This piece, which I wrote, appeared in Real Clear Technology, November 13, 2015.

Big Cable is acting like a playground bully because it can’t run the airwave schoolyard just the way it wants; and now it’s going to ensure new competitors can’t play either. The cable industry is marshaling its significant lobbying and PR muscle to push the FCC into regulating unlicensed spectrum, which are the airwaves that Wi-Fi runs on, to protect its interests in Wi-Fi and limit consumer choice.

But this can only backfire for consumers, competition and innovation.

You see, Big Cable is nervous about the proposed rollout of new technologies like LTE-Unlicensed (LTE-U) – LTE cell services designed to operate over unlicensed spectrum to relieve cell site congestion. LTE-U services are expected to hit the market next year and will be offered by companies in the competitive mobile industry in areas where cell congestion, caused by spectrum scarcity, challenges mobile device use. These companies are competing to make the mobile broadband experience the best it can be for hungry consumers. LTE-U holds an immense amount of promise for wireless services, consumers and broadband competition.

LTE-U will operate in small spectrum swaths within an unlicensed band that is also occupied by Wi-Fi. Unlicensed spectrum is an area that has flourished with vibrant innovation and competition because the FCC has basically stayed away from regulating it. Instead, for nearly 30 years, the details and standards that drive unlicensed services have been developed through non-governmental, industry consensus/de facto processes.

Without a doubt, Wi-Fi is amazing technology. It has made home and office networking easy, affordable and universal. Moreover, Wi-Fi benefits the entire communications industry: wired, wireless and mobile. How other services – emerging or otherwise – interact with Wi-Fi is a big deal. They must coexist. Consequently, the information and communications technology industry is particularly cognizant that they do.

But Big Cable has a big Wi-Fi play going on, and is no longer satisfied with the non-governmental processes that allowed the technology to prosper for all. It claims intervention is needed because LTE-U will crowd out and degrade Wi-Fi. But interference tests – including a recent collaboration between CableLabs and Qualcomm – show that LTE-U plays nicely and coexists just fine with others in the unlicensed spectrum bands. In fact, some tests show that LTE-U plays nicer than Wi-Fi technology itself. Further, those who want to deploy LTE-U also need Wi-Fi to serve their customers, meaning they have a huge incentive to make sure all their offerings work well together.

Since the birth of the iPhone and tablet, the broadband market has changed. Radically. Caught flat-footed, Big Cable now confronts the explosion of the mobile broadband market, which dwarfs cable-provided broadband. LTE-U is another mobile option that consumers will demand, and this will only amplify Big Cable’s tethered shortcomings.

So, it’s running scared.

Attempting to maneuver around consumer choice, Big Cable has deployed a Wi-Fi network of its own to extend its limited wired infrastructure, giving its users some sort of wireless (but not truly mobile) option. It’s rolled-out nearly 400,000 hotspots nationwide for its subscribers (only) to access the Internet on their mobile devices.

But, Big Cable knows this is a competitive Band-Aid of sorts. Consumers demand packages with true mobility, which it can’t provide. What really concerns Big Cable is not its trumped-up interference claims, but rather, it’s the fact that cable wants to monopolize unlicensed spectrum as it builds out this Wi-Fi hotspot network to offer a wireless component to essentially wired-only broadband offerings. Why? Because cable knows that the quality of a Wi-Fi network will never compare to the consumer experience on a LTE-U network.

Like any playground bully does when the chips are down, Big Cable has decided to gang up on LTE-U in an orchestrated effort to kick sand on and crush this nascent, competing technology. It wants to conflate real competition, innovation and progress as consumer harm.

Through one of its many powerful lobbying groups, it has impetuously demanded the FCC deny the certification of new LTE-U devices, effectively vetoing any new service that could develop for consumers. Additionally, it wants the FCC to approve LTE-U standards – acceptable only to Big Cable, of course – interposing not only significant delay, but also ushering in a new and deleterious era of regulation in an area that has never seen it.

Consumers, competition and innovation deserve better than these blatantly anti-competitive, bully tactics. They cut against the immense success of unlicensed spectrum, which provides hugely beneficial solutions for consumers and society precisely because they were developed outside the auspices of stultifying government regulation.

The model works. Clearly. And it still can.

That is, if Big Cable learns to play nice and realizes that LTE-U will not harm its little sandbox.


On the same day that the President, er, the FCC issued its Open Internet / Net Neutrality Order last March, in a separate order the Commission also preempted taxpayer protection laws in North Carolina and Tennessee, which those states used to guide the development of taxpayer-supported, government-provided broadband networks.

Anyway, months before the orders were even finished being cooked for public consumption, the President more or less instructed the FCC to preempt the states. And, dutifully, (unelected bureaucrat) FCC Chairman Tom Wheeler took the bait, using his expansive 706 powers to deny North Carolina and Tennessee (and their citizens) of their sovereign rights.

MediaFreedom stood against the FCC’s preemption proposal, noting in a filing last year that:

  • 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.

That Order is being appealed in a Federal Court – thankfully. But without some help from some powerful allies. That is, the President and his DoJ.

In about the briefest filing I have ever seen, clocking in at just 11 words, Justice stated:

Respondent United States of America takes no position in these cases.

Randy May, who’s practiced communications law for four decades, jumped on the “curiousness” of the DoJ’s non-support of the FCC, writing in a press release:

“The Department of Justice’s curt statement advising the court that it takes no position in the appeal of the FCC’s preemption of state laws restricting local government broadband networks is very curious. As someone who served as FCC Associate General Counsel, I can tell you this is a very rare occurrence. And it is especially curious in this case because President Obama urged the FCC to do exactly what FCC Chairman Tom Wheeler then did. We don’t know for sure, but my best guess is that the DOJ, quite rightly, is concerned about the lawfulness of the FCC’s preemption action. If so, the concern is justified.”

The President’s actually done some good here in throwing Tom Wheeler under the bus on this one. Hopefully, the Federal Court hearing this case will see this “support,” among other powerful anti-preemption arguments, and rule that the FCC does not have the power to strip states of their important rights to regulate how their tax revenues get used.


On Friday, the FCC denied a petition by Consumer Watchdog to use its Title II and Section 706 (“virtuous cycle”) powers to impose consumer privacy / “Do Not Track” obligations on Internet edge companies like Google and Facebook. According to the short denial, the Commission said that its Title II privacy-protection powers cannot be extended to the edge.

What was missing from the agency’s denial was more important, however. Interestingly, the FCC (intentionally) failed to fully address Consumer Watchdog’s other request that the Commission use its 706 powers to impose the privacy obligations.

Hidden at footnote 9 of the anemic, two-page filing, the FCC briefly (only) notes:

In response to parties expressing concerns that section 706 could be read to impose regulations on edge providers or others in the Internet ecosystem, we emphasize that today’s rules apply only to last-mile broadband providers.

Translated: Only the FCC’s Title II / common carrier regulations, and its no blocking, no throttling, no paid priority, and no unreasonable interference (Net Neutrality) rules apply. And then those only to last-mile providers, not the edge.

By its own admission, however, Section 706 stands outside of its Net Neutrality rules, with its 706 powers being “an express, affirmative grant of authority to the Commission” to promote Internet openness and accelerate broadband deploymentThat independent 706 authority, which was affirmed by the DC Circuit apart from the present rules, provides the foundational linchpin, which allowed creation of the agency’s expansive Net Neutrality rules, adopted last March.

In brushing of Consumer Watchdog's petition, the FCC fails the Internet ecosystem by purposely keeping the contours of its 706 powers murky.

In brushing off Consumer Watchdog’s petition, the FCC fails the Internet ecosystem by purposely keeping the contours of its 706 powers obscured and murky.

So, as I read it, Consumer Watchdog’s claim doesn’t need the FCC’s Net Neutrality rules to work. It only needs the Commission’s 706 powers to go forward, which the agency has trumpeted as legitimate, and, well, standing independently on their own.

The FCC itself has acted in such a manner, and, contrary to the purposely under-inclusive recitation of its law in footnote 9, it has used that same 706 tool to preempt two states and their laws determining how taxpayer / muni-provided broadband networks could go forward in those states (an FCC Order now on appeal).

Wheeler seemed pretty proud of that aggressive action then, stating:

Congress instructed the FCC to encourage the expansion of broadband throughout the nation. Consistent with this statutory mandate, the Commission acts today to preempt two restrictive state laws hampering investment and deployment of broadband networks in areas where consumers would benefit from greater levels of broadband service.

This Order reflects our continued commitment to the goals of Section 706 and represents a significant step forward in giving local communities a full range of options for meeting their broadband needs. While the direct effect of our decision today is limited to the two states involved, it sends a clear message: communities should be able to determine their own paths to meet their constituents’ needs.

Heck, if it can use 706 to regulate a state – which, last I checked, wasn’t a last-mile provider – what would stop it from using that same power to regulate the Internet’s edge?

Hmmm. (Answer: Google’s lobbying muscle)

Don’t get me wrong. I am not asking for regulation. What I am asking for is an FCC that is not arbitrary and capricious. It says it has the power to protect the Internet from abuse. That it’s the Internet’s cop-on-the-beat. But when it comes time to actually use it, it says it doesn’t have that power. That, really, it’s only the “evil” network providers who are the “bad guys” needing their regulatory billy-club.

706 is far broader than that, and the Commission knows it. And, in the Consumer Watchdog denial, the Commission wants this ball hidden to protect the subsidy it’s given to Silicon Valley.

Echoing the Commission’s own 706, “virtuous cycle” reasoning, Consumer Watchdog notes:

…[E]nsuring consumer privacy will ensure the openness of the Internet and the ability of consumers to access all the legal content and applications of their choice, which will drive consumer demand for broadband Internet access. The increased demand for services will, therefore, lead to greater infrastructure investment not only on the part of broadband providers but also on the part of edge providers offering information services. In turn, increased investment will lead to greater deployment and increased capacity for all Americans, in fulfillment of Section [706].

…[E]dge providers collect the same sensitive personal information that broadband Internet access service providers collect, and that the Commission is committed to protecting. If the Commission does not act to regulate the collection of personal information by edge providers, the Commission will in effect be granting a regulatory advantage to the edge providers, implicating concerns of market distortions. In order to maintain regulatory parity, the Commission must impose some rules on edge providers that protect consumers’ personal information.

I think its petition reflects real concern.  An interesting study came out last week which suggested that just five companies “collected 70% of the industry’s more than $300 billion in revenue the past 12 months.” The top four were Amazon, Google, e-Bay and Facebook (all vocal Net Neutrality supporters; and “unregulated” edge companies). A lot of important personal data goes through those giants. A lot of Americans depend on those services.  This gives many a lot of agitation.  That may be due to the fact that, as a separate Pew study earlier this year revealed, Americans have the least amount of trust and confidence in online retailers, search engines, online video sites, social media sites and online advertisers to keep their personal data private and secure.

Yes, people voluntarily use those outlets to better their lives. But, they’re still worried about the powers that those companies have accumulated by trafficking in their private data.  Consequently, whether you believe regulation is warranted or not – which is indeed an important question –  it nevertheless deserves more than a half-true footnote from the FCC to address those concerns properly.

This latest action by the FCC is yet more proof that Silicon Valley bought a massive subsidy / protection racket from the Commission with passage of its needless Net Neutrality rules. By simply brushing off Consumer Watchdog’s petition, the Commission does immense disservice to the Internet ecosystem by further obscuring its already murky, yet expansive, 706 powers.

This murkiness only works to the advantage of well-entrenched interests, and the bureaucrats who serve them.


On Monday, (once) Presidential candidate Larry Lessig – a nationally recognized consiglieri for Net Neutrality – announced that he was dropping out of the race for that office. The reason: Democrats changed the debate rules, denying him an opportunity to debate with the other candidates on a national stage, and in doing so, that change effectively blocked his candidacy.

Larry Lessig, the once Presidential candidate (picture from the Lessig2016 campaign)

Larry Lessig, the once-Presidential candidate (picture from the Lessig2016 campaign)

Though his anti-government corruption platform, Fix Democracy First, was his main goal if he won the election, the fight to defend Net Neutrality was high on his list of issues he’d prosecute, noting that “No one running for President could have a stronger commitment to defend the values of the Internet” than he would.

Seems this Net Neutrality thing ain’t such a good platform to run on if you want to get elected.

You may remember, Tim Wu – “father” of the term Net Neutrality – ran for New York’s Lieutenant Governor last year and lost. According to the New York Times (which, unsurprisingly, endorsed him), Wu was running “to speak out on complicated issues that are too often ignored in Albany like…broadband access needed by more than a million New Yorkers.” Broadband access is another way of saying, “I’m gonna’ promote Net Neutrality.”


Tim Wu, preaching at the FCC, urging passage of Net Neutrality, May 2014.

You may also remember back in 2010 when 95 progressive Democrats running for Congress pledged to protect “net neutrality — the First Amendment of the Internet.”

Every single one of them lost.

Then, industry analyst Scott Cleland wrote that that snookering clearly indicated the “political support for net neutrality does not extend much beyond the email lists of the extreme left…”

Those e-mail lists / bots ostensibly delivered millions of “concerned Net Neutrality advocates” to the FCC during the comment period for the rule last year. In fact, all three majority Commissioners noted just how important that input was (real, or not so) in rigging their final Net Neutrality mandate.

Where were all the millions of Net Neutrality comment bots for Larry’s POTUS campaign?

Answer: Locked in some server, waiting to be rolled out for the next fake cause.

Larry has been all about the power of the Internet in boosting the voice of the disenfranchised (like his?).  That it is, until primetime exposure on the dinosaur medium of broadcast TV looked more attractive to his cause. Heck, who could blame him. Manufactured Net Neutrality issues, with manufactured “concerned advocates” can only take you so far.  At some point, you’ve got to get real.

Lessig could have started getting real by addressing the corruption he so hates and was trying to fix. He should have said Net Neutrality was a bullsh&t issue, being bankrolled by a hoodwinking company (Google) and its freeloading kin in Silicon Valley. Had he done that, maybe real supporters would have turned out for him with lots of real dollars, allowing him a better chance to stay in the race.

But he didn’t; he couldn’t for a variety of reasons.  Oh, well.  Too bad for Larry.

Clearly, Net Neutrality is a losing issue.


Google, Amazon, Microsoft, FCC Fail to Bring the Investment from Their Dubious Net Neutrality Rule

November 2, 2015

According to the FCC, the new Net Neutrality / Title II rule was designed to promote “Internet openness [that] drives a ‘virtuous cycle’ in which innovations at the edges of the network enhance consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new innovations at the edge.” Nice math, eh? Last […]

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Big Cable, Google and Microsoft Threaten LTE-U Developers with FCC Regulation if They Don’t “Cooperate”

October 29, 2015

Big Cable, Google and Microsoft were recently lobbying at the FCC – bringing 15, $1,000-dollar-an-hour lawyers to meet with Chairman Wheeler – to shut down the competitive threat known as LTE-Unlicensed. They all say to the media that they don’t want the FCC involved in the non-governmental wireless standards-setting process, but then, why the heck […]

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FCC Practicing WMATA-Style Speaker Suppression via Its Net Neutrality Law

October 27, 2015

In May, American Freedom Defense Initiative’s (AFDI) Pam Geller submitted an issue ad (see more here) to be placed on the Washington Metro system (WMATA), depicting an image of Mohammed drawn by an Escher-like autonomous hand, sporting the headline “Support Free Speech.” This image and overall message did not sit well with the WMATA ad […]

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Big Cable, Google Engaged in “Competitive Special Pleading” at the FCC to Thwart LTE-U

October 23, 2015

Big Cable (represented by its lobbying organization NCTA), Google and their proxies talk a good game about how important it is for government to stay out of the standards-setting process so that unlicensed spectrum (as seen in services like WiFi) can flourish. But, when it comes to cellular providers attempting to deploy a new and […]

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Wi-Fi Alliance’s Charm Campaign Masks Its Anti-LTE-U, Anti-Consumer Official Position

October 19, 2015

LTE-Unlicensed is a new wireless communications technology that its creators want to operate in the unlicensed spectrum shared by Wi-Fi. Those seeking to develop and then offer it (i.e., members of the LTE-U Forum) see immense promise for the wireless marketplace and consumers with the new technology. But there’s a hold up. Like a gatekeeper […]

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FCC Net Neutrality Complaint Site Is Intentionally Misleading, Purposely Anti-Last Mile Provider

October 14, 2015

I recently did some research on filing an informal Net Neutrality complaint at the FCC. It seems that as part of lodging any such complaint, the website asks what company you are complaining about, and then offers a scroll-down box with 30 choices of nationally and regionally-branded broadband providers from which to choose. Wow – […]

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