• Why the FCC's Net Neutrality Plan Should Go Nowhere

    My hopes that the FCC, under its new chairman Julius Genachowski, would undergo a much-needed course correction with respect to net neutrality, were dashed yesterday. VideoNuze readers will remember that my 3rd prediction for 2009 was that net neutrality, under President Obama's pragmatic leadership, would likely remain dormant.

    Mr. Genachowski's policy address, "Preserving a Free and Open Internet: A Platform for Innovation, Opportunity, and Prosperity" made clear that regrettably, he will be a forceful advocate for unprecedented Internet regulation. Mr. Genachowski has proposed codifying the FCC's four existing principles into Commission rules, and adding two new, additional principles. But read beyond the high-minded rhetoric about "preserving the openness and freedom of the Internet" and need for "fair rules of the road," and what you'll instead find is a jumble of illogical premises, inflammatory and threatening admonitions and pre-emptive, non fact-based conclusions.

    I know my opposition to net neutrality regulations will bother many of you. So before I'm accused of being a cranky regulatory libertarian with nothing but distaste for government intervention, let me assure you I am anything but. In fact, I'm a strong believer that when market failures occur, the government should aggressively intervene. If you've had the experience of hearing my rants on the gross incompetence of our nation's financial regulators in contributing to our recent near catastrophic market meltdown, you will have no doubt about the sincerity of my beliefs.

    That said, I'm also a fierce proponent of allowing market forces and competition to work in determining winners and losers, and that when this occurs, government influence, which is often distortive, should remain in check. If ever there was an example of a well-functioning market, it is the Internet, which since bursting into the public's consciousness 15 years ago has operated virtually regulation-free. This open and free Internet has spawned myriad innovative services that consumers enjoy today. And while the Internet has created billions of dollars of wealth for astute investors and entrepreneurs, it has also ruthlessly gobbled up many other billions of dollars ventured on ideas of illusory potential. In this respect, it could be argued that among the Internet's many marvels, it is likely the most efficient capital allocation mechanism we human beings have ever created.

    By far the most sizable capital investment in the Internet landscape has been in the so-called "last mile" of broadband access. The 70 million American homes, thousands of educational institutions and countless businesses of every size that receive fast, affordable broadband Internet access is largely attributable to the hundreds of billions of dollars of investments that cable operators and telephone companies have made in upgrading their networks over the past 15 years - upgrades that continue to this day and are planned well into the future. Investments, it should be noted, that were made without a penny of government subsidies, tax breaks or bailout funds. These companies were driven by robust supply and demand forces, quantifiable business cases, vigorous competition, technological innovation and supportive lenders and shareholders. It is not an exaggeration to say that the broadband networks these companies built are the very foundation of our 21st century economy.

    You might think that in a major policy speech premised on the importance of the Internet to our daily lives and commerce, the new FCC chairman might dwell for a few minutes on these contributions, if for no other reason than to demonstrate his understanding of what's truly at the core of today's Internet experience. But you would be wrong; instead the new FCC chairman used just over 50 words in a passing reference. You might also think that these companies' track records of being market driven might also influence the new chairman with regard to whether decisive regulatory action, particularly in the thorny area of network management, is now necessary. Here again you'd be wrong.

    In fact, with yesterday's remarks, Mr. Genachowski has picked up where his predecessor, Kevin Martin left off: pre-emptively tagging the nation's cable and telco broadband ISPs as untrustworthy conspirators plotting to wall-off the Internet to all but their own favored services. Though professing to "ensure that the (FCC's) rulemaking process will be fair, transparent, fact-based and data-driven," by first proposing the rules be adopted, before evidence of their very need has been established, the chairman has only ensured that the rule-making process will be anything but what he says he wants it to be. Deciding that net neutrality regulations are essential, after being officially on the job for less than 90 days and absent supporting data to point to, does not inspire confidence about the likely fairness of the Genachowski-led Commission.

    Mr. Genachowski further upped the ante by suggesting that if such regulatory action is not taken, perilous consequences to the Internet's openness await. His choice of words - that we could see "the Internet's doors shut to entrepreneurs," "the spirit of innovation stifled," "a full and free flow of information compromised" and that "if we wait too long to preserve a free and open Internet, it will be too late" - represent the kind of inflammatory, unjustified hyperbole that only serves to distract from the facts and data yet to be reported. Such comments virtually guarantee that the debate will be transformed quickly into an escalating war of opinionated arm-waving (as have prior FCC open sessions). Did we not just witness our crucially important health care debate devolve into just this sort of spectacle? And did candidate Obama not remind us, rightfully, that "words matter?"

    But worst of all is that despite the new chairman's lengthy service in the private sector, his remarks suggest a fundamental misunderstanding of how product innovation and the broadband market actually work. His view is that the government must pre-emptively step up to the plate to ensure that the Internet remains free and open, or innovation and investment will be curtailed, is just plain wrong.

    The reality is that aside from random acts, no pattern of broadband ISP misconduct has ever been proven. Major industry players know this and their actions suggest they are utterly untroubled by the current state of laissez-faire Internet regulation. Consider recent deals predicated on the belief that the Internet will remain open and bandwidth plentiful: NBC, Fox and Providence Equity Partners (and later Disney) invested $100M in Hulu at a $1B pre-launch valuation; Cisco acquired Pure Digital, maker of the Flip video camera for $600M in a bid to further fuel user-generated video; and Marc Andreessen's investment firm is participating in a buyout of Skype valuing the firm at $2.75B. Then there's Apple, which has invested untold tens of millions of dollars upgrading the iPhone and iPod Nano to have video capabilities. And let's not forget Netflix, Intel, Sony, Microsoft and many others who are moving aggressively forward with bandwidth-heavy broadband video products and services. Looking ahead, as I suggested last week looms "TV Everywhere 2.0," portending massive over-the-top video competition.

    But it's not just the giants that are investing. By my analysis, early and mid-stage broadband video-related companies raised almost $220M over the last 3 quarters, in the midst of the worst venture capital slump in memory. And as I'll report next week, Q3 '09 has been the highest fund-raising quarter of the last four. Deals are being done because history has repeatedly shown investors that in order to remain competitive and meet surging consumer demand, network operators are certain to continue to invest in upgrading their networks. When I helped start Continental Cablevision's high-speed Internet business 15 years ago, 1.5 mbps service was breakthrough; now 100 mbps or more is the state-of-art for wireline broadband.

    Contrary to Mr. Genachowski's fear that the market will be immobilized absent FCC intervention, industry participants are moving briskly forward, confident that market and competitive forces will compel network operators to continue creating abundant, open bandwidth to support their new services.

    This phenomenon appears to be true in the mobile space as well. AT&T's recent decision to accelerate its 3G wireless buildout is due mainly to high iPhone data traffic. And it should be noted that Apple's rejection of the Google Voice app (which continues a pattern of unfettered App Store selectivity by the company) raises the important question of who's the real gatekeeper when it comes to open wireless services - the network operator or the handset maker? How does Apple's newfound power figure into the FCC's regulatory paradigm?

    Let's be clear: it is absolutely essential that the Internet remain open. But imposing new net neutrality and Internet regulation is not the way to ensure this. Instead, net neutrality remains a solution in search of a problem. With brushfires burning in every corner of the American economy, Washington's policy-makers would be wise to focus on real problems, not imaginary ones. The Internet has worked magnificently to date and there's every reason to believe it will continue to do so. The last thing we need are the unintended consequences that government intervention often brings. For now, FCC vigilance is required, but new regulations are not.

    What do you think? Post a comment now.