The only thing in the middle of the road are dead skunks and yellow lines

Or so goes the Texas adage. Today’s 3-2 FCC vote on rules pertaining to so-called “Net Neutrality” may once again prove that compromise guarantees only one thing.  That nobody’s happy. The debate, which has been a five year long rollercoaster ride, came to a head in what is being described as “rules of the road” for the Internet. The inherent fuzziness of the provisions, which include such vague concepts such as “transparency,” “network management,” and “unreasonable discrimination” all but guarantee that the matter will ultimately be decided in the courts. Furthermore, the same rules don’t apply to fixed and mobile networks.

Fair to Middling

FCC Chairman Julius Genachowski made a point of characterizing the rules as “middle of the road” approach—though likely one where no side even feels a little bit ok about it. “On one end of the spectrum, there are those who say government should do nothing at all, on the other end of the spectrum are those who would adopt a set of detailed and rigid regulations.” The Chairman said he rejects “both extremes in favor of a strong and sensible framework - one that protects Internet freedom and openness and promotes robust innovation and investment."

A Little Hyperbole Goes a Long Way

Indeed, critics are vocal on both sides, with opponents comparing it to the “government takeover of the Internet,” and Net Neutrality supporters calling it “worse than nothing.” Outspoken Senator Al Franken calls it the “most important free speech issue of our time,” and surmised that “ If corporations are allowed to prioritize content on the Internet, or they are allowed to block applications you access on your iPhone, there is nothing to prevent those same corporations from censoring political speech.” Republican FCC Commissioner Robert McDowell, in a Wall Street Journal Op/Ed piece said that the new rules will squelch innovation and investment, and reflect more “coercion than consensus or compromise.” He goes on to say: “On this winter solstice, we will witness jaw-dropping interventionist chutzpah as the FCC bypasses branches of our government in the dogged pursuit of needless and harmful regulation. The darkest day of the year may end up marking the beginning of a long winter's night for Internet freedom.”

Netting Out Net Neutrality

It’s still not over

It’s not over—not even by a long shot. April’s ruling by the U.S. Court of Appeals for the District of Columbia challenged the very role of the FCC in regulating broadband. Certainly, this is yet to be scrutinized and debated in Congress, and ultimately in the courts.

Please Have Exact Change

While the rules voted on today preclude service providers from blocking “lawful content,” they apparently do little to discourage the practice of “paid prioritization. ” The rules, set to go into effect in 2011, create a “toll road” of sorts on the metaphorical information superhighway—a road that companies such Google and Netflix may be forced to take.

FUD Factor 2.0

Markets don’t like fear, uncertainty and doubt. We all know that. And while Chairman Genachowski suggest that the rules “increase certainty in the marketplace, and spur investment both at the edge and in the core of our broadband networks”, the result may be just the opposite. Well, that’s what it smells like anyway.  -Ben Piper

Downtown LA’s Nokia Theater, venue of the Season 7 and 8 finals of American Idol, played host for a highly anticipated - though somewhat poorly attended - keynote from FCC Chairman Julius Genachowsi.  The interview format, moderated by NCTA president Kyle McSlarrow, was heavy on platitudes, and light on real news. “Let’s roll up our sleeves, and get down to business!” seemed to be overarching theme. In a very brief press conference later in the day, the Chairman did respond to some slightly tougher questions - and gave a pretty non-responsive answer to one posed by yours truly A “Healthy and Fair” Third Way? April’s court decision “has created a problem, and has damaged the legal foundation,"  according to Chairman Genachowski.  The FCC’s was faced with several options, according to a statement issued by the FCC:

• Do Nothing

The Commission could continue relying on Title I “ancillary” authority, and try to anchor actions like reforming universal service and preserving an open Internet by indirectly drawing on provisions in Title II of the Communications Act (e.g., sections 201, 202, and 254) that give the Commission direct authority over entities providing “telecommunications services.”

• Deploy the “Nuclear Option”

The Commission could fully “reclassify” Internet communications as a “telecommunications service,” restoring the FCC’s direct authority over broadband communications networks but also imposing on providers of broadband access services dozens of new regulatory requirements.

• Third Way

With each of these deemed “too extreme,” the Commission instead has decided on a so-called “Third Way,”  a “Healthy and fair option” which would:

• �
  • Recognize the transmission component of broadband access service—and only this component— as a telecommunications service;
  • Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that, prior to the Comcast decision, were widely believed to be within the Commission’s purview for broadband;
  • Simultaneously renounce—that is, forbear from—application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and
  • Put in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.

Unfortunately, the FCC's chosen path, reclassifying ISPs as common carriers and "forbearing" the majority of Title II regulations, hasn’t done much to instill confidence.  Critics say it opens the door to potential pricing regulation going forward, though the Chairman insists that is “off the table.” The key enforced provision, Section 202, prohibits carriers from making any "unjust or unreasonable discrimination" in the way it charges.  Section 208, another provision on the table for enforcement, allows carriers, enterprises, and individuals to file complaints directly with the FCC for violations.

Buckle Up and Hang On

Along with many others, I have long operated under the assumption that, in principle, net neutrality was decided with the election of Barack Obama in November 2008. The latest court rulings have insinuated more fear, uncertainty and doubt into the mix.  And markets don't adapt well to fear, uncertainty and doubt.  I would suggest everyone buckle in tight, because this ride isn't over.  

See You in Court!

The process will be slow, there will be numerous legislative challenges and speed bumps--Representative Cliff Stearns from Florida recently introduced a bill that would require the FCC to deliver a detailed cost-benefit analysis to Congress before moving forward.  When I asked the Chairman yesterday about this, he only said that FCC "will work with Congress as a resource." Not to mention the court cases…we should anticipate numerous legal challenges in the forthcoming months, and it wouldn't surprise me to see this ultimately end up in the Supreme Court. The real brunt of this will be felt by OTT ecosystem players.  Over the Top, by its very nature, is predicated on an open Internet. Twelve, eighteen, or twenty-four additional months of limbo is the last thing these guys need.   -Ben Piper

The depth of the recession in the US consumer electronics market was highlighted today by CEA data which confirmed a decline in dollar revenues in 2009 of 12%. The outlook for 2010 improves but only in the sense that the rate of decline falls to 3%. In the meantime we're hearing news of new 3D TV channels already, with both ESPN and Discovery throwing their hats into the ring. This is great, if expected, news for the many 3D-ready TVs we expect to see over the next few days. At this evening's CES Unveiled event Sensio were showing their passive 3DTV, even though the company today announced its partnership with Visio to launch an active 3DTV later this year. Mitsubishi was also showing its laser 3DTV with the adaptor which will be necessary for compatibility with Blu-ray 3D players when they are lauinched. Logitech was showing its new Lapdesk N700, a laptop “cushion” with in-built speakers designed for enhanced laptop usage in the comfort of the armchair. The peripheral retails at $89.99 and also features an in-built cooling fan to prevent over-hearing, a familiar problem for those many TV viewers who now sit with a laptop on their knees. Logitech have thoughtfully added a grip to help keep the laptop steady, but unfortunately in my case it failed to prevent the Macpro falling to the floor. No damage done, luckily, but perhaps evidence of a need for further improvement in design. Logitech was also demonstrating the fruits of its recently closed acquisition of Lifesize Communications, a videoconferencing specialist. On display was its Passport set-top videoconferencing device. This retails at $2500 and allows anyone with a minimum 2-way 1Mbps broadband connection to communicate using HD video (720p). The service downscales to lower resolutions for slower bandwidth connections. Logitech claims that this device is a third of the price of any other similar product on the market. That may be true today but is unlikely to remain so for much longer. Videoconferencing and telepresence are shaping up to be one of the emerging trends of this CES and we will hear a lot more over the next few days, in addition to the Skype/Panasonic/LG announcement today. Yet another OTT video set-top box was being demonstrated by Syabas with its Popbox product. This grew out of the company’s Popcorn Hour device. The Popbox has been designed to be especially user-friendly, and the user interface does appear attractive and accessible. The service integrates currently 20 “content application channels”, which means things like Netflix, and is working with 200 application developers. It will launch in March 2010 and retail at $129, plus $20 for the optional WiFi module. The Popbox is 1080p-capable, although the only 1080p content was demonstration material. If Syabas manages to sign 1080p deals with content providers it will certainly be a step ahead of most competitors. ProVision CEO Steve Cliffe was confident enough in his company’s wireless HD technology to carry a laptop across the show floor while it streamed 1080i HD content, and there was no loss or deterioration in signal. This UK firm was founded by professors at Bristol University, and uses proprietary error correction and RF management techniques to improve HD video streaming over 802.11n. The company is talking to set-top box and TV manufacturers looking to support HD distribution to multiple home devices. Another UK firm, Imagination Technologies, was launching its Pure digital radio products for the US market. Pure is the leader in the UK but virtually unknown overseas. It will, rightly, tread carefully as it enters the notoriously challenging US market, and will obviously (since the standard is not used) drop DAB from its US product line-up, instead concentrating purely (sorry) on internet radio. Its Sensia product is the highlight of the range and features a full-colour touch screen LCD display as well as additional interactive capabilities like Twitter and Facebook. Pure confirmed to us that video-capable devices are a natural step forward and can be expected in the next year or so. Client Reading: HDTV: Standards Muddle Clouds Outlook For Wireless Displays

A year ago AT&T introduced tiered broadband pricing in the US. Its main DSL competitor, Verizon, markets "High Speed Internet", not "up to 8Mbps", and also offers the following small print: "Speeds and service availability vary. High Speed Internet will be provisioned based on Verizon line qualification requirements at 768 Kbps or up to 1 Mbps (1 Mbps service); at 1.5 Mbps or up to 3 Mbps (3 Mbps service); or at 5 Mbps or up to 7.1 Mbps (up to 7.1 Mbps service)." So American DSL providers are being much more transparent than their UK counterparts by clearly stating the performance bands, ie minimum and maximum speeds. Interestingly, they also do not claim a maximum of 8Mbps for standard DSL, as in the UK, but 7.1Mbps. This supports the Ofcom research results, that no one paying for “up to 8Mbps” can receive more than 7Mbps. It’s time for Ofcom to enforce similar marketing requirements in the UK. I won’t hold my breath. Twitter: twitter.com/DavidMercer_SA Client Reading: Broadband Service Provider Performance Benchmarking: Europe Q1 2009