The media is nothing if not a basher of private property owners and anything corporate that somehow affect “their” Internet. A prime example of this can been in a recent, shamelessly misinformed article on Toys ‘R’ Us workers’ efforts to claim severance pay from the remnants of the toy seller. Bloomberg mystifyingly laid the blame at the feet of the same private equity companies that did everything they could to keep Toys ‘R’ Us running.

Amazon, and the policies, laws and regulations which helped it and its Hoover-like e-commerce brethren become the monsters they are, well, that’s simply AWOL in the article’s coverage.

Shuttered Toys ‘R’ Us store, Florence, SC.

Of course, creating boogiemen out of Wall Street types is an age-old tradition in the press. But no matter how much the media loves to feed their audience tales of private equity greed, rushing into these narratives is often grossly misleading. That’s exactly what’s happened in the aftermath of Toys ‘R’ Us’ bankruptcy.

This might have made for gripping copy, but the actual circumstances surrounding this tragic situation were largely neglected. The truth, per usual, is much more nuanced: Toys ‘R’ Us was systematically pulled apart by Amazon, stringent regulations that favor e-commerce and punish business in general, and inflexible and opportunistic creditors.

Bloomberg’s article quoted Senator Elizabeth Warren (D-MA) saying, “When an outside group with a lot of money can come into a place like Toys ‘R’ Us and vacuum up all the value and leave the employees, leave the pensioners, leave the small-trade, the folks who help supply the business…and take all the value and leave nothing for anyone else, then capitalism doesn’t work. Markets don’t work.”

I sort of agree—except that the “outside groups” she speaks of are not the investors who worked to save Toy ‘R’ Us; they are the increasingly aggressive e-commerce giants, such as Amazon, who’ve created an unlevel playing field for traditional American businesses, not to mention the legislators and regulators who enable them.

The Toys ‘R’ Us bankruptcy should serve as a wakeup call—especially in light of the demise of more than 300 brick-and-mortar retailers who declared bankruptcy last year. Crippling federal, state, and local regulations, combined with Amazon’s (and others’) dubious e-commerce business practices and the rapaciousness of the company’s creditors led to the fall of this iconic brand—not the supposed avarice of private equity firms.

No private equity firms go into business to go bankrupt. They had a vested interest in keeping Toys ‘R’ Us viable. And by working with these private equity investors, Toys ‘R’ Us reportedly was close to a deal to save itself. But the company’s creditors opted for liquefying the company’s assets to settle its debt instead. That’s why tens of thousands of former Toys ‘R’ Us employees are out of a job.

As I see it, the pro-Silicon Valley, anti-Main Street policy environment – such as communications, tax, labor, environmental and zoning laws, among others – played a huge, aggravating role in the downfall of Toys ‘R’ Us. But, you wouldn’t know that from this Bloomberg story. The news outlet simply ignored the systemic favoritism of Silicon Valley over Main Street, disserving their readers and the issue.

Business publications, such as Bloomberg, have a responsibility to recognize the complex underlying factors that determine whether a company files for bankruptcy or not—regardless of the narrative that the organization thinks will garner the most clicks.


Tomorrow, the Senate is going to hold an FCC oversight hearing, which in all likelihood will touch upon a recent FCC IG report that was critical of the agency’s handling of a purported DDoS attack on its ECFS comment system in May of 2017, during the run-up to its Restoring Internet Freedom Order (RIF).

Of course, the IG report is much ado about nothing. Its critique is not so much about Chairman Ajit Pai as it is on his Obama-holdover CIO, David Bray, whom the Chairman relied upon when reporting out the ECFS’ irregularities and problems to the press and Congress. But, not letting a “crisis” go to waste, Democrats in Congress have seized upon it to show that the RIF is somehow “broken.”

Um, OK.

Yes, the ancient system isn’t up to snuff. It’s been that way for a long time; the present FCC is working to correct it. Of course, that didn’t stop the previous Obama FCC from using its known infirmities to kite its Net Neutrality plebiscite, er, comments, to “prove” Americans wanted Title II to constrict the Internet. But, I digress.

As to the report, Chairman Ajit Pai’s office helped the IG compile it, rightly avoiding, at the IG’s request, public comment before it was released. And the result, according to Pai, was a report that “debunks the conspiracy theory that my office or I had any knowledge that the information provided by the former CIO was inaccurate and was allowing that inaccurate information to be disseminated for political purposes.”

End of story, right?

Maybe (hopefully).

Senator Bill Nelson. – who is in a tight race for re-election down in my former home state, Florida – will likely lead the charge at tomorrow’s hearing. But, this could look a tad odd. You see, Nelson appears to be setting up his own conspiracy theory / excuse in case he loses his re-election bid in November. Last week, the Senator told the Tampa Bay Times that “Russian operatives” have gotten into Florida’s voter registration system and have “already penetrated certain counties in the state and they now have free rein to move about.” (Where have we seen this playbook before?)

Governor Rick Scott – his opponent in the election – is pretty upset about this. After all, it’s Scott’s election system, and its potential outcome, that Nelson is knocking. The Governor and others want Nelson to cough up the details. But when pressed to further elaborate, Nelson wouldn’t, stating to the Tampa Bay Times that that information is “classified.”

Weird how the Senator’s “I can’t tell you anything more” comment is OK for him to make (without any outcry from his D colleagues), but when Ajit Pai complies with his IG’s request for a similar quiescence, he gets pilloried by Democrats for being “evasive” and “misleading.”

Anyway, subsequent to the Tampa Bay Times report, the Senator tweeted:

I and several of my Senate colleagues are trying to make sure state officials are aware of the ongoing Russian threat so they take the steps necessary to safeguard our elections. It’s unfortunate that some FL officials would try to use this issue for personal, political gain. (Emphasis added)

Oversight hearings are important functions of Congress – it has a right to know how the taxpayer’s resources are being used. As to the purported DDoS attack, or whatever it was, yes, the FCC poorly managed the matter. In particular, it should not have relied so heavily on David Bray’s incomplete analysis when making statements about it. OK. We get it.

Let’s hope Senator Bill Nelson recognizes this and avoids bashing Chairman Pai for “personal, political gain” over the non-issue. Of course, Nelson is free to do that. But, then, we’re free to remind him of his hypocrisy, too.

It’s time to move on. There are more important issues to deal with – like the deployment of broadband to all Americans than silly politics.


I was able to catch up with Daniel Benringer to discuss his petition before the Supreme Court, Berninger v. FCC, which seeks to overturn on constitutional grounds the previous FCC’s Open Internet Order (a.k.a. Net Neutrality Order). Right now, SCOTUS is considering whether to take that challenge. Among other things, Berninger asks: Can Chevron Deference essentially create a new agency – a Federal Computer Commission to regulate the Internet? Berninger believes it cannot and hopes SCOTUS agrees.

The following is a transcription (below) of the attached video.

Daniel Berninger: I’m pursuing something that I call “Hello Digital,” which is to put voice services behind websites. So, when you go to a website you think you’re alone, and today you traverse the Internet as far as you know you’re alone. But, no, in fact lots of people are showing up at that same website. So, we allow people to click through, get an operator, and the operator plays matchmaker. And, the next thing you know you’re talking to the person that’s reading about Syria in the New York Times, or whatever. It would be an entirely new way to create a conversation. A new way to discover people that care about the same things that you care about. And, it would presumably create a lot more conversations. But government’s decided in their infinite wisdom that, no, that’s illegal.

One of the effects of this was immediately to wipe out all my funding sources because no one will invest in a project that requires “Mother may I” with government. So, the question is: “Are entrepreneurs allowed to pursue these projects”? And as of 2015, no. That I need to go and explain what I’m doing to the FCC and they give me a green light or not.

For 20 years, they’ve been trying to find a way to regulate the Internet and in what context. They’ve tried a bunch of different theories and they’ve failed. Now with the case that’s presently before the Supreme Court of which I am the named plaintiff, Berninger v. FCC, we’re finally going to find out whether or not the government can regulate the Internet and under, presently, the theory of Chevron Deference. Can Chevron Deference essentially create a new agency – a Federal Computer Commission? I feel like it cannot.

They’ve essentially thrown a bunch of things at the wall to see what sticks. But the bottom line is that the existence of the FCC, based on a 1934 law, and as revised in 1996, so the jurisdiction as defined by Congress, none of that addresses or says the FCC can regulate the Internet. Essentially, we’re in this kind of position two wrongs doesn’t make a right. That the Restoring Internet Freedom Order cannot moot the previous Order because both are wrong. And, in particular, the question of Title II, that is, layering on the entire telecom regulation on the Internet, is only addressed in the Open Internet Order. So, if they are able to moot the previous challenge, then we’ll never know whether or not Title II is legal or is constitutional.

So, I’m pressing ahead with Berninger v. FCC to ask that question: Is it possible that Chevron Deference is able to create a whole new agency – a Federal Computer Commission? And, in particular, can Title II be layered on top of the Internet just on the FCC’s say-so.


The following statement may be attributed to Mike Wendy, President of

Alexandria, VA, August 2, 2018 – MediaFreedom applauds today’s FCC adoption of its “one-touch make-ready” Order and Declaratory Ruling. The commonsense plan would remove barriers to network buildout, making attachment of broadband facilities to utility poles less-expensive, more open and streamlined. Quite simply, today’s action will boost Internet access and competition, and will thus lead to greater broadband-driven prosperity for all Americans.

Keep this stuff coming, FCC! America’s broadband future deserves as much.


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