You may have heard that Sears just filed for bankruptcy, setting in motion a last-ditch attempt to save itself from erasure from the American retail landscape.

The odds seem stacked against the company, as one story notes:

“Reorganizing Sears will not be easy. The company’s e-commerce business has only a tiny fraction of the sales of Amazon, one of the world’s most valuable companies. And bringing back customers to Sears stores will take investment that Sears probably cannot afford.”

Yes, Sears made some bad business decisions over the past couple of years. It was, in essence, America’s first “Amazon” retailer, but it simply stopped innovating, especially when it came to the Internet. Like others – such as Toys ‘R Us, Payless Shoes and The Sports Authority – the rise of e-commerce (Amazon, etc.) played an integral role in Sears’ demise. Today, e-commerce sales represent about 13% of all sales, growing at four times the pace of physical retailers. As the Internet further embeds itself in our lives and habits, most experts believe that trend will not soon abate.

And how could it?

Quite simply, American policy favors new Internet business models, like those of Amazon, over “traditional” retail. Our communications, intellectual property, labor, environmental, competition, tax and zoning laws, among others, act as powerful subsidies to e-commerce.

Legislators cannot be incognizant to this favoritism, especially policies which were deliberately designed to support the “nascent” Internet (it’s not any longer).

The present “balance” doesn’t seem right.  But until it is better addressed, there will be more “Sears” to come.

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I wrote the following piece, which appeared originally in Newsmax on October 3, 2018 (published here):

Congress Must Put to Rest the Net Neutrality Resistance

On Sunday, California’s governor, Jerry Brown, signed Net Neutrality legislation into law. Its progressive supporters rejoiced, calling the new law the “gold standard” for preventing ISPs from throttling, blocking, prioritizing and zero-rating what flows over their networks.

Sadly, this is not a one-off occurrence. California’s efforts are part of a broader state and federal RESIST strategy to reinstate Obama’s Net Neutrality rules, which were repealed by the present FCC late last year. A small handful of other states have passed similar laws or executive orders, too; California’s is the self-proclaimed “strongest” of these.

Almost immediately after its signing, the DoJ started the process of suing California for its law, with AG, Jeff Sessions, pointing out:

“Under the Constitution, states do not regulate interstate commerce—the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy…”

Added FCC Chairman, Ajit Pai:

“…The Internet is inherently an interstate information service. As such, only the federal government can set policy in this area…”

The upshot of this is that the court will likely rule (in a year or so) that Uncle Sam preempts California’s law, making it illegal.

A welcome, though unintended, outcome of this is that the DoJ suit also undermines a keystone in the zealots’ RESIST strategy: A pending Congressional Review Act resolution, which seeks to overturn the FCC’s repeal of Net Neutrality noted above. Session’s suit makes certain that even if the CRA makes it to the President’s desk, he will veto it. So, the CRA is DOA.

But don’t break out the champagne yet. Those pushing the Net Neutrality RESIST strategy aren’t about to just give up.

Though various versions of compromise legislation, which could resolve the issue once-and-for-all, have sat on the table for years, congressional Democrats have never been interested in passing anything other than “strong” Net Neutrality (whatever that means). Of course, that won’t happen with President Trump in the White House, even if Dems pick up the House and Senate in the mid-terms. So, get ready for more delay and shenanigans from the Democrats until at least 2020 to keep stoking the “need” for a return to Obama Net Neutrality.

Surprised? Don’t be. Democrats don’t want to see a quick end to the fake problem. While national polls show that Net Neutrality is AWOL for real Americans, Democrats believe it’s a potent campaign issue to generate support among its purported future base – millennials. If you “solve” it, you take away a powerful vote-getter, at least as they see it. So, there’s every incentive to keep the issue alive and in-play until they control the White House or have comfortable margins in Congress to pass legislation.

This does not need to be. Moreover, these politics are harmful to our economy.

As Democrats know, legislative Net Neutrality has never been necessary to boost competition, keep the Internet “open,” or to prevent consumer harm. From 2005 until 2015 – when “light touch” regulation was the rule, and Net Neutrality as a law was absent – over a trillion dollars of private network investment flooded into building the Internet ecosystem. It created the “open” Web that we know and love today.

Net Neutrality zealots want none of this. Such regulation cannot be exploited to expropriate private property for public purposes, restrict “undesirable” speech so that it is “good,” or subsidize and protect Silicon Valley billionaires. It’s “strong” Net Neutrality or nothing at all.

The impasse is untenable.

While legislative Net Neutrality isn’t needed to keep the Web “open,” some sort of compromise is needed now to end the nigh 20-year “debate” and the paralyzing agency ping-pong, which has both sucked the air away from more important policy matters and threatens America’s Internet leadership.

Call it whatever you want, but Congress must step in and pass legislation that protects network providers from government confiscation; is economically sustainable, rational and promotes investment; and ensures that consumers and competition are not harmed by unreasonable behavior from any player in the Internet ecosystem.

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The following statement may be attributed to Mike Wendy, President of MediaFreedom.org:

Alexandria, VA, September 26, 2018 – MediaFreedom applauds today’s FCC action which will help upend a major impediment to the growth of new broadband wireless services such as 5G: the local regulatory extortion racket, which throttles and blocks new wireless infrastructure until proper tribute has been extracted from market players.

With each year, broadband delivery has become more wireless than wired. The next generation of wireless broadband – 5G – will be up to a thousand times faster than its predecessor. But this innovation means that the cell sites which support it must become more dense and closer to residents and businesses. Industry estimates this new architecture – or, small cells – will number about 800,000 for the service to properly scale on a national level.

Enter the local mob.

5G will need a lot of “permission slips” from local authorities to access public rights-of-way, buildings and light poles to place backpack-sized, small cell technology where it can work. Sadly, for many state and local officials, monopoly control of this property represents a “revenue-making” (as in, extortion) opportunity. ISPs constructing infrastructure oftentimes experience slow-rolled review of permits, non-cost-related, $2,000 price tags for each small cell site, and demands for other “favors” or unrelated requirements so they can deliver service in a locality.

Spread out over thousands of state and local jurisdictions across America, the time consuming and extortive process is simply not compatible with expeditious and ubiquitous broadband growth.

Today’s actions build on other Federal, state and local efforts to end local Lilliputian throttling / blocking of Internet growth. Among other things, the FCC rules will bring siting fees more in line with true costs, provide guidance on “non-fee” requirements for buildouts, and subject permit approvals to defined timeframes. Quite simply, the FCC’s plan reflects a commonsense, flexible and national approach to remove state and local barriers which Balkanize the Internet, and keep Americans needlessly wired to the past.

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Last week, when several states filed their joint brief urging overturn of the FCC’s Restoring Internet Freedom Order (RIF), a fire storm broke out. In it was the declaration from Santa Clara County fire chief, Tony Bowden, that his department’s efforts to stop the Mendocino Complex fire were hampered by Verizon’s throttling of a wireless device in the county’s mobile command center.

Verizon claims it was a customer service error and misunderstanding, and that they handled it poorly; it won’t happen again. But that was automatically discounted by the Net Neutrality zealots who had their own burning “truth” to yell.

On cue, out from the woodwork came all the former officials who wrote Obama’s Title II Net Neutrality rule; its supportive legislators; the hack, pro-Net Neutrality press; and the professional activists – in a single voice screaming (I paraphrase):

“Aha! Verizon was throttling and that’s a Net Neutrality violation. But, because the rules aren’t around any longer, Santa Clara (and the next Santa Clara) can’t be helped. Public safety has been jeopardized by Donald Trump and his AWOL FCC. The world is on fire. How dare they!”

Quite simply, this is a hot mess of a lie.

From the very start, the whole exercise has smelled of political theater. You see, there’s a (dubious) Net Neutrality bill moving through California’s assembly right now. National, pro-Net Neutrality forces see its passage as being critical to goosing passage of a Congressional Review Act resolution to overturn the RIF.

They got their plates working on all the burners. Bowden’s statement in the filing was just the right accelerant to fuel the outrage and keep the pro-Net Neutrality heat up high.

But it’s a deception – a cheap, distorting, fake news prevarication.

The throttling WAS NOT A NET NEUTRALITY VIOLATION and could not have been “prevented” by Obama’s proscriptive rules. Reasonable network management / disclosed neutral throttling has always been allowed (which this was).  Moreover, the states’ brief goes out of its way to disabuse readers that the incident had anything to do with Net Neutrality, conspicuously noting:

“Government Petitioners do not contend that this throttling would have violated the 2015 Order…”

But no mind. That inconvenient truth wasn’t going to stop the narrative. Facts be damned, such as:

  • When Chief Bowden testified for over 45 minutes last week before a California Assembly committee on the matter, he never once mentioned that the lack of Net Neutrality rules (or anything to do with the matter) caused the dispute.
  • That, according to the Chief, it wasn’t such a big deal, stating “We had a short period of reduced downtime, but we were able to maintain operations [through workarounds and a redundant provider], and it did not impact the operations of that fire.”
  • That the Chief’s main concerns were “hardening” cell site infrastructure to better withstand natural disasters; adequate coverage in remote areas; and balancing the budget implications of proper wireless plans which sit largely unused until “spikes” in natural disasters occur.
  • Finally, when given the chance at the end of the hearing for public comment, not one person did. Stated differently, if Net Neutrality was such a big problem, where were those people to decry it?  AWOL – because the outrage was manufactured.

At the end of the day, Santa Clara’s throttling dispute was simply a mix-up of communications and operational mistakes by both SCCFD and Verizon, and nothing more.

The issue of Net Neutrality was a bogus smoke signal from the start.

The national, pro-Net Neuties knew this, but, heck, why let the facts get in the way of a good fire.

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Bloomberg Toys ‘R’ Us Article Wrongly Blames Private Equity, Ignores Systemic Favoritism of E-Commerce

August 17, 2018

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 […]

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Senator Bill Nelson Should Avoid Hypocrisy, Politics in Tomorrow’s FCC Oversight Hearing

August 15, 2018

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 […]

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Berninger: The OIO and Its Chevron Deference Cannot Create a Federal Computer Commission to Regulate the Internet

August 13, 2018

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 […]

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Statement: MediaFreedom Applauds FCC’s New “One-Touch Make-Ready” Plan

August 2, 2018

The following statement may be attributed to Mike Wendy, President of MediaFreedom.org: 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, […]

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Facebook and Twitter Are Neither Free or Open, and I’m OK with That

July 27, 2018

If you’re worried that Facebook and Twitter might be “shadowbanning” you because of your (conservative) views, get over it. They are private companies, and you’re there as their guest: you have no right to be on them. These platforms are neither free or open, but I’m okay with that. I can turn them off and […]

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Time to Look at Washington’s Role in Promoting Dead Mall Syndrome

July 18, 2018

The Dead Mall.  A scene all too common across all of America. Sure, there’re a number of reasons why this is occurring.  Chief among them, however, is U.S. e-commerce policy, which has engendered ravenous online companies like Amazon, hastening the demise of (apparently undesirable) local retail outlets. You know, the Internet was supposed to change […]

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