadband access services. But even if formal rules are not imposed, some executives believe de facto price controls are the logical consequence of any move to regulate broadband access as a common carrier service.

At a minimum, any such rules are likely to immediately slow investment in broadband facilities for years.

The last time the Federal Communications Commission altered fundamental rules in the common carrier area,  AT&T cut annual capital spending by more than half, from $12 billion to $5 billion dollars a year. That cut lasted for four years, until the courts threw out the FCC's mandatory wholesale rules, which created pricing rules service providers found highly damaging, says Dennis Kneale, CNBC media and technology editor.

This time around, the rules might affect a wider range of industry suppliers, including cable and wireless providers, with potentially much-greater damages.

The last time the FCC tried such a major incursion, in the mid-1990s, Stephenson, then the company’s chief financial officer, cut annual capital spending by more than half, from $12 billion to $5 billion dollars a year. That cut lasted for four years, until the courts threw out the FCC mandatory wholesale rules.

Some telecom execs say the FCC’s agenda is downright radical and could thwart high hopes for the wireless Internet, arguably key to the future of the entire U.S. communications industry.

The agency assault could restack the pecking order of winners and losers and reshape their stock prices, affecting the portfolios of millions of retirees and investors as well, says Kneale.

The immediate matter at hand is a prohibition on any type of packet prioritization. But at least some telecom execs also fear this would lead to de facto price controls, primarily because inability to prioritze packets would jeopardize the effort to create enhanced and new services that provide quality of service mechanisms of the sort businesses routinely use.

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8 Liberal Groups Skeptical About Common Carrier Regulation of Broadband

Eight liberal advocacy groups signaled skepticism with a Federal Communications Commission plan for regulating broadband access as a common carrier service.

In a letter to Senate Commerce Chairman John Rockefeller (D-W.V.) and House Energy and Commerce Chairman Henry Waxman (D-Calif.), eight groups called for Congress to restore FCC authority over broadband after an April appeals court ruling appeared to undercut the commission's authority.

The Communications Workers of America, the Minority Media and Telecom Council, the International Brotherhood of Electrical Workers, the League of United Latin American Citizens, the National Urban League, the National Association for the Advancement of Colored People and the Sierra Club signed the letter.

Doubts about reclassification stem from the possibility that it could complicate the regulatory situation and lead to protracted litigation, according to CWA spokeswoman Debbie Goldman.

link

Telstra Agrees to Structural Separation

Australia will join Singapore and likely New Zealand as countries in which there is a single wholesale provider of broadband connections and all retail providers lease capacity from the wholesale provider.

Telstra Corp. essentially has agreed to break itself up into distince retail and wholesale companies as the result of a new deal with Australia’s national government. A new framework agreed upon by both the government and Telstra, essentially results in Telstra selling its network to the government-backed NBN Co, which is building the new national broadband network, and putting its customer traffic on the network as well.

The new framework, which still must be ratified by a formal contract, a "yes" vote by Telstra shareholders, and approval by regulators, will launch Telstra on a new path. It essentially will not own and operate its own fixed networks any longer. It will not be required to provide universal service.

And it likely will be a much-bigger player in the fourth-generation mobile business than it is in the fixed business.

Telstra will be paid A$9 billion as part of the deal, which remains only a framework, not a contract, which will have to be worked out over the next few months. The deal also means Telstra is free to bid on new wireless spectrum, and can keep its 50-percent stake in cable operator Foxtel.

As part of the agreement, the NBN Co. will be able to use Telstra infrastructure, including ducts and backhaul fiber, rather than building duplicate infrastructure. Telstra also agreed to transition its current customers to the NBN network, becoming an anchor tenant.

NBN Co will operate as the wholesale supplier of last resort for fiber connections in greenfield developments starting January 1, 2011.

Telstra also will be shutting down its copper ADSL network as part of the new agreement.

A new entity, USO Co Ltd, will be established to take over Telstra’s universal service obligations starting July 1, 2012.

The terms of the lease were not disclosed but sources close to the negotiations told AAP the agreement was for a period much longer than 10 years.

Telstra and the government have been at odds about the  A$43 billion "fiber-to-the-home" broadband network, and the necessity of Telstra agreeing to at least a functional serparation of its wholesale and retail operations.

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Will Reclassification Derail FCC's Broadband Plan?

Some at the top level of the Federal Communications Commission may believe a new legal framework for its authority over broadband services will help keep its ambitious National Broadband Plan afloat, but some cable industry policy pundits wonder if the move might produce the opposite effect.

The FCC's reclassification effort could 'totally sidetrack the Commission from getting some pieces of the broadband plan done,' warned Steve Morris, VP and associate general of the National Cable & Telecommunications Association.

Light Reading Cable - Broadband - Will Reclassification Derail FCC's Broadband Plan? - Telecom News Analysis

FCC Votes to Open Title II Reclassification for Broadband Access

The U.S. Federal Communications Commission has taken the first step toward imposing limited regulations on broadband providers by voting Thursday to launch a notice of inquiry exploring the change.

The commission voted three to two to launch the notice of inquiry, which asks for public comment on a proposal by FCC Chairman Julius Genachowski to reclassify broadband as a common-carrier regulated service. It might be an expensive proposition, if the FCC proceeds.

Proposed regulation of high-speed Internet service as a "common carrier" service could cost the U.S. economy at least $62 billion annually over the next five years--a total of $310 billion--and eliminate 502,000 jobs, according to a study released by the Advanced Communications Law & Policy Institute at New York University Law School.

The report estimates that broadband providers and related industries may cut their investments by 10 percent to 30 percent from 2010 to 2015 in response to additional regulation.

At at 30 percent reduction in investment, the economy might sustain an $80 billion hit, according to Charles Davidson, director of the law school's Advanced Communications Law & Policy Institute.

"There will be follow-on effects in the whole ecosystem," said Bret Swanson, president of technology researcher Entropy Economics in Zionsville, Ind., who co-authored the study with Davidson. "A diminution of investment by the big infrastructure companies will reduce network capacity, new services, and investment by all the ecosystem companies."

These investments would spur capital expenditures by others in the ecosystem. A five-percent incremental increase in capital expenditures by the rest of the  ecosystem companies could boost investment by approximately $18 billion per year between 2010 and 2015--about $90 billion over five years--and yield an additional 450,000 jobs created or sustained.

One might ask whether it makes sense to place further burdens on a business whose revenue steadily is declining as a percentage of total end-user communications spending. It wouldn't be the first time the FCC or Congress has moved to essentially disrupt industry structure in hopes of spurring higher consumer welfare.

In the Telecommunications Act of 1996, voice services were liberalized. What nobody apparently anticipated is that wireline voice would suddenly reach its zenith, and begin a long, steady decline. The background assumption was that the business was a "growth" business, rather than a "declining" business. But common sense suggests that different policies are needed when a business is shrinking, than when it is growing, when a business can grow faster because of more competition and when it will simply decline faster because of new constraints. $310 Billion Economic Loss, Over 5 Years if Title II Rules are Imposed

AT&T Issues First Warning About Common Carrier Regulation

The great danger of the Federal Communications Commission's drive to regulate broadband access as a common carrier service is that it will choke off investment that is needed if we are to get the 100-Mbps network the FCC says it wants to see built.

Now AT&T has fired the first warning shot, saying it will reevaluate spending on its broadband access networks if the Federal Communications Commission decides to regulate broadband access as a common carrier service, the Wall Street Journal reports.

The warning can hardly come as a surprise. Both policy advocates and financial analysts already have warned that a capital strike is precisely what will happen if Title II regulations are imposed on broadband access.

"We would expect a profoundly negative impact on capital investment," warns Stanford Bernstein analyst Craig Moffett in a research note to clients.  "The only potential winners are the satellite providers, DirecTV and Dish Network, for whom incremental broadband regulation would dramatically reduce the risk of competitive foreclosure in the video business at the hands of bottleneck broadband providers," he says.

Former FCC Commissioner Harold Furchgott-Roth says the Federal Communications Commission's drive to reclassify broadband access as a common carrier service is "reckless" and "risky," will lead to a dampening of investment in networks, years of legal challenge and replaces an investment climate with a "casino" environment.

Of course, the drive to regulate broadband access as a common carrier service, despite being described as a targeted "third way" between unregulated information services and regulated common carrier services can be no such thing. The service either is an unregulated data service or it is a common carrier service under Title II. There is no permanent middle ground, as the FCC can later apply virtually any Title II common carrier obligations if it so desires, once the change is made.

In fact, the FCC's latest effort is the fourth time the FCC has launched inquiries into the status of information services, concluding three times before (Computer Inquiry I, II and III) that information or enhanced services are in fact to remain unregulated.

"The uncertainty the proposal creates will create a dampening effect on investment in the broadband business,"
says Furchgott-Roth, former FCC commissioner. Companies aren't sure what will happen and will delay
investment until there is certainty, he says.

If the FCC proceeds, and succeeds, "things will be tied up in courts for years an investors will gravitate to areas with greater certainty and opportunity for profit.

"There is a very clear correlation between certainty and investment," says Furchgott-Roth. "Unfortunately, both regulation and uncertainty is where we appear to be headed."

Some policy advocates will dismiss the AT&T threat as bluffing. "If this Title II regulation looks imminent, we have to reevaluate whether we put shovels in the ground," AT&T Chief Executive Randall Stephenson says, according to the Wall Street Journal.

AT&T could cut back spending on its U-Verse home television and Internet service, a move that would damage the FCC's other initiatives to spur more-rapid broadband adoption, at speeds up to 100 Mbps, for 100 million U.S. households.

U-verse service based on AT&T's fiber-to-curb archtiecture now is available to 24 million homes, and AT&T has a target of making it available to 30 million by the end of 2011. But AT&T warns that those plans could grind to a halt if common carrier changes the economics of fiber plant upgrades, which many observers believe is likely.

The reason is simple: common carrier regulation, even if touted as initially having a "light touch," would reverse decades of policymaking in the data services business and give the FCC ability to apply price regulations and wholesale obligations with mandatory pricing. The last time the FCC did that, in the wake of the Telecom Act of 1996, carriers put the brakes on new investment. In fact, Verizon did not begin its aggressive FiOS build until price controls were lifted.

Though the FCC says it won't invoke the most onerous Title II rules, such as regulating pricing, telecom companies worries that posture could be changed easily. And why wouldn't they?

"I'm a 3-2 vote away from the next guy coming in and saying I disagree with that, I take it away," Mr. Stephenson says.

If the FCC is counting on private capital to build the 100-Mbps new networks, and it is, then the drive to impose common carrier regulations virtually everyone expects will dry up investment is an unwise move. Whether the FCC understands this any better than it did in 1996 is questionable.

73 Democrats tell FCC to Drop Title II Gambit

73 House Democrats have sent a letter to the Federal Communications Commission warning the agency not to go forward with its plan to partially reclassify ISPs as common carriers, a move needed to impose net neutrality rules.

'The uncertainty this proposal creates will jeopardize jobs and deter needed investment for years to come,' wrote Texas Congressman Gene Green. 'The significant regulatory impact of reclassifying broadband service is not something that should be taken lightly and should not be done without additional direction from Congress.'"

Common carrier regulation in the U.S. communications business historically has been good for coverage, bad for innovation. It was good for quality but bad for prices.

Whether common carrier regulation would have the same impact on broadband and innovation in the broadband business is the question

73 Democrats tell FCC: drop net neutrality rules

2010: A Turning Point for Telecom?

Watch the Webinar

Some years in telecommunications are pivotal: 1934, 1982, 1996 and 2000, for example, set into motion huge changes that fundamentally shaped the entire industry in transformative ways. Will 2010 prove to be a pivotal year? It might be. One can easily foresee that regulatory frameworks such as "network neutrality" and the "national broadband plan," could affect business models for years to come.

But those are not the only changes. There are new 4G wireless networks coming on line that could, for the first time, drive mobile broadband substitution as smartphone penetration grows from 15% to 50%. Beyond that, questions linger on how consumer behavior was shaped by the "great recession" and if these changes in buying behavior are permanent.

This webinar takes a look at all those questions and discuss possible implications. When the regulatory environment, business models, fundamental technologies and end user demand curves all at change at once, transformative and historical changes are likely.

Does Intense Price Competition Drive U.S. Wireless Industry Concentration?

Can price and other forms of competition beneficial for users still occur when markets are highly concentrated? Yes, say Jerry B. Duvall and George S. Ford of the Phoenix Center for Advanced Legal and Economic Public Policy Studies. The question now matters, once again, as the Federal Communications Commission seems to be hinting it thinks the U.S. wireless market is growing unduly concentrated.

The important observation is that, in some markets, even high levels of supplier concentration do not preclude important, even robust levels of competition, on price, quality and other dimensions.

When analyzing levels of competition in a market, economists often, and rationally,  infer it from the level of industry concentration, where higher levels of concentration indicate the presence of market power. But industry concentration is related to the size of a market as well as high sunk costs or intense price competition, or some combination.

High industry concentration can be the result of a limited market or high fixed costs, as for a water, electricity or wastewater system, for example, all cases where fixed costs are so that facilities-based competition is not possible.

In some other markets, high capital investment requirements can create huge barriers to entry. Where that barrier exists, even when competition increases because of new entrants in a market, market concentration could still increase, even in the face of price competition. Market concentration appears to reach a lower bound, despite continuing growth in the size of the market.

It is possible that the apparent lower bound on market concentration could reflect economic and technological constraints that continuing growth in the number of competitors will not, and cannot, affect. In other words, some markets might always feature few competitors, for logical reasons. Few today would agree that telecommunications is a natural monopoly. But neither would many agree that the number of facilities-based contestants can be a large number.

The video entertainment market is less price competitive than the broadband access, fixed voice or wireless markets, but perhaps not because the number of competitors is notably less.

The implication is that telecommunications market structure will always be relatively concentrated compared to industries where entry does not require substantial upfront capital costs.

The relationship between the number of firms and market power, where market power is defined as the ability of firms to price above marginal cost, implies that that some communications firms will now, and in the future, possess some degree of market power, Duvall and Ford say. Competition will not be "perfect," but rather workable.

Still, there is an important observation: tthe more intense is price competition the higher is industry concentration. The typical view of competition has price competition increasing with declines in industry concentration. In other words, the more firms in a market, the more “competitive” that market is.

The implication is that high concentration can be the result of intense price competition, rather than market defects.

In the summer of 2000, the proposed merger of MCI-WorldCom and Sprint was abandoned due to the
challenge of the merger by antitrust authorities. In retrospect, one can note that faulty conclusions were drawn from incomplete analysis. Market power in the long distance industry actually was illusory. Even strong industry concentration did not actually imply serious market power, as price competition, for example, was intense.

The obvious implication is that high levels of wireless industry concentration do not preclude or foreclose robust levels of competition. In fact, robust competition causes industry concentration. See http://www.phoenix-center.org/pcpp/PCPP10Final.pdf, for example.

FCC Title II Push is "Reckless," "Risky" and Will Create a "Casino" Environment

Mincing no words, former FCC Commissioner Harold Furchgott-Roth says the Federal Communications Commission's drive to reclassify broadband access as a common carrier service is "reckless" and "risky," will lead to a dampening of investment in networks, years of legal challenge and replaces an investment climate with a "casino" environment.

Of course, the drive to regulate broadband access as a common carrier service, despite being described as a targeted "third way" between unregulated information services and regulated common carrier services can be no such thing. The service either is an unregulated data service or it is a common carrier service under Title II. There is no permanent middle ground, as the FCC can later apply virtually any Title II common carrier obligations if it so desires, once the change is made.

In fact, the FCC's latest effort is the fourth time the FCC has launched inquiries into the status of information services, concluding three times before (Computer Inquiry I, II and III) that information or enhanced services are in fact to remain unregulated.

In light of those decisions, one has to ask: is broadband Internet access a separable telecommunications service plus a separate information service including processing, storage, retrieval, or a single integrated information service that uses telecommunications? If broadband access is deemed to be the former, the FCC might try to regulate some parts of the "access" service under Title II. If broadband access is seen to be the latter, then the current information services classification logically remains in place.

That's the chief problem with the Federal Communications Commission's effort to find some "third way" as it seeks

to impose Title II regulation for the first time, on broadband access services, says Russell Hanser, an attorney at

Wilkinson, Barker & Knauer.

"The uncertainty the proposal creates will create a dampening effect on investment in the broadband business,"

says Harold Furchgott-Roth, former FCC commissioner. Companies aren't sure what will happen and will delay

investment until there is certainty, he says.

The FCC's proposal simply is not conducive to investment, he says. "This is risky," he adds. It "puts businesses at

risk of making decisions they can't be certain about."

Years of litigation are certain to follow if the rules are put into place, Furchgott-Roth says. "The problem is that the proposal is not clear or narrow," and that is the sort of FCC decision that tends to clearly withstand legal challenge," he adds. "Anybody who talks to investors knows how much investors got burned 10 years ago based on faulty interpretations of rules," he says. "This is a casino environment."

If the FCC proceeds, and succeeds, "things will be tied up in courts for years an investors will gravitate to areas with greater certainty and opportunity for profit."

One might argue that means overseas investments will make more sense, or that investments in wireless will make more sense. But the FCC also seems to leaning towards regulating mobile providers more intensely than it already does, arguing that industry concentration is growing.

"There is a very clear correlation between certainty and investment," says Furchgott-Roth. "Unfortunately, both regulation and uncertainty is where we appear to be headed."

Will the "Bell System" Survive?

"Will the Bell system survive?" asks Allan Ramsay. He argues that a "massive transfer of wealth from Bell to VoIP is underway." We can disagree about how large the wealth transfer is, what VoIP is, or whether voice is on its way to becoming a feature, and not a revenue driver at all. 


It is not a question the Federal Communications Commission appears to think relevant, though. 

Will the Bell System Survive? A Massive Transfer of Wealth from Bell to VoIP is Underway - MumbaiHunGama Info Articles:

What Does "Effective Competition" Actually Look Like?

The U.S. Federal Communications Commission seems to be implying that U.S. wireless markets are "not competitive," though the inference is hard to glean from the FCC's own study on the U.S. wireless market. See the document at (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-81A1.pdf)

What "effective competition" looks like varies from market to market, from economist to economist. How many competitors a market must have to be deemed "competitive" is in this case a political question, not an economist's question, though.

There are some businesses where there is no "effective competition" because the market has "natural monopoly" characteristics. You can think of electrical power, waste water, highways and roads (generally speaking), water systems and national defense as clear examples.

Telecommunications once was deemed to be a "natural monopoly," but most regulators around the world now agree that is true only in part. In triple-play markets, for example, effective competition, but not "perfect" competition can occur, in an economic sense, with as few as two players, even though the U.S. market has many more than that in major metro markets, and typically at least two providers even in the rural markets.

In the real world, there are very few examples of major facilities-based competition beyond two major players, although in a few markets there are three facilities-based fixed line providers. As researchers at the Phoenix Center have suggested, in the fixed line triple play markets, imperfect though workable competition does in fact exist with one one dominant telco and one dominant cable provider. 


See http://www.phoenix-center.org/FordWirelessTestimonyMay2009%20Final.pdf, or http://www.phoenix-center.org/pcpp/PCPP12.pdf or www.phoenix-center.org/PolicyBulletin/PCPB11Final.doc.

The problem is what the level of effective competition actually is in the communications market. Presumably the FCC believes three to five competitors in a single market is not enough.

U.S. fails to describe wireless industry as competitive - Yahoo! News

"Third Way?" Between Title I and Title II? Are you "Sorta Pregnant?"

One might argue that there's nothing wrong with the Federal Communications Commission trying to find some "middle way" or "third way" between common carrier and data services regulation. FCC Chairman Julius Genachowski, for example, notes that "heavy-handed prescriptive regulation can chill investment and innovation, and a do-nothing approach can leave consumers unprotected and competition unpromoted, which itself would ultimately lead to reduced investment and innovation."

Nor are many likely to disagree completely with the notion that "consumers do need basic protection against anticompetitive or otherwise unreasonable conduct by companies providing the broadband access service."

Likewise, most probably would agree that "FCC policies should not include regulating Internet content, constraining reasonable network management practices of broadband providers, or stifling new business models or managed services that are pro-consumer and foster innovation and competition."

But there is likely to be fierce disagreement about the proposal to regulate broadband access service as a common carrier offering governed by Title II regulations, even though the chairman says the FCC would "forebear" (not impose) all of the obligations and rules that cover Title II services.

The difference is that right now, the government "may not" regulate terms and conditions of service. Under the proposed rules, the government only says it "has the right to do so, but voluntarily agrees not to" impose such rules. There is a vast difference between those two approaches.

The first is a clear "thout shalt not" injunction; the new framework is only a "we promise not to" framework. The chairman argues that this new approach "would not give the FCC greater authority than
the Commission was understood to have" before the "Comcast v. FCC" case.

A reasonable person would find that hard to believe. Moving any service or application from Title I to Title II has unambiguous meaning. One can agree or disagree with the change. One can hardly call this a "reassertion of the status quo." Between Title I and Title II there is a gulf that would have to be crossed. Never before have any Internet services been considered "common carrier."

A mere promise not to act, after the change has been made, will hardly satisfy those who believe Title I is the better framework. Those who believe Title II is the better way to regulate likely will find the proposal satisfying. That would be reason enough to suggest it is not a "third way." There is in fact no third way, except for the Congress to direct the FCC to regulate broadband access as a Title II service.

The problem is that what the "service" is changes over time, making difficult the task of clearly separating what "access" is from what an enhanced feature is. Nor is it easy to differentiate between a "business" access and a "consumer" access. If business access is covered, is packet shaping still permissible? Are quality of service measures still permissible? Are virtual private networks still allowed?

Should consumer services acquire the richness of business services, or should business services be dumbed down to consumer grade? And who gets to decide? Even if one is willing to accept that an ISP cannot, on its own, provide any quality of service measures, can a customer request them? Can a customer demand them?

These are tough questions and there must be scores more people could ask. The problem is that the Title I and Title II frameworks are binary. We do have alternate models in Titles III and VI, as I recall, though I suppose both of those titles would provide more freedom, not less, and Title II is a move in the direction of less freedom.

read it here

FCC Goes for "Tactical" Nukes in Net Neutrality Fight; ISPs Will React as Though "Strategic" Weapons will Ultimately be Used

Federal Communications Commission officials seem well enough aware that proposed new "network neutrality" rules could lead to a reduction of investment in broadband facilities, which is why, reports the the Wall Street Journal, FCC officials are briefing market analysts who cover cable and telco equities before the market opens on Thursday, May 6.

The fear is that even before the rules have been announced, financial analysts will issue downgrades of cable and telco stocks as future revenue streams are jeopardized. Those analyst briefings will happen even before other FCC officials or congressional members are told how the FCC plans to proceed.

Chairman Julius Genachowski apparently plans to circulate a notice of inquiry to other FCC board members next week on his plans to reclassify broadband Internet access, provided by cable or telco providers, as common carrier services under Title II of the Communications Act.

That would put cable companies under common carrier regulation for the first time, something cable industry executives always have opposed, and will fight. Telco executives are hardly any more likely to support the changes.

The problem with the FCC's approach, which is to apply "some" Title II rules, but not all, is that there are no protections from future action that would simply apply all common carrier rules. The FCC wants to believe it can leave ISPs "sort of pregnant." They either are, or aren't, and can be expected to fight as though the outcomes were binary.

As often is the case, a natural desire for a "third way" is not possible. Title I or Title II is the issue. Forbearance rules or not, one or the other is going to apply. Get ready for war.

FCC Will Try to Apply Some Title II Rules to Broadband Access

Federal Communications Commission Chairman Julius Genachowski reportedly has decided to attempt Title II regulation of broadband access services, according to a report by the Wall Street Journal, despite some other reports that he was leaning against such rules.

We should know more on Thursday, May 6. Apparently the FCC will try to thread a camel through a needle, regulating only some parts of  broadband access using Title II rules, without applying every Title II provision that applies to voice services.

It does not appear the chairman will propose new wholesale access rules, but it isn't clear whether strict rules about packet non-discrimination will be sought, theoretically barring quality-of-service features from being offered. That seems unlikely, but much will depend on whether industry participants think the actual new rules open the way for further rules, down the road, that would be highly unacceptable, even if the new immediate rules are not viewed as burdensome. We shall see.