The column below appeared today in The USA Today, as an opposing view to a USA Today editorial.

Opposing view on ‘Net neutrality’: Providers back Web freedom

By Kyle McSlarrow

On Tuesday, a federal court struck down a Federal Communications Commission order enforcing a rule that the agency hadn’t ever actually adopted. The court’s decision does not call into question an Internet policy adopted unanimously by the FCC in 2005 — endorsed by all broadband providers — promoting a free and open Internet. Thus, the decision has no effect on the Internet experience that consumers enjoy, and it doesn’t alter the government’s existing authorities to protect consumers or to police anti-competitive conduct.

Today, 65% of American households subscribe to services provided by a number of competing broadband companies to access a growing number of exciting applications that have changed the way we all communicate, conduct business, gather news and information and consume entertainment.

But there are still gaps. Not every community has broadband, and not every household that has access subscribes. Here, too, nothing in this week’s court decision affects our collective ability to implement the vision of a connected nation.

Broadband providers agree that consumers should have the freedom to navigate the Internet and access any legal content or application of their choice. That isn’t at issue. But fears of what broadband providers “could” do have prompted the usual and predictable calls for more — and, in some instances, incredibly far-reaching — government regulation of a marketplace that has been an American success story.

Why? In precisely two instances — and one of them is debatable — out of trillions of transactions over the past decade, has anyone even been able to point to a specific problem. Contrast that with the overwhelming evidence of hundreds of billions of investment to build and expand networks and the incredible array of new applications and sites flourishing because of a bipartisan policy of regulatory restraint.

We fully intend to work with the FCC and other policymakers to preserve the open Internet that is a reality today. But it is a massive overreaction to suggest that we should impose decades-old regulatory regimes designed for the days of Ma Bell and a government-sanctioned monopoly on the Internet.

The US Court of Appeals for the District of Columbia Circuit has overturned an FCC decision to impose a cap on cable companies – barring them from serving more than 30% of cable customers nationwide. The ruling reaffirms a 2001 court decision that rejected the same cap.

In vacating the FCC decision, the court found:

• The Commission had failed to demonstrate that allowing a cable operator to serve more than 30% of all cable subscribers would threaten to reduce either competition or diversity in programming
• The record is replete with evidence of ever increasing competition among video providers
• Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act
• Cable operators no longer have the bottleneck power over programming that concerned the Congress in 1992
• Over the same period there has been a dramatic increase both in the number of cable networks and in the programming available to subscribers.

Citing, “overwhelming evidence concerning ‘the dynamic nature of the communications marketplace,’ and the entry of new competitors at both the programming and the distribution levels”, the court found the FCC’s decision to be arbitrary and capricious.

In response, FCC Commissioner Robert McDowell issued the following statement:

It was clear in December 2007, when I dissented from the FCC decision to once again impose a 30 percent national cap on cable system ownership, that the effort to re-justify the very same cap that the D.C. Circuit first struck down in 2001 was even more vulnerable to court challenge the second time around.  Despite the Commission staff’s best efforts to provide post hoc empirical support for the chosen outcome, the court recognized that the 2007 analysis’ aging data and questionable assumptions sat oddly against the facts about new – and successful – competitors to cable systems in the multichannel video marketplace.  It should go without saying that, in the future, outcomes in our proceedings should be driven by the facts and law, rather than the other way around.

Regular readers of Cable Tech Talk may remember an exchange between Verizon’s Tom Tauke and NCTA’s Kyle McSlarrow that took place last June.  At issue was an FCC decision into allegations that Verizon had violated retention marketing restrictions and actively tried to prevent customers from leaving only after the customer had put in a request to terminate their service and move their number to cable.

The phone company maintains custody of the number you own. When Verizon gets a request to terminate service and transfer your number, they have four days in which they must comply.  This is known as the porting interval.  Our argument then, as now, was simple.  Verizon has every right to offer its customers whatever package it sees fit to offer 361 days out of the year.  They should not, however, be allowed to use advance notice of customer defection as leverage against their competitors.

The FCC agreed, and found that Verizon had been improperly using the porting interval for the purposes of retention marketing.  Verizon, unhappy with the FCC’s decision, filed suit in the US Court of Appeals for the DC Circuit in an attempt to get the FCC decision overturned.

Today, the court reaffirmed the FCC decision that Verizon was violating federal privacy rights by illegally using the number porting window for last gasp offers.

The ruling is a boost for consumers who are already saving billions of dollars each year because they have switched to cable’s digital phone service.

Once you have decided to leave a provider, they should not impede your ability to do so.  This decision is good for competition and will ensure consumers can change local telephone providers without undue harassment by the incumbent provider. NCTA also favors reducing the porting interval to two days to further expedite consumer requests.

For our part, we look forward to the continued competition for your telephone business.