Since mid-May reports have circulated that FCC Chairman Tom Wheeler is under such immense pressure from the Left to regulate the Internet via FDR-era rules that he’s about to squirt out a diamond from one of his orifices. Consequently, to reduce some of that pressure, especially as the Net Neutrality comment period deadline approaches, he’s gone out of his way to assure the Left that he’s really looking under the hood on the issue to make sure Google, er, consumers don’t get screwed by the “duopoly” broadband providers. And, you know, the resulting rule is going to be bad-ass tough on them.

He wants everyone to know that. Really.

But, lordy, for all his talk of late to clarify what this means, I’m just as confused as ever (maybe that’s the point).   So, I have five questions I’d love to hear Tom Wheeler answer to clear up the messaging mess he’s created.

Dear Chairman Wheeler:

1.  Some groups – like Free Press and EFF – believe that the FCC can “simply” reclassify information services as telecommunications services, thus allowing Title II POTS regulation of broadband providers. They believe further that the Commission can easily forbear from numerous Title II  provisions if it so wishes, thereby minimizing the law’s spread, and thus mooting from a political standpoint its potentially deleterious effect on the entire ecosystem. At the same time, the Commission has seemingly concluded that broadband providers are “terminating monopolies,” with you yourself saying last week that “meaningful competition” does not exist for these services. How, then, can the FCC forbear from any provisions of Title II when forbearance only works where competition exists – competition which you imply is plainly absent for wired broadband providers? Is this forbearance dance a chimera designed to get the FCC into the full metal jacket of Title II?

2.  What limits the FCC from using its 706 or Title II authority to regulate beyond broadband providers, to companies like Google, Facebook, Netflix, or even the average end user? Isn’t that the real aim of Net Neutrality – that is, getting the camel’s nose into the regulatory tent so that the Commission can someday regulate the medium much as it does with radio and TV?

3.  In one breath you praise the competitive zeal of the wireless industry. That the FCC and DoJ helped protect the industry’s competitive well-being by thwarting various mergers. That it’s the envy of the world in terms of technology, innovation and investment. That whole new competitive industries have been born as a result. Yet in another breath you seem to believe that Net Neutrality rules should apply.  So, what is it – is the market competitive, or is it not?  And if it is, how is the full version of Net Neutrality justified for these competitive services?

4.  You say that wireless is an “important pathway to the Internet” for many Americans. That it’s perhaps important enough to impose Net Neutrality rules. That “mobile first” (i.e., mobile trumps fixed broadband) espoused by numerous Internet edge companies is what’s driving the marketplace.  Yet you then decry that mobile broadband is not a “full substitute” to wired broadband. That it’s somehow a lesser technology, and always will be.  But, isn’t the broadband market just one market – one not arbitrarily broken into “better” and “lesser” technologies? Doesn’t consumer choice indicate as much?  If so, shouldn’t that take you out of the job of regulating because all these flavors of broadband abound, clearly revealing that the marketplace is healthy and doesn’t merit Net Neutrality (or other) regulation to serve consumers?

5.  All lawyer wiggle-words aside, isn’t the real trigger for Internet / Net Neutrality regulation something like, “I’m going to regulate whatever I want until SCOTUS or Congress, or both, specifically shut this racket down. Until then, hasta la vista, baby! Come and get me if you can.”? Stated differently, even when the competition you’ve protected or “created” (as in the wireless broadband space) still demands Net Neutrality regulation, isn’t this “standard” no better and arbitrary as “I know it when I see it”?  As you noted last week, “The work of the Commission to implement this Agenda will never be done.” I’ll say.  Beholden to no check on authority, doesn’t this more nearly approach tyranny than adherence to the rule of law / due process?

 Chairman Wheeler, thank you for your prompt attention to these important questions. Comments are due September 15; Reply Comments due September 21.

Sincerely, Mike Wendy – MediaFreedom


Progressive-oriented Sunlight Foundation came out with a deep-dive of the approximately one million Net Neutrality rulemaking comments sent to the FCC in July. In its new study, Sunlight asks: “What can we learn from 800,00 public comments on the FCC’s net neutrality plan?”

Well, of the 800,000 comments it examined, Sunlight estimates that fewer than 600 came from “experts” / or those who actually penned comments longer than 200 words.

Perhaps more interesting, Sunlight also found that at least 60% of all the comments they looked at came from just 20 letter writing campaigns and their pre-formatted letters. These “filings,” which all pretty much repeat the same pro-Net Neutrality memes, are essentially blackbox, e-mailed robo-comments. Nice sounding groups like Free Press, Public Knowledge and EFF (which, not surprisingly, also take funding from many of the same pro-Net Neutrality funders as Sunlight does) directed the “grassroots” campaigns, and were largely responsible for placing the robo-comments at the FCC in the rulemaking.

Since the mid-2000’s, this blunt force tactic has been a tool of the Left to show “real consensus” has emerged on any given public policy matter.   I’ve long been skeptical about robo-comments, and have written about this in the past – that is, the FCC’s porous comment-taking process, which “considers” all comments it gets in some manner, but which is also ripe for gaming.

As I noted three years ago (here):

“All it takes is a well-organized group with a large membership base like Free Press to automate comment submissions, and then through the quick accumulation of comments, you have an idea– i.e., ‘Consumers overwhelmingly say X, Y, Z on…’ – become ‘truth,’ amplified by ‘horse-race’ press reports, Google searches and blogs…

The tactic is designed to deceive, not illuminate. And, in that same blog post three years ago, I posited this:

“…If the technique isn’t credible, then any assumptions built on that can’t be either. Consequently, web submissions, though part of the ‘open government’ movement, should be taken with a grain of salt. Sure, the comments of thousands of ‘average citizens’ look impressive for news headlines and blogs. But looks can be deceiving.  When you peer into the numbers, one often finds ‘truths’ peddled by well-organized special interests with agendas, and nothing more.”

To be sure, the FCC can’t control the comments sent to it. Still, it has a duty to maintain the integrity of its decision-making by ensuring its processes are fair, open and transparent. The FCC would do well to break out its salt-shaker, helping all understand the real probative value of robo-comments in the rulemaking process (whatever that value is, or isn’t).

Will that happen, especially when the robo-comments seemingly “justify” the FCC’s own plans for “real” Net Neutrality?

It must. An independent, expert agency like the FCC should be guided by the experts, not by tainted comments written with dark-money. The public interest, and the creation of sound public policy, deserve no less.


In late July, Chattanooga broadband provider, EPB, and the City of Wilson, North Carolina, asked the FCC to preempt their state laws, which limit where they can serve customers. This matter was put up for public comment by the FCC, and MediaFreedom filed the attached comments with the agency on Friday.

In this filing, we urge the FCC to reject the request of EPB and the City of Wilson because:

  • The FCC lacks the authority to preempt such state laws;
  • The states have a constitutional right to protect taxpayers by limiting muni-provided broadband;
  • Muni-provided broadband runs contrary to the pro-competition goals of the Communications Act;
  • The FCC can effectuate the rollout of broadband in a less constitutionally offensive manner, with present authority and regulatory reforms; and
  • Government’s spotty IT track record urges caution for the FCC in promoting government-provided broadband.



On July 24, 2014, the Electric Power Board of Chattanooga, Tennessee, and the City of Wilson, North Carolina (herein Petitioners) filed petitions asking that the Federal Communications Commission preempt pursuant to Section 706 of the Telecommunications Act of 1996 (‘96 Act) portions of Tennessee and North Carolina state statutes, which limit their ability to provide broadband services. On July 28, 2014, the FCC established a pleading cycle for these proceedings, putting the matter out for public comment. MediaFreedom[1] believes the FCC lacks the proper authority to preempt state law as urged, and thus respectfully asks that the Commission reject the Petitioners’ request.

MediaFreedom would like to briefly outline its core concerns on the present proceeding: [click to continue…]


As we approach the final phase in the FCC’s third attempt to create a legally viable Net Neutrality rule, the anti-property groups pushing for “real” / “simple” Net Neutrality have expressed near hysterical support for the idea that the only way to protect the open web from “evil” ISPs is to ensure that they are regulated like public utilities.  Through FDR-era Title II regulation.  And lots of it.

I guess they believe that public utilities – like water, gas, electricity, and our streets – have been the paradigm of growth and innovation?

Sure they are.

You know, U.S. Broadband gets two times better every three years, with no increase in price.  Can those utilities do that?  Umm, no.

Why?  Because they’re regulated to death.  There’s no incentive for them to do it.

Hopefully the FCC can see this, and avoid the catastrophic hit to our way of life if it were to make private ISPs public utilities by imposing Title II on them.  Such a move would kill the web’s vibrance by neutering the very companies the ecosystem depends upon to deliver its services.  (And, of course, the regulation would eventually go further – well beyond policing just ISPs – because that is the nature of regulation.)

Still, it remains unclear where the final rule – which has taken over 10 years to produce – will end up.

Innovating at government speed is a mess.  Pretty much always.

A shot I took yesterday of a newly constructed, two-mile piece of road here in Virginia, though seemingly off-point, is illustrative of this point.  When 9-11 occurred, a street which this road replaced was closed for security reasons.  From the very moment it was blocked 13 years ago, the local community demanded an alternative route.

Utility Road Service1

13 years later, moving at the speed of government, the new road – a public utility – is just now being put into service.  If that road were constructed on private property, it would have been completed in less than six-months.

An Internet generation goes by in essentially one-and-a-half years.  For companies like Apple, Google, Comcast, Verizon, etc. – this rapid, unforgiving time frame presses them to the edge of their abilities to meet consumer demand.  Sadly, imposing public utility regulation on this sector would force the ecosystem to innovate at the speed of government.  Companies would be asking, “FCC, can I do this, or that?” instead of just doing it and letting consumers decide.  Now, that may be appealing to regulators, but in a regulatory sense it is the exact opposite of where we’ve been since the unregulated Internet exploded with growth and development these past 10 years.

Society moves on Internet time.  That road, which regulators can’t hope to transit, should continue to guide the Internet and its thriving ecosystem. To this end, the FCC must avoid regulating the Internet as a public utility.  If it chooses otherwise, it will block a proven path to growth and prosperity that has served Americans, and the world, so well.


Want More, Better, Faster Internet? Regulate the Heck Out of It Says Free Press

August 10, 2014

The anti-private property group Free Press believes Title II – which the radicals want imposed on network providers to ensure “real” Net Neutrality – is getting some bad press.  So, it’s embarked on its own press deluge to shore up the idea that heavy-handed government regulations are actually good for investment, noting (in page-after-page of […]

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Wheeler Letter to Verizon – Permissionless Innovation Nears Its End

August 4, 2014

Houston, we have a problem. Last week saw a highly unusual letter from FCC Chairman Tom Wheeler to Verizon, taking issue with the company’s plan to ease wireless data traffic congestion. As Wheeler writes: “Your website explained that this was an extension of your ‘Network Optimization’ policy, which, according to your website, applies only to […]

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FCC Working to Poke Taxpayers’ Eyes Out in Tennessee and North Carolina

July 29, 2014

In early June, Tom Wheeler touted in a blog post that “I believe that it is in the best interests of consumers and competition that the FCC exercises its power to preempt state laws that ban or restrict competition from community broadband. Given the opportunity, we will do so.” And like, shazaam, just last Friday, […]

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MediaFreedom Urges Against FCC’s Net Neutrality Proposal in Comments to Agency

July 15, 2014

Comments of MediaFreedom to the FCC[1] has long-argued against FCC imposition of its Net Neutrality rules, believing that the vibrant Internet ecosystem would be harmed by this unwarranted regulation. Although the latest proposal by the FCC appears headed in a more moderate Section 706 / “commercially reasonable” direction, the very idea of protecting the Open […]

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#FAIL – FCC Turns into DMV, Servers Clogged on “Net Neutrality Day”

July 15, 2014

#FAIL – On the last day to take comments for its Net Neutrality rulemaking – a day that the FCC has no choice but to make the Internet work for it due to the expected high volume of comments streaming over the medium to the agency – their servers are clogged. Looks like the FCC’s […]

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Free-Market Advocates Opposed to Internet Regulation Net Neutrality Comments

July 15, 2014

Comments of Free-Market Advocates Opposed to Internet Regulation For 10 years officials at the Federal Communications Commission have told Americans that the Internet will “break” unless the agency steps in to keep it “free and open.” All the while, the Internet’s privately driven development has been vibrant, relentless and universal. Nevertheless, at points during this same […]

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