Communications Daily (subscription) reported today on the avalanche of lawsuits being filed challenging the FCC’s Comcast “net neutrality” order.   Four were filed this week in four different U.S. appeals circuits — the lucky court that will actually decide the case will be decided by lottery.

The story quotes Ben Scott of Free Press, the energizer rabbit of pro-regulation media groups, decrying Comcast’s appeal.  “The Internet is too important to let Comcast tie it up in legal limbo,’ he says.  “Congress should act now to pass Net Neutrality laws that clear up any uncertainty once and for all.”

Huh?  On what planet, exactly, is Free Press based?  Put aside for the moment the question of whether Comcast is responsible for the legal chaos that has ensued from the FCC’s decision to regulate the way it manages Internet traffic.   Strangely enough, when Free Press petitioned the Commission to get involved, I didn’t hear them decrying the “legal limbo” it would cause.

But even more jaw-dropping is the idea that Congress could “clear up any uncertainty” by adopting its own Internet regulations.   The mind boggles.   The last major congressional foray into communications policy was the Telecommunications Act of 1996, which spawned over half a decade of litigation.  There are still children of telecom lawyers going to college off the fees generated by that one.

And that legislation was a relative piece of chocolate cake compared to the torte of net neutrality.   Proponents of mandated neutrality — which Commissioner Robert McDowell has likened to a regulatory Rorschach test — can’t even agree on what it is.  Lord know how long it would take the courts to sort it out — if ever they are able to.

Free Press is right, of course, to worry about the endless litigation which will — and already is — being caused by FCC Internet regulation.   Rather than even more rules from Congress, however,  the solution is for the FCC to reverse course on the regulation it unwisely imposed last month.

By James Gattuso - Cross Posted on TLF

This morning’s Drudge Report features the stories everyone is talking about today, with reports on U.S. swimmer Michael Phelps winning another couple of gold medals, the latest on the Russia-Georgia war, and — of course — FCC commissioner Robert McDowell on threat of the Fairness Doctrine and net neutrality regulation.

Well, maybe the first two stories are getting a bit more attention, but McDowell’s remarks –  made at The Heritage Foundation yesterday after a blogger’s briefing  — is getting a surprising amount of coverage in the blogsphere and trade press.

The remarks were originally reported in a story on the Business and Media Institute website, in response to a question about prospects for a Fairness Doctrine revival.   McDowell responded that it the issue hadn’t been raised at the FCC, but went on to state that there is a danger of similar rules put into place under a different name.   A spot-on analysis, as we’ve argued many times before. (see video here.)

He then went on to say that the Fairness Doctrine “will be intertwined with the net neutrality debate” (net neutrality was the primary focus of his remarks at the Heritage briefing).  Referring to concerns of regulation supporters — including what he called “a few isolated conservatives” that large corporations will censor their content, he said the “bigger concern should be if you have government dictating content policy.”

Most of the coverage of McDowell’s remarks interpreted McDowell as saying that the Fairness Doctrine itself might be extended to blogs (i.e, the Drudge headline: “Return of ‘Fairness Doctrine’ Could Control Web Content…”).  Such a direct extension of the old broadcast-only fairness rules is unlikely though.   Instead, McDowell I think was raising the danger that net neutrality regulation could be the source of such web content controls.

That same danger was raised last year by Adam Thierer, who argued in a Progress and Freedom Foundation paper that net neutrality regulation was in fact “a fairness doctrine for the Internet.” As Adam explained:
“It’s a brilliant tactic by the Left. Why exert all your energy attempting to reimpose “fairness” mandates on broadcasters alone when you can capture them, and much more, by regulating the entire Internet? After all, in a world of media convergence and abundance, bright lines dividing distinct media sectors or their products have vanished. Everything from TV shows to text messages run on multiple networks, making the old, broadcast-oriented Fairness Doctrine a less effective means of reestablishing a liberal media monopoly. So the liberals got smart and came up with the perfect solution: use net neutrality as a backdoor way to impose the Fairness Doctrine on the entire media marketplace.”

Adam’s piece is worth reading.   And Commissioner McDowell — while not receiving gold medal at the rate they are being collected by Michael Phelps — certainly deserves kudos for raising the alarm bells on this aspect of net neutrality.

By James Gattuso - Cross Posted on TechLiberationFront

It’s over.   The FCC, which voted to approve the merger between satellite radio firms XM and Sirius two weeks ago, finally released its formal report on the case on Tuesday, ending the drama 505 days after the firms submitted their application to the Commission.

The episode was not the FCC’s finest hour.  The agencies once-vaunted “shot clock” — by which the FCC pledged to decide on mergers within 180 was left in shreds, with the counter going around almost three times before the circus finally ended.   Even at that, XM and Sirius managed to claw their way to approval only by making an (ever-longer) series of “voluntary” commitments:  including offering “a la carte” programming, capping prices for 36 months, making 8% of its capacity available to others to non-commercial and other entities, and extending service to Puerto Rico.   Even more was being considered when the music stopped, including a proposal to require all satellite radio receivers to have built-in HD broadcast tuners as well. (Apparently, there was concern that broadcasters would be frozen out of the audio market, with a market share of about 96 percent).

This regulatory free-for-all contrasts with the approach taken by the Department of Justice, which — after a fact-specific inquiry, approved the merger -  without conditions - five months ago.

This difference is more than a one-off burp, some momentarily loss of focus, over at the FCC.  The difference is a long-standing  one.  The statutory changes, and institutional culture, of the two agencies is vastly different.  The DOJ, is charged with enforcing competition laws, using a fairly well-accepted set of guidelines and economic principles.  And, for all its faults, its considerations  tend to be economic and factual in nature.   The FCC, by contrast, is a political animal, besieged - and often co-opted - by competing industries and interests.   And its statute allows it to go beyond questions of competition and consumer choice to open-ended and undefined inquiries as to what is in the “public interest.”

The problem is not a new one.   Former Commissioner Harold Furchtgott-Roth has long railed against what he has called the FCC’s “policy exploits masquerading as merger reviews.”

Rather than another round of reform of the FCC’s merger processes, the answer is to scrap the FCC’s merger review authority entirely.   The effects of mergers on consumers and competition are sufficiently, and best, weighed by the competition authorities.  Broader public interest factors — if those can ever be defined — are better addressed in a broader policy context, not in the hothouse atmosphere of a merger review.

Don’t expect the FCC to be stripped of its role anytime soon, however.   The sad reality is that, while most everyone who has seen an FCC merger review up close knows the problems, after it’s over no one has an interest in fixing it.   The newly-christened Xm Sirius certainly has no dog in that fight.  CEO Mel Karmazin no doubt hopes he will never go through an FCC merger review again.  Moreover, for most firms, FCC merger authority may be just as likely to be a useful weapon against competitors as a threat to their own plans.

So despite the XM Sirius debacle, expect the circuses to go on.  And on.   And on.

By James Gattuso

The FCC last Friday may have jumped with both feet into the business of regulating the Internet, but someone forgot to tell the folks that run the Commission’s website.   “The FCC Does Not Regulate the Internet or Internet Service Providers (ISP)” the “consumer publications” page of FCC.gov is still proudly telling visitors, referring them over to their state consumer protection office or to the Federal Trade Commission as the proper agencies for such things.

In the past, I’ve been critical of the shambolic way in which the FCC’s website is run.  But in this case, the problem isn’t with the web folks - they have the policy exactly right.  It’s the FCC, not FCC.gov, that’s bungled the job.

Someone at the Commission will eventually tell the website folks to fix the error.  But who will get the Commissioners to fix theirs?

By James Gattuso - Cross Posted on Tech Liberation