In all the hoo ha about the Comcast/NBCU Merger, few folks troubled to read the Department of Justice Competitive Impact Statement, Complaint, and Consent Decree. That’s rather unfortunate, as these documents sets forth a straightforward case under the antitrust laws for program access conditions for online competitors and for network neutrality. Here’s the short version:  Comcast pre-merger makes almost 30 times more money from providing cable service than from programming revenues. Even adding all of NBCU’s revenue, Comcast will still make more than twice as much from selling cable service ($34 billion) as from programming ($16.9 billion).

“The first step in recovery is admitting you have a problem.” So goes the self-help cliché. For regulatory agencies, the first step is admitting that industry has a problem and that the wonderful happy world of the unregulated market – no matter how wildly competitive it might or might not be – doesn’t always protect consumers and that in fact, sometimes, free market dogma to the contrary, you actually reach the best result for everyone by having government set basic rules of disclosure and enforcement (the classic paper on this being economist George Akerlof’s oft-cited “The Market For Lemons.” The recent experience with the meltdown of the financial services sector and its ongoing tribulations provide rather vivid proof that “trusting the market” and waiting for “proof of a problem.”

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p class="MsoNormalCxSpFirst" style="margin: auto 0in;">For several years now, without unilateral amends by the company, or intervention by the FCC, Verizon Wireless, has profited handsomely when subscribers push a wrong button on their handsets and unintentionally access the Internet.  15 million subscribers initiated data sessions generating over $90 million in revenues for Verizon.  The revenue number is so high, because many handsets offer one button Internet access and even a few seconds of access generated a $1.99 fee as data users, lacking a monthly plan, trigger a per Megabyte fee regardless of whether only a few bytes got transmitted.  See  <

I hope someone made a videotape of my debate with Ray Gifford at NARUC. For my money, it provided the most succinct and straightforward framework for arguing about FCC broadband authority and where we ought to go from here. Ray framed it quite well as a conflict in vision between a classic Progressive Era philosophy and “economic analytics.” While I’m willing to debate in the economic analytics world (the two are not mutually exclusive, and economics informs progressive philosophy as much as concerns about public safety and consumer protection inform economic analytics), I think this makes a fairly good framework for how to approach these issues. Indeed, as a result of framing this as a difference in worldview, we avoided a lot of the acrimony and repetition that usually defines these debates.

The faux populist group Americans For Prosperity has been running ads against network neutrality in Mike Doyle’s (D-PA) district in Pittsburgh. Doyle’s response? A letter to FCC Chairman Genachowski telling him to ignore faux populist FUD from AFP, hold firm, and move full speed ahead to protect consumers while Congress takes up the work of updating the Communications Act for a more comprehensive approach.

With the FCC and most government actors obsessed with incentive creation, it makes sense to determine whether and how a regulatory or deregulatory action causes some desired outcome.  Consider the creation of incentives to invest in physical plant.  Incumbent carriers have spent a lot of time, money and effort arguing that regulation creates investment disincentives and deregulation does the desired opposite.  This simplistic and not always correct premise constitutes the prevailing wisdom in the U.S.

When the D.C. Circuit Court of Appeals called into question the FCC's ability to protect broadband users earlier this month, the ongoing debate about the legal classification of broadband services took on a new urgency. While we've argued that the Commission should waste no time in reclassifying broadband as a "telecommunications" (Title II) service, others have suggested that no action from the Commission is necessary, seeing how Comcast's blocking of BitTorrent was an isolated act that no other ISP is likely to emulate. As if on cue, cable provider RCN has provided us with a timely reminder that Comcast isn't the only ISP that has stood accused of blocking its users' traffic. In a proposed settlement for a suit brought against the ISP for throttling its users' peer-to-peer traffic, RCN is not only not held accountable for its actions, it's also not prohibited from using similar network management techniques in the future. As this series of events demonstrates, if we're going to rely on the ISPs to self-regulate, we might as well kiss the open Internet goodbye.  

So now we’ve had National Broadband Plan Day!. And, despite undeniable flaws and places where the Plan Drafters wussed out/”avoided controversy,” The Plan looks pretty damn good, actually.

Let me stress that: Pretty . . . Damn . . . Good!