Mobile, perhaps not coincidentally, has also been historically a quite lightly regulated industry. But emerging is a sort of slow boil of small but many rules, or proposed rules, that could threaten the sector’s success. I’m thinking of the “bill shock” proceeding, in which the FCC is looking at billing practices and various “remedies.” And the failure to settle the D block public safety spectrum issue in a timely manner. And now we have a group of rural mobile providers who want the FCC to set prices in the data roaming market.

You remember that “roaming” is when service provider A pays provider B for access to B’s network so that A’s customers can get service when they are outside A’s service area, or where it has capacity constraints, or for redundancy. These roaming agreements are numerous and have always been privately negotiated. The system works fine.

But now a group of provider A’s, who may not want to build large amounts of new network capacity to meet rising demand for mobile data, like video, Facebook, Twitter, and app downloads, etc., want the FCC to mandate access to B’s networks at regulated prices. And in this case, the B’s have spent many tens of billions of dollars in spectrum and network equipment to provide fast data services, though even these investments can barely keep up with blazing demand.

The FCC has never regulated mobile phone rates, let alone data rates, let alone data roaming rates. And of course mobile voice and data rates have been dropping like rocks. These few rural providers are asking the FCC to step in where it hasn’t before. They are asking the FCC to impose old-time common carrier regulation in a modern competitive market – one in which the FCC has no authority to impose common carrier rules and prices.

In the chart above, we see U.S. info-tech investment in 2010 approached $500 billion. Communications equipment and structures (like cell phone towers) surpassed $105 billion. The fourth generation of mobile networks is just in its infancy. We will need to invest many tens of billions of dollars each year for the foreseeable future both to drive and accommodate Internet innovation, which spreads productivity enhancements and wealth across every sector in the economy.

It is perhaps not surprising that a small number of service providers who don’t invest as much in high-capacity networks might wish to gain artificially cheap access to the networks of the companies who invest tens of billions of dollars per year in their mobile networks alone. Who doesn’t like lower input prices? Who doesn’t like his competitors to do the heavy lifting and surf in his wake? But the also not surprising result of such a policy could be to reduce the amount that everyone invests in new networks. And this is simply an outcome the technology industry, and the entire country, cannot afford. The FCC itself has said that “broadband is the great infrastructure challenge of the early 21st century.”

Economist Michael Mandel has offered a useful analogy:

new regulations [are] like tossing small pebbles into a stream. Each pebble by itself would have very little effect on the flow of the stream. But throw in enough small pebbles and you can make a very effective dam.

Why does this happen? The answer is that each pebble by itself is harmless. But each pebble, by diverting the water into an ever-smaller area, creates a ‘negative externality’ that creates more turbulence and slows the water flow.

Similarly, apparently harmless regulations can create negative externalities that add up over time, by forcing companies to spending time and energy meeting the new requirements. That reduces business flexibility and hurts innovation and growth.

It may be true that none of the proposed new rules for wireless could alone bring down the sector. But keep piling them up, and you can dangerously slow an important economic juggernaut. Price controls for data roaming are a terrible idea.

And Nick Schulz’s video interview of Cowen:

In the wake of the FCC’s net neutrality Order, published on December 23, several of us have focused on the Commission’s confused and contradictory treatment of “paid prioritization.” In the Order, the FCC explicitly permits some forms of paid priority on the Internet but strongly discourages other forms.

From the beginning — that is, since the advent of the net neutrality concept early last decade — I argued that a strict neutrality regime would have outlawed, among other important technologies, CDNs, which prioritized traffic and made (make!) the Web video revolution possible.

So I took particular notice of this new interview (sub. required) with Akamai CEO Paul Sagan in the February 2011 issue of MIT’s Technology Review:

TR: You’re making copies of videos and other Web content and distributing them from strategic points, on the fly.

Paul Sagan: Or routes that are picked on the fly, to route around problematic conditions in real time. You could use Boston [as an analogy]. How do you want to cross the Charles to, say, go to Fenway from Cambridge? There are a lot of bridges you can take. The Internet protocol, though, would probably always tell you to take the Mass. Ave. bridge, or the BU Bridge, which is under construction right now and is the wrong answer. But it would just keep trying. The Internet can’t ever figure that out — it doesn’t. And we do.

There it is. Akamai and other content delivery networks (CDNs), including Google, which has built its own CDN-like network, “route around” “the Internet,” which “can’t ever figure . . . out” the fastest path needed for robust packet delivery. And they do so for a price. In other words: paid priority. Content companies, edge innovators, basement bloggers, and poor non-profits who don’t pay don’t get the advantages of CDN fast lanes.

So important are CDNs in today’s Internet architecture that the FCC felt the need to explicitly exempt them. So much for a “neutral” policy.

In footnote 235 and elsewhere, the FCC seems to think CDNs are all about geographic advantages (to overcome speed-of-light delay) and server-consolidation (yielding infrastructure efficiencies to content and app providers). True enough, but the FCC ignores what Sagan believes is his key service — real-time prioritization.

The net neutrality Order allows CDN prioritization but says paid priority by broadband service providers on the customer link “would raise significant cause for concern,” and “as a general matter, it is unlikely that pay for priority would satisfy the ‘no unreasonable discrimination’ standard.”

Numerous legal infirmities are likely to kill the entire Order when reviewed by the courts. But the substantive technological problems and inconsistencies embodied in the paid priority section need to be examined. Parsing these items should help us all understand how this very complex thing we call the Internet works . . . perhaps chasten the FCC when it attempts to enforce its new rule . . . and hopefully inform a better policy should this Order be vacated.

The FCC fails to explain persuasively why CDN prioritization is much different from last-mile broadband prioritization. Even if a meaningful distinction were demonstrated, we’d still be left with a probable ban on last-mile prioritization, which is a problem because last-mile prioritization will likely prove essential for a variety of real-time communication services.

The FCC’s case really rests on Section II.B, which is all about the supposed motives of broadband service providers. Apparently, the FCC thinks CDNs should be exempt because they have no malign intent whereas broadband service providers are awash in “incentives to limit Internet openness.”

The FCC says broadband providers may have incentives to

(1) disadvantage some edge providers by blocking or controlling the transmission to end-users;

(2) charge edge providers for access or priority to end-users; and

(3) “degrade or decline to increase the quality of the service they provide to non-prioritized traffic.”

The “no blocking” principle that all parties agreed to way back in 2005 would seem to take care of ominous incentive (1). And a much simpler reliance on existing consumer and/or antitrust law could easily defang ominous incentives (2) and (3).

But these specifics fail to address the larger point: Is it even true that most incentives steer broadband service providers toward a less open Internet? Did the FCC even consider incentives that point in the opposite direction — toward a more open Internet? I can’t find any evidence they did.

The FCC apparently cannot see that the vast bounty of content and apps on the Web created an entirely new market for telcos and cablecos. Namely, broadband Internet access. (Of course, in the typical two-sided coin of positive-sum innovation, it was broadband that created a new market for content and apps.)

As I wrote in The Wall Street Journal way back in 2006:

Blocking and degrading Internet access would quite simply be business suicide for incumbent service providers. Compared to cable’s other content operations like basic and premium TV channels, its broadband cable modem services are more than 50 times as profitable per unit of bandwidth consumed. This means that with just a tiny sliver of the usable bandwidth in its pipes, cable’s Internet services supply about 20% of the revenue and the majority of their net income. Does anyone really think the bandwidth providers are going to kill their golden goose?

Yes, it’s true that popular broadband Internet services also cannibalize some existing products. Long distance voice went away, and Web video is now beginning to compete with cable TV. But the telcos and cablecos know they will never be the key creators of content and apps — not compared to the rest of the world. They get the wonderful Web for free. Compared to hefty sums they must pay for TV content (e.g., ESPN) or movies, broadband access is a simple business. Why decimate the value of one of their three basic products (the others being TV and mobile) by closing off big chunks of the Web to their customers? It would be dumb. It won’t happen. It hasn’t happened.

So the FCC twists itself in pretzels trying to use a high-minded “net neutrality” or “open Internet” policy to do what it really wants — the much more vulgar task of regulating the telcos and cablecos — while exempting (for now) technologies and services that it knows are absolutely essential to a well-functioning Internet but are not at all “neutral” or “open” according to the FCC’s own criteria.

I’m glad CDNs are not covered by the rules, but in its feeble attempt to explain the broadband-CDN distinction, the FCC overlooked the fact that the no-priority rules could limit or block innovation in key real-time communications services.

CDNs are good for speeding static content and even putting some broadcast content (like live sports events) onto fast-lanes to consumers. (Akamai’s record traffic day to that point was its Web broadcast of the Masters golf tournament last spring.) But when it comes to decentralized, real-time, interactive, unpredictable, transactional content — like high-resolution video conferencing or online gaming — CDNs won’t do. We will need some form of in-stream prioritization.

But this is a matter of engineering and economics. There are several ways to achieve quality-of-experience for multimedia applications. We can create virtual (logical) channels using packet priority technologies. We can dedicate frequency (analog)channels using cable-TV like banding or, in the optical realm, wavelength division multiplexing (WDM) within a wire. Or we can deploy more wires (or wireless spectrum). There are technical and financial tradeoffs between using computer power (switching) and communications power (bandwidth) to achieve these ends. They depend on the state of the existing infrastructure, the cost-performance ratios of the technologies and resources (which change over time), and the strategic architecture and business model of the network. In the end we will either prioritize digitally on the last-mile link or prioritize incoming/outgoing traffic onto/from a frequency channel just outside the FCC “no priority” zone. But that will then raise the question of whether providing such channels is itself paid priority. Do we begin to see why these are not questions that can be answered by crude politics?

By exempting CDNs, the FCC acknowledges their herculean task in delivering multimedia to the masses. Akamai cogently described the state of play when unveiling its new HD video service:

Why is it so difficult to deliver an optimal end-user experience? Simply put, it’s challenging to reliably deliver high-throughput data streams across the Web – especially to large audiences.

The fundamental challenges of online video delivery lie within the Internet itself. Given that the Internet is made up of over 13,000 competing networks, it works surprisingly well. But its many bottlenecks and capacity limitations are unpredictable and difficult to manage – lying outside the control of any single entity or group. While these problems affect the delivery of all types of Internet content, they are particularly challenging for video, which requires the transfer of large data volumes at very high rates.

But if delivering static and broadcast content is a challenge, doubly so for the coming wave of real-time interactive cinema-quality video. It’s a challenge CDNs cannot conquer and will require new technologies, architectures, and business models — many of them requiring some form of broadband prioritization — to master.

It would be a shame if the FCC’s new Order interrupted this essentially technological and economic story because of a dubious analysis that narrowly focuses on the supposed political motivations of broadband service providers and completely ignores powerful incentives pushing all parties toward Internet openness.

So, here we are. Yesterday the FCC voted 3-2 to issue new rules governing the Internet. I expect the order to be struck down by the courts and/or Congress. Meantime, a few observations:

• The order appears to be more intrusive on the topic of “paid prioritization” than was Chairman Genachowski’s outline earlier this month. (Keep in mind, we haven’t seen the text. The FCC Commissioners themselves only got access to the text at 11:42 p.m. last night.)
• If this is true, if the “nondiscrimination” ban goes further than a simple reasonableness test, which itself would be subject to tumultuous legal wrangling, then the Net Neutrality order could cause more problems than I wrote about in this December 7 column.
• A prohibition or restriction on “paid prioritization” is a silly rule that belies a deep misunderstanding of how our networks operate today and how they will need to operate tomorrow. Here’s how I described it in recent FCC comments:

In September 2010, a new network company that had operated in stealth mode digging ditches and boring tunnels for the previous 24 months, emerged on the scene. As Forbes magazine described it, this tiny new company, Spread Networks

“spent the last two years secretly digging a gopher hole from Chicago to New York, usurping the erstwhile fastest paths. Spread’s one-inch cable is the latest weapon in the technology arms race among Wall Street houses that use algorithms to make lightning-fast trades. Every day these outfits control bigger stakes of the markets – up to 70% now. ‘Anybody pinging both markets  has to be on this line, or they’re dead,’ says Jon A. Najarian, cofounder of OptionMonster, which tracks high-frequency trading.

“Spread’s advantage lies in its route, which makes nearly a straight line from a data center  in Chicago’s South Loop to a building across the street from Nasdaq’s servers in Carteret, N.J. Older routes largely follow railroad rights-of-way through Indiana, Ohio and Pennsylvania. At 825 miles and 13.3 milliseconds, Spread’s circuit shaves 100 miles and 3 milliseconds off of the previous route of lowest latency, engineer-talk for length of delay.”

Why spend an estimated $300 million on an apparently duplicative route when numerous seemingly similar networks already exist? Because, Spread says, three milliseconds matters.

Spread offers guaranteed latency on its dark fiber product of no more than 13.33 milliseconds. Its managed wave product is guaranteed at no more than 15.75 milliseconds. It says competitors’ routes between Chicago and New York range from 16 to 20 milliseconds. We don’t know if Spread will succeed financially. But Spread is yet another demonstration that latency is of enormous and increasing importance. From entertainment to finance to medicine, the old saw is truer than ever: time is money. It can even mean life or death.

A policy implication arises. The Spread service is, of course, a form a “paid prioritization.” Companies are paying “eight to 10 times the going rate” to get their bits where they want them, when they want them.5 It is not only a demonstration of the heroic technical feats required to increase the power and diversity of our networks. It is also a prime example that numerous network users want to and will pay money to achieve better service.

One way to achieve better service is to deploy more capacity on certain links. But capacity is not always the problem. As Spread shows, another way to achieve better service is to build an entirely new 750-mile fiber route through mountains to minimize laser light delay. Or we might deploy a network of server caches that store non-realtime data closer to the end points of networks, as many Content Delivery Networks (CDNs) have done. But when we can’t build a new fiber route or store data – say, when we need to get real-time packets from point to point over the existing network – yet another option might be to route packets more efficiently with sophisticated QoS technologies. Each of these solutions fits a particular situation. They take advantage of, or submit to, the technological and economic trade-offs of the moment or the era. They are all legitimate options. Policy simply must allow for the diversity and flexibility of technical and economic options – including paid prioritization – needed to manage networks and deliver value to end-users.

Depending on how far the FCC is willing to take these misguided restrictions, it could actually lead to the very outcomes most reviled by “open Internet” fanatics — that is, more industry concentration, more “walled gardens,” more closed networks. Here’s how I described the possible effect of restrictions on the important voluntary network management tools and business partnerships needed to deliver robust multimedia services:

There has also been discussion of an exemption for “specialized services.” Like wireless, it is important that such specialized services avoid the possible innovation-sapping effects of a Net Neutrality regulatory regime. But the Commission should consider several unintended consequences of moving down the path of explicitly defining, and then exempting, particular “specialized” services while choosing to regulate the so-called “basic,” “best-effort,” or “entry level” “open Internet.”

Regulating the “basic” Internet but not “specialized” services will surely push most of the network and application innovation and investment into the unregulated sphere. A “specialized” exemption, although far preferable to a Net Neutrality world without such an exemption, would tend to incentivize both CAS providers and ISPs service providers to target the “specialized” category and thus shrink the scope of the “open Internet.”

In fact, although specialized services should and will exist, they often will interact with or be based on the “basic” Internet. Finding demarcation lines will be difficult if not impossible. In a world of vast overlap, convergence, integration, and modularity, attempting to decide what is and is not “the Internet” is probably futile and counterproductive. The very genius of the Internet is its ability to connect to, absorb, accommodate, and spawn new networks, applications and services. In a great compliment to its virtues, the definition of the Internet is constantly changing. Moreover, a regime of rigid quarantine would not be good for consumers. If a CAS provider or ISP has to build a new physical or logical network, segregate services and software, or develop new products and marketing for a specifically defined “specialized” service, there would be a very large disincentive to develop and offer simple innovations and new services to customers over the regulated “basic” Internet. Perhaps a consumer does not want to spend the extra money to jump to the next tier of specialized service. Perhaps she only wants the service for a specific event or a brief period of time. Perhaps the CAS provider or ISP can far more economically offer a compelling service over the “basic” Internet with just a small technical tweak, where a leap to a full-blown specialized service would require more time and money, and push the service beyond the reach of the consumer. The transactions costs of imposing a “specialized” quarantine would reduce technical and economic flexibility on both CAS providers and ISPs and, most crucially, on consumers.

Or, as we wrote in our previous Reply Comments about a related circumstance, “A prohibition of the voluntary partnerships that are likely to add so much value to all sides of the market – service provider, content creator, and consumer – would incentivize the service provider to close greater portions of its networks to outside content, acquire more content for internal distribution, create more closely held ‘managed services’ that meet the standards of the government’s ‘exclusions,’ and build a new generation of larger, more exclusive ‘walled gardens’ than would otherwise be the case. The result would be to frustrate the objective of the proceeding. The result would be a less open Internet.”

It is thus possible that a policy seeking to maintain some pure notion of a basic “open Internet” could severely devalue the open Internet the Commission is seeking to preserve.

All this said, the FCC’s legal standing is so tenuous and this order so rooted in reasoning already rejected by the courts, I believe today’s Net Neutrality rule will be overturned. Thus despite the numerous substantive and procedural errors committed on this “darkest day of the year,” I still expect the Internet to “survive and thrive.”

The FCC appears to have taken the worst proposals for regulating the Internet off the table. This is good news for an already healthy sector. And given info-tech’s huge share of U.S. investment, it’s good news for the American economy as a whole, which needs all the help it can get.

In a speech this morning, FCC chair Julius Genachowski outlined a proposal he hopes the other commissioners will approve at their December 21 meeting. The proposal, which comes more than a year after the FCC issued its Notice of Proposed Rule Making into “Preserving the Open Internet,” appears mostly to codify the “Four Principles” that were agreed to by all parties five years ago. Namely:

• No blocking of lawful data, websites, applications, services, or attached devices.
• Transparency. Consumers should know what the services and policies of their providers are, and what they mean.
• A prohibition of “unreasonable discrimination,” which essentially means service providers must offer their products at similar rates and terms to similarly situated customers.
• Importantly, broadband providers can manage their networks and use new technologies to provide fast, robust services. Also, there appears to be even more flexibility for wireless networks, though we don’t yet know the details.

(All the broad-brush concepts outlined today will need closer scrutiny when detailed language is unveiled, and as with every government regulation, implementation and enforcement can always yield unpredictable results. One also must worry about precedent and a new platform for future regulation. Even if today’s proposal isn’t too harmful, does the new framework open a regulatory can of worms?)

So, what appears to be off the table? Most of the worst proposals that have been flying around over the last year, like . . .

• Reclassification of broadband as an old “telecom service” under Title II of the Communications Act of 1934, which could have pierced the no-government seal on the Internet in a very damaging way, unleashing all kinds of complex and antiquated rules on the modern Net.
• Price controls.
• Rigid nondiscrimination rules that would have barred important network technologies and business models.
• Bans of quality-of-service technologies and techniques (QoS), tiered pricing, or voluntary relationships between ISPs and content/application/service (CAS) providers.
• Open access mandates, requiring networks to share their assets.

Many of us have long questioned whether formal government action in this arena is necessary. The Internet ecosystem is healthy. It’s growing and generating an almost dizzying array of new products and services on diverse networks and devices. Communications networks are more open than ever. Facebook on your BlackBerry. Netflix on your iPad. Twitter on your TV. The oft-cited world broadband comparisons, which say the U.S. ranks 15h, or even 26th, are misleading. Those reports mostly measure household size, not broadband health. Using new data from Cisco, we estimate the U.S. generates and consumes more network traffic per user and per capita than any nation but South Korea. (Canada and the U.S. are about equal.) American Internet use is twice that of many nations we are told far outpace the U.S. in broadband. Heavy-handed regulation would have severely depressed investment and innovation in a vibrant industry. All for nothing.

Lots of smart lawyers doubt the FCC has the authority to issue even the relatively modest rules it outlined today. They’re probably right, and the question will no doubt be litigated (yet again), if Congress does not act first. But with Congress now divided politically, the case remains that Mr. Genachowski’s proposal is likely the near-term ceiling on regulation. Policy might get better than today’s proposal, but it’s not likely to get any worse. From what I see today, that’s a win for the Internet, and for the U.S. economy.

— Bret Swanson

UPDATE: Caveats. Already! If it’s true, as Nick Schulz notes, that FCC Commissioner Copps and others really think Chairman Genachowski’s proposal today “is the beginning . . . not the end,” then all bets are off. The whole point is to relieve the overhanging regulatory threat so we can all move forward. If this is just a platform for ever more intrusive regulation (camel’s nose, foot in the door, etc.), then Commissioner McDowell is right: we should not allow even the smallest step in this direction.

The FCC’s apparent about-face on Net Neutrality is really perplexing.

Over the past few weeks it looked like the Administration had acknowledged economic reality (and bipartisan Capitol Hill criticism) and turned its focus to investment and jobs. Outgoing NEC Director Larry Summers and Commerce Secretary Gary Locke announced a vast expansion of available wireless spectrum, and FCC chairman Julius Genachowski used his speech to the NARUC state regulators to encourage innovation and employment. Gone were mentions of the old priorities — intrusive new regulations such as Net Neutrality and Title II reclassification of modern broadband as an old telecom service. Finally, it appeared, an already healthy and vibrant Internet sector could stop worrying about these big new government impositions — and years of likely litigation — and get on with building the 21st century digital infrastructure.

But then came word at the end of last week that the FCC would indeed go ahead with its new Net Neutrality regs. Perhaps even issuing them on December 22, just as Congress and the nation take off for Christmas vacation [the FCC now says it will hold its meeting on December 15]. When even a rare  economic sunbeam is quickly clouded by yet more heavy-handedness from Washington, is it any wonder unemployment remains so high and growth so low?

Any number of people sympathetic to the economy’s and the Administration’s plight are trying to help. Last week David Leonhardt of the New York Times pointed the way, at least in a broad strategic sense: “One Way to Trim the Deficit: Cultivate Growth.” Yes, economic growth! Remember that old concept? Economist and innovation expert Michael Mandel has suggested a new concept of “countercyclical regulatory policy.” The idea is to lighten regulatory burdens to boost growth in slow times and then, later, when the economy is moving full-steam ahead, apply more oversight to curb excesses. Right now, we should be lightening burdens, Mandel says, not imposing new ones:

it’s really a dumb move to monkey with the vibrant and growing communications sector when the rest of the economy is so weak. It’s as if you have two cars — one running, one in the repair shop — and you decide it’s a good time to rebuild the transmission of the car that actually works because you hear a few squeaks.

Apparently, FCC honchos met with interested parties this morning to discuss what comes next. Unfortunately, at a time when we need real growth, strong growth, exuberant growth! (as Mandel would say), the Administration appears to be saddling an economy-lifting reform (wireless spectrum expansion) with leaden regulation. What’s the point of new wireless spectrum if you massively devalue it with Net Neutrality, open access, and/or Title II?

One step forward, two steps back (ten steps back?) is not an exuberant growth and jobs strategy.

In what may be the final round of comments in the Federal Communications Commission’s Net Neutrality inquiry, I offered some closing thoughts, including:

• Does the U.S. really rank 15th — or even 26th — in the world in broadband? No.
• The U.S. generates and consumes substantially more IP traffic per Internet user and per capita than any other region of the world.
• Among individual nations, only South Korea generates significantly more IP traffic than the U.S. (Canada and the U.S. are equal.)
• U.S. wired and wireless broadband networks are among the world’s most advanced, and the U.S. Internet ecosystem is healthy and vibrant.
• Latency is increasingly important, as demonstrated by a young company called Spread Networks, which built a new optical fiber route from Chicago to New York to shave mere milliseconds off the existing fastest network offerings. This example shows the importance — and legitimacy — of “paid prioritization.”
• As we wrote: “One way to achieve better service is to deploy more capacity on certain links. But capacity is not always the problem. As Spread shows, another way to achieve better service is to build an entirely new 750-mile fiber route through mountains to minimize laser light delay. Or we might deploy a network of server caches that store non-realtime data closer to the end points of networks, as many Content Delivery Networks (CDNs) have done. But when we can’t build a new fiber route or store data — say, when we need to get real-time packets from point to pointover the existing network — yet another option might be to route packets more efficiently with sophisticated QoS technologies.”
• Exempting “wireless” from any Net Neutrality rules is necessary but not sufficient to protect robust service and innovation in the wireless arena.
• “The number of Wi-Fi and femtocell nodes will only continue to grow. It is important that they do, so that we might offload a substantial portion of traffic from our mobile cell sites and thus improve service for users in mobile environments. We will expect our wireless devices to achieve nearly the robustness and capacity of our wired devices. But for this to happen, our wireless and wired networks will often have to be integrated and optimized. Wireline backhaul — whether from the cell site or via a residential or office broadband connection — may require special prioritization to offset the inherent deficiencies of wireless. Already, wireline broadband companies are prioritizing femtocell traffic, and such practices will only grow. If such wireline prioritization is restricted, crucial new wireless connectivity and services could falter or slow.”
• The same goes for “specialized services,” which some suggest be exempted from new Net Neutrality regulations. Again, necessary but not sufficient.
• “Regulating the ‘basic’ Internet but not ‘specialized’ services will surely push most of the network and application innovation and investment into the unregulated sphere. A ‘specialized’ exemption, although far preferable to a Net Neutrality world without such an exemption, would tend to incentivize both CAS providers and ISPs service providers to target the ‘specialized’ category and thus shrink the scope of the ‘open Internet.’ In fact, although specialized services should and will exist, they often will interact with or be based on the ‘basic’ Internet. Finding demarcation lines will be difficult if not impossible. In a world of vast overlap, convergence, integration, and modularity, attempting to decide what is and is not ‘the Internet’ is probably futile and counterproductive. The very genius of the Internet is its ability to connect to, absorb, accommodate, and spawn new networks, applications and services. In a great compliment to its virtues, the definition of the Internet is constantly changing.”

New numbers from Cisco allow us to update our previous comparison of actual Internet usage around the world. We think this is a far more useful metric than the usual “broadband connections per 100 inhabitants” used by the OECD and others to compile the oft-cited world broadband rankings.

What the per capita metric really measures is household size. And because the U.S. has more people in each household than many other nations, we appear worse in those rankings. But as the Phoenix Center has noted, if each OECD nation reached 100% broadband nirvana — i.e., every household in every nation connected — the U.S. would actually fall from 15th to 20th. Residential connections per capita is thus not a very illuminating measure.

But look at the actual Internet traffic generated and consumed in the U.S.

The U.S. far outpaces every other region of the world. In the second chart, you can see that in fact only one nation, South Korea, generates significantly more Internet traffic per user than the U.S. This is no surprise. South Korea was the first nation to widely deploy fiber-to-the-x and was also the first to deploy 3G mobile, leading to not only robust infrastructure but also a vibrant Internet culture. The U.S. dwarfs most others.

If the U.S. was so far behind in broadband, we could not generate around twice as much network traffic per user compared to nations we are told far exceed our broadband capacity and connectivity. The U.S. has far to go in a never-ending buildout of its communications infrastructure. But we invest more than others, we’ve got better broadband infrastructure overall, and we use broadband more — and more effectively (see the Connectivity Scorecard and The Economist’s Digital Economy rankings) — than almost any other nation.

The conventional wisdom on this one is just plain wrong.

The Federal Communications Commission recognized these trends and needs in its new National Broadband Plan. It set the bold goal of unleashing 500 MHz of mostly dormant wireless spectrum for more productive use in new broadband Internet and media applications.

On March 29, the FCC had a chance to begin putting its Plan into action when it approved the acquisition of SkyTerra by Harbinger Capital. The result of the merger is a new wireless company that will use both MSS satellite spectrum and so-called ATC terrestrial spectrum to deliver a new hybrid mobile service. Harbinger announced it would build a nationwide, wholesale, “open access” 4G broadband wireless network at the cost of $6 billion. Although not part of the FCC’s 500 MHz push, the new Harbinger strategy aligns nicely with the goal of more, better, and broader wireless access and options throughout the country (in this case, Canada, too).

But the FCC order, which was not voted by the full commission but issued by the bureau chiefs, contains two curious provisions. The provisions restrict Harbinger’s cooperation with two important mobile service providers and could hinder the very goal of extending more wireless coverage to more Americans.

In an attachment to its acquisition approval, the FCC said Harbinger may not lease capacity or otherwise partner with the two largest U.S. mobile phone companies — Verizon and AT&T — without the FCC’s prior permission. The FCC also barred Verizon and AT&T, should any cooperative agreement or lease be allowed, from consuming more than 25% of the bytes carried in any “Economic Area.” Quite baffling, and as far as I know, unprecedented.

The broad effect of these restrictions will be to reduce flexibility and growth in this fast-moving arena, to restrict much needed spectrum in key geographies from the companies that serve more than half of all Americans, and to place an unnecessary obstacle in the way of a wireless upstart seeking to bring more capacity and competition to the mobile world.

Many were already skeptical Harbinger could pull it off, the FCC order notwithstanding. Too expensive, too technically demanding, they say, too much competition, with the existing carriers and the likes of ClearWire. But instead of clearing the way for a small competitor to make a go of it, the FCC is adding burdens to Harbinger’s daunting task.

If you were starting a business, one with very large upfront capital costs, how would you like Washington telling you that your two largest potential customers are off limits? The FCC conditions make Harbinger’s proposed network neither “wholesale” nor “open access.” More like a boutique continental 4G wireless network. Sound good? Didn’t think so.

The FCC order could also effectively bar 176.3 million American mobile phone users (Verizon’s 91.2 million customers, AT&T’s 85.1 million) from taking advantage of this new spectrum. We are always looking for ways to expand robust coverage, whether in dense high-usage cities or in tough-to-serve rural, mountain, and coastal areas. Harbinger’s eclectic strategy is to combine both satellite resources and terrestrial repeaters both to add capacity to major markets and to serve out-of-the-way North America. But a large number of American mobile customers could now be blocked from this unique way to expand coverage.

What’s bizarre about this FCC order is that it so pointedly offends its own strategy, laid out just weeks ago in its major National Broadband Plan. The FCC dedicated lots of time and energy to wireless. “Goal No. 2” of the Plan is:

The United States should lead the world in mobile innovation, with the fastest and most extensive wireless networks of any nation.

Within the large section on Spectrum, the FCC highlighted its priorities under these major headings:

5.2 ENSURING GREATER TRANSPARENCY CONCERNING SPECTRUM ALLOCATION AND UTILIZATION

5.3 EXPAND INCENTIVES AND MECHANISMS TO REALLOCATE OR REPURPOSE SPECTRUM

5.6 EXPAND OPPORTUNITIES FOR INNOVATIVE SPECTRUM ACCESS MODELS

Transparency? Seriously, now. This order, issued by the bureau chiefs and not the Commissioners, gave no opportunity for input by the mobile carriers, who were not even party to the transaction. They were not consulted or even notified. Harbinger, meanwhile, was at the mercy of the FCC staff. You want your acquisition approved? Then these are the conditions you’ll have to swallow. This was a case study in opaque spectrum policy.

Expand incentives to repurpose spectrum and for innovative access models? Talk about contracting incentives to repurpose spectrum and encourage new innovations, such as Harbinger’s unique and speculative satellite-4G hybrid system.

I’m no lawyer, but the FCC conditions seem awfully arbitrary. Policy-making by mere whim. Unaccountable, off the cuff, and blatantly contrary to its own shiny new Broadband strategy.

I doubt these conditions on the Harbinger order can stand. Regardless, let’s hope this episode is not a portent of Broadband policy to come.