Hulu’s New Business Model is Bad Industry Juju

AT&T’s report on earnings reinforced some structural changes in the industry that Verizon’s report had already suggested.  One basic truth is that mobile services are more profitable and more fertile areas for growth than wireline.  Another is that mobile service gains and ARPU both depend substantially on broadband and smartphones rather than on voice services.  Finally, both carriers’ numbers show that you can’t even support a wireline business model on voice any more, and you can’t support it on broadband Internet either.  You either make money with TV or you don’t make money on wireline.

That’s an interesting counterpoint to the reports by the WSJ that Hulu is looking at becoming a kind of online cable operator, offering a premium service only and requiring payment for the service.  This has resulted in some suggesting that maybe it’s time for the whole cable TV industry to be subsumed into a broadband delivery/Internet model.  But if TV is the only profitable wireline service, where does that lead?  We all know the answer to that one, but that doesn’t address the question of whether an attempted shift to a pay-TV model for Hulu, coming after the significant growth Netflix has enjoyed, couldn’t create some serious stabilization issues for ISPs.

Democrats, you will recall, have proposed legislation that would not only codify the FCC’s framework for net neutrality but apply its terms to wireless and explicitly bar any paid prioritization of traffic or “fast lane” other than that paid by the customer.  As I noted earlier, this kind of bill stands no chance with the Republican House so strongly against even the current neutrality rules, but it does show that the political winds are at least blowing somewhat in the direction of accentuating a kind of “Internet-must-carry” principle that could have major impact on future services.

Buried in the details of the AT&T report is the fact that the company has fallen far short of its target for fiber feeds to its cell sites—less than half its goal for 2010 was met.  Now let’s be serious here, gang, nobody doubts that AT&T understands how to deploy fiber; the problem isn’t one of skill or technology.  It’s ROI.  The financial industry has noted that there’s a surprise boost to vendors who offer inexpensive digital-over-copper to buttress AT&T’s tower bandwidth; clearly the fiber shortfall is cost-driven.

The ROI shortfall shouldn’t come as a surprise because it’s caused by the same forces that have marginalized wireline—bit commoditization.  Customers want more applications online, but they don’t want to pay more for the capacity to deliver them.  High-end services at 50 Mbps or more undersell unless there’s virtually no price premium for them.  4G isn’t something people want to pay for; they just want to get it.  The public doesn’t understand how the business model of online services depends on the simple launch point of being online with capacity to access the service, and nobody in the media is interested in offending them with the truth.

I’ve been told that with the current trends in both wireline and wireless, and with no additional revenue streams, broadband Internet would be an unprofitable service for US operators by 2013 and that mobile broadband would be unprofitable by 2015.  Carriers like Verizon and AT&T who are gaining customers in the traditional postpay market can only gain so much market share because there’s only so many customers.  The “Hulu model” of broadband TV would exacerbate the problem by driving up traffic in both wireless and wireline networks, and worse it would compete with the traditional video services of operators—services that are making wireline at least somewhat profitable and that aren’t contributing to wireless traffic growth.

But it gets worse.  Online ad revenue per user from a Hulu model would be about 4% of what TV commercials now bring on a per-user basis.  If we saw migration to an online model, we’d either lose 96% of the money available to fund content development or we’d have to presume that somehow advertisers would agree to pay 20 times or more as much for each online eyeball, which sure seems unlikely to me.

What this adds up to is simple; we’re heading for a usage-priced model of broadband foreverything and if regulators try to stem the tide they’ll simply drive the operators out of investing in infrastructure.  One way or the other, the Internet isn’t going to be the “over the air” of the future, with no marginal cost to deter usage.

Cable’s business model works not because of voice or broadband but because of TV.  Fiddling with that golden goose could cook a lot of the players in the industry—and the vendors who support them, and the viewers who depend on them.  We’re facing a major disruption here, and the question now is whether we can, as an industry, come up with some logical way to save the health of the system that the whole of the Internet depends on.

Finding the Bucks, or Making Them

Earnings season is underway, and I think it’s clear that the results are generally positive and probably more so than expected.  That raises again the possibility that the recovery is proceeding more quickly than economists expected, and another sign that may be true is that the major parties in the US now seem to be vying to take credit for what will happen.  You can’t be responsible for good stuff by doing nothing, so you have to be cooperative to the extent needed to get at least something done.  Later then, you can argue over who gets the credit!

The State of the Union address was a typically political instrument, and so of course were the responses.  While I think it’s clear that the President is right in his assertion that America has to become more competitive in the core production of stuff instead of focusing on mowing each other’s lawns or earning money through financial frauds, that’s been clear all along.  What’s not clear is how to make it happen in a society that’s becoming more focused on entertaining itself than on getting anything done or learning anything.  The shift from search to social networking in terms of time spent online is a reflection of this; how much can you learn by Tweeting?  In a societal-good sense, not much.

In networking, Cisco has again indicated that what it calls “ambient video” (meaning user-generated content) is going to put enormous demands on the network of the future.  But like the political process, Cisco’s light on realistic solutions to the problem.  Sure you can argue that to fix traffic congestion you buy routers (a logical strategy for a router vendor to propose) but the real problem again isn’t what it appears to be on the surface.  We need to know how to pay for the routers, and ambient video has the smallest monetization potential of all types of video because nobody is prepared to spend much to advertise in that kind of material.  Our research says that only about 0.04% of all the video uploaded by consumers has any potential for ad monetization, and even with that there’s the question of how the ad money ever flows to the network operator to pay for those routers.  Absent a solution, the only near-term measure operators can adopt is to put price pressure on the gear to improve ROI even when the “R” part isn’t growing.

Up in the service layer, all’s not rosy.  Google is reportedly unhappy with the sales of Android apps even though developers are reportedly more favorable about the Android platform.  The problem Google has is that there are simply too many Android versions that are developing as the platform struggles to match features with Apple.  Since Apple can monetize its iOS better and faster, it’s able to put more back into development, and since it’s setting the feature standard for the space it can choose its fights.  I think that Android’s current problems are transitory; by the end of 2011 I believe that Version 3 will be out and widely accepted, and that will create a much more stable framework for development.  However, another important element in the picture is just what Google will do with its HTML5 “URL store” concept and Chrome OS.  A better way to create the platform APIs to allow features to be either device-resident or hosted might offer Android some real benefits.

Google has taken an important step in another area, allowing users to port mobile numbers to Google Voice.  This means that the features of Voice in call management could be available to mobile users more easily, and that in turn would accelerate the disintermediation of operator voice services from future feature opportunities.  The capability isn’t offered for wireline voice because of issues with E911, we’re told.  Operators will need to address this with their own set of richer voice features, but if they try to do that inside the traditional IMS envelope they may face price/cost problems that will work strongly in Google’s favor.  That means they’d have to block competing voice apps, and even the rumor that one operator plans to block Skype has been enough to create an FCC complaint under the new neutrality rules.

Earnings season will continue for a month or so now, and I expect we’ll have other comments and predictions based on the numbers that emerge.  I also think we’ll be seeing signs of how Apple and Google will operate in their new age of management, and that may be the most critical issue for the industry right now.

New Brooms?

The shape of the networking industry has long been determined by forces on the outside in what could be called the “on-net” space, and two powerful players there are undergoing management transitions.  Apple is losing (at least temporarily, though we hear management expects Jobs’ departure to be permanent) its charismatic CEO and Google is switching its politically connected “professional” CEO in favor of founder Page.  How much these changes will impact the companies involved, and the industry, will surely be the focus of much discussion but we’ve got to weigh in with our own views since both Apple and Google are truly seminal forces.

Apple has, more than any other company, transformed the relationship between users and networks—by transforming the instruments that connect the two.  Anyone who has worked with, or inside, Apple knows how much Jobs has shaped the company and how much his vision of the future has dominated Apple’s planning.  But his style has made it difficult for Apple to do any succession planning despite the state of Jobs’ health, and many inside Apple have suggested to me that charisma and determination have more often slipped into intransigence in recent years.  Apple’s vendetta against Adobe’s Flash, for example, have put the company into a position of supporting HTML5 when it’s clear that HTML5 is a benefit to the browser-based Google model of the future more than to the Apple app-based model.  In fact, the iPad/Phone incumbency is rendered meaningless if all portable apps are nothing more than URLs into an HTML5 world.

In the case of Google things are a lot more complicated.  Eric Schmidt isn’t a charismatic figure, and he’s generally seen by people in the Valley as a bit of a stuffed shirt, a businessman and not a real tech guy.  Brought in to add some “maturity” to a management team that investors tended not to trust, Schmidt championed a number of things outside the normal range of an online search giant—most conspicuously stuff like cloud computing and enterprise services.  He’s seen as having let social networking languish, losing the space to Facebook.  Some say he didn’t back Google Wave properly (others say he promoted it too much).  In any case, he’s now being replaced by one of the “infant” founders and there’s a lot of talk that this is going to prevent Google from “going Yahoo”.

It won’t, because Schmidt isn’t the problem.  Google is now a public company, a company that has to make money for its shareholders either through stock appreciation or through dividends.  I’ve said for years that there’s a fundamental problem with an ad-revenue model—the total value of all advertising can grow only at the pace of GDP, and gaining market share to show strong growth invites (as Google has already seen) regulatory scrutiny.   Google really needs to transform itself, and it’s not clear that Page is the guy to do that.

Enter Cisco Videoscape

Cisco took what could be a giant step for itself at CES with its new video ecosystem.  Called Videoscape, it combines in-home tools and software to centralize the mediation and management of video relationships, creating what’s probably the most architected video service layer available to network operators today.  Since Cisco was already doing well in the early content monetization project trials, Videoscape could be a real winner for the company.

But despite the positives, Videoscape still has some issues in my view.  Paramount is that Cisco is developing a content strategy in the absence of an overall service-layer strategy, or at least is creating the latter by simply assembling pieces instead of creating an architecture.  Most of the stuff in the Videoscape Conductor (the back-end) could easily be helpful in other missions, but it’s not clear how they’d be applied outside the video context.  There’s also a very strong push for video sharing and uploading, which generates traffic for operators and has essentially no potential for monetization.  That makes the product a bit of a risk in itself, but it also shows that Cisco may pursue its own aspirations (which are to generate so much consumer video traffic that operators are essentially forced to buy tons of Big Iron to carry it) more than support the operators’ business cases.

In the net, though, Videoscape is a strong achievement for Cisco because it plays to their strength—breadth in the video market.  The net effect of deployment could be a kind of “TV Everywhere”, and with Comcast pushing that very thing already, the timing couldn’t be better.

Economics and Networks

There’s more good economic news this morning; ADP’s private payrolls report gained the largest number of jobs in its history, which strongly suggests that hiring may be coming back.  You may recall that our forecast for unemployment for 2011 was considerably more optimistic than the official one, and I’m hopeful that the ADP data is validating that optimism.  Employment is the biggest barrier to a resumption of normal economic growth.

Qualcomm is buying Atheros, a chipmaker whose product line is more directed at smart appliances, including smartphones and tablets, in yet another validation of the consumer electronics craze.  The move comes as both AMD and Intel announce their own successor chip families, and the former seems directly aimed at the low-end market, including tablets.  Intel clearly has aspirations in smart devices too, and has been promoting its own Linux-based OS to gain some developer credibility.  With CES launching today we’ll certainly be hearing more about tablets, and while it’s obvious that not all of those announced will be market leaders, recall that the laptop market has plenty of active players.

Speaking of M&A, Dell has purchased a security company (SecureWorks) to buttress its enterprise services position.  What’s not clear yet is whether Dell will be applying the technology to the standard data center framework or focusing it more on private clouds.  My research says that enterprises are very concerned about the way that private cloud computing and hybrid clouds would impact security, and while this isn’t as large a market at this point as the managed security services market, MSSP is a security outsource strategy that might in the long run reduce the revenue Dell could hope to obtain from the acquisition.

Some financial analysts are posting positive comments about both the LightSquared “wholesale LTE” model and the vendors who are involved in it.  The basic idea of LightSquared is to provide a wholesale wireless network with national coverage, a host to MVNO relationships with players who want a wireless presence but don’t want to run a network themselves.  The idea has some appeal in that there are certainly companies (cable companies come to mind) who are likely to fit the customer model, but there are also challenges.  In fact, there are three.  First, wholesale profits are lower than retail, and the industry is already squeezed.  Second, the MVNO model has been tried by operators, including for cable MSOs, and hasn’t exactly sung.  Third, it’s far from clear that a satellite network hybrid will be technically successful and that terrestrial coverage will be ample where it’s needed most.

So here’s how I see it.  LightSquared has marginal financial options at best, and there are a lot of factors that say “best” won’t happen.  Thus, I’m not inclined to give the deal much credibility, or to assume that it will drive any benefit to vendors.

Reading the CES Tea-Leaves

The kick-off of the Consumer Electronics Show this year may be more meaningful for tech than usual because it’s a barometer of some critical market dynamics.  Tablets are set to take the hot seat at the show, even though (as usual) Apple isn’t attending.

The big question in my view is less whether we’ll see a zillion tablets than whether we’ll see tablets focusing on both a smaller (7 or 8-inch) form factor and WiFi-only connectivity.  The tablet as a satellite of a 3G/4G mobile service plan isn’t going to transform the market because the cost will be too high for most users.  Sure they might end up with value, but why take a risk?  On the other hand, an “uncoupled” WiFi tablet that’s affordable becomes the instant device of choice in hotspots, particularly hospitality sites.

Most users (83% according to my model) plan to use tablets primarily at home, at work, or in a setting that’s likely to have WiFi.  An even larger percentage would prefer WiFi access to a wireless subscription tie-in.  Tablets and WiFi would have a major impact on the ebook space, creating a device that could become a universal reader, devaluing the incumbency of both Amazon and Barnes & Noble, and making Google and even Apple happy by validating a more general model of device.  Google, who’s trying to get its own book program going, might be particularly gleeful, and of course as the Android backer they have some influence on market direction.

At least a couple of the tablets at CES will surely be WiFi; Vizio already says it will launch an 8-inch Android tablet with WiFi only.  If we see a lot of this sort of thing, it means that the appliance vendors are looking to drive the market.  If not, then it means that they’re not prepared to step on the older partnership with the wireless carriers, which in turn means they’re not fully confident about the tablet future.

CES this week will start the drive toward the next stage of the media/network relationship.  The more pressure created by new tablets and new integrated TV delivery systems, the greater the pressure on ecosystemic tuning and market consolidation.  It won’t revolutionize viewing, but it could revolutionize the industry that delivers it.

The New Year, the New Ad?

The new year is always a time of perceived change, though of course the simple transition between two calendar dates doesn’t drive change itself.  Rather than talk about the coming year in general (which I’ve done in our Annual Technology Forecast issue for Netwatcher in any event), I’ll focus here on the immediate “changes” the industry is dealing with.

The comment over the holidays that Facebook has overtaken Google in popularity is a potentially seismic shift, but not for the reasons that have been suggested.  Yes, this is “bad” for Google, and yes, it shows the “power” of social networking.  But the real problem is that it may show that our use of the Internet is getting harder to monetize.  Somebody searching for “HDTV” is very likely to be thinking of buying one, and thus there’s value in selling ads to them.  Somebody chatting on Facebook is another matter altogether.

First, there is no easy way to establish the commercial goals of a Facebook comment.  Not only is it hard to interpret whether a reference to “HDTV” is soliciting buying advice versus talking about moving furniture around, it’s certainly an intrusion if Facebook started scanning our text for ad opportunities.  Thus, it’s very likely that social-network advertising will be more like banner ads, which are less visible, less clicked, and less valuable.  We’re shifting users to a place where fewer ad dollars are likely to follow.

Second, social networking is the framework for viral campaigns, not for direct ad sales.  If you want to leverage Facebook or Twitter or whatever, you have to start buzz and then let social networks propagate it.  That could generate more clever YouTube commercials but it’s not likely to generate direct ad sales.

Third, it’s an indication that in an effort to find the Next Great Thing, we’ve left the “great” category completely, at least insofar as creating and sustaining the Internet ecosystem is concerned.  You can argue that search provides a value to the Internet overall, a value of organizing and finding stuff in the vast repository of Internet data.  You can argue it promotes education.  It’s hard to make either argument about social networking.  I’m not saying people don’t like it, or that it is culturally revolutionary, only that it’s not moving the Internet to a better place in terms of sustainability.

For Google, you can argue that social networking is something that you can lose in by missing out on it, or lose by capitalizing on it.  If Google contributes to a social-network war that adds further to the time spent on social networks instead of on searches, then Google is contributing to a shift of focus away from profitable search ads toward less profitable display ads, and moving away from its own strength.  Would it be better to sit this out and let nature take its course?  Remember that Second Life was a craze a while ago, and most have forgotten it completely.  Not to mention MySpace.  Twitter is used by less than 10% of the online population, according to a recent study.

But if you sit out social networking as a Google, you ignore the insidious truth here, which is that the “growth of the Internet” is growth in increasingly non-commercializable areas.  We are likely seeing the inevitable plateau in online ad revenue approaching.  It’s not that ad revenues won’t grow, but that they’ll not explode in new areas where people can make a ton of money, and that means VCs and growth companies like Google will have to look elsewhere to make a killing.

Neutrality Order Text Released

I had a chance to review the full text of the FCC’s Net Neutrality Order (10-201 if you’re into the FCC’s numbering system) and there were no real surprises in the material versus the commentary that was provided in the public meeting.  I’m still concerned that the FCC hasn’t created a solid legal foundation for the order, which means that it would be at risk in an appeal.  There are plenty on both sides who say they might appeal the matter, but in truth it does take some financial resources to fund an appeal process if you’re earnest about getting results.  The FCC, as I’ve noted in the past, is holding open the docket on reclassifying broadband under Title II, perhaps to threaten the ISPs (who have the deep pockets to appeal).

Another tactic that the text might reveal is the Commission’s declaring that a lot of the key issues like what constitutes traffic management are to be addressed on a case-by-case basis rather than through meticulous details in the order.  That means that anyone who wants to dispute something will either have to file for a declaratory ruling or wait to get zapped by the FCC and then make their case—to the FCC or on appeal.

One thing that does seem clear from the text of the order is the policy of the FCC on pay-for-priority systems.  What I gather is that such systems would be fine with the FCC if they were initiated by the consumer, but not if they were sold to content providers like Google.   What seems to be shaping up here is that if the consumer has a choice to pay for priority handling and that choice is explicit, then it’s probably OK for the content provider to collect the money and pay on the user’s behalf.

The issue of content-provider-pays is a bit murkier.  As I noted above, the provider could probably act as a payment agent or intermediary.  The FCC also stopped short of saying that there were no conditions under which a provider could pay.  That suggests to me that they might allow the content provider to “pay” for premium handling in a bundled content service.  The key point here seems to be that if the consumer isn’t paying anything for content (free Hulu versus paid Hulu or Netflix) then the prioritization would clearly be paid by the content provider and would clearly be linked with “Internet content” as opposed to being a “specialized service”.

This is the area where appeals to the order seem the most likely.  An ISP that has no specific content strategy could well offer streaming video players an opportunity to obtain special handling for premium service, as well as offering the consumer subscription premium options.  If competitors with their own channelized TV offerings didn’t like this (which they likely would not) then they might file an appeal to the FCC.  Or the ISP who wanted to do the prioritizing might apply for a declaratory ruling.  In either case, if the FCC doesn’t go along with the operator on the issue, there’s always the Court of Appeals–and there the uncertainties begin.

Week in Review: December 23rd

At CES, Microsoft will confront a demon that’s been haunting it from the early ‘90s, and how it does that will likely have a major impact on the future of the company and of Windows and its ecosystem.  The demon is the GUI.

Most OSs can be visualized as a kernel and a shell, with the latter providing the human interface to the OS service set.  There are APIs in both the kernel and shell, and developers write software to these APIs.  Thus, the software is dependent on the features exposed by those APIs.  Since the shell/GUI APIs are specific to the GUI model the OS uses, the APIs depend on how the user-to-system interaction looks and works.  It’s all an ecosystem.

The challenge this poses is that Windows has always had a GUI designed for keyboard/mouse use.  Touch-screen versions of Windows offer some relief from this link, but everyone realizes that the Windows GUI doesn’t scale down well to smartphones or even tablets because the navigation is too display-intensive to work when the display is very limited in real estate.  The GUI also doesn’t include handy finger-features for navigation that tablet or phone users would demand.

Tablets are the biggest thing in computing, and as I noted in our Annual Technology Forecast this month, they’re the focus of the most significant technology issues and product sectors for the coming year.  But Windows 7 is Microsoft’s success story, the thing that pulled it back from a cliff that the earlier Vista release hung Microsoft on the edge of.  But Windows 7 isn’t compatible at the GUI level with tablets; the navigation doesn’t port.  That means the APIs don’t port, which means the programs don’t port.  So Microsoft has to either create a new OS for tablets with a tablet-specific GUI and let tablets then step on Windows 7 success, or they have to try to make a Windows 7 GUI compatible with tablets and risk losing the critical tablet market completely.

If they do the former, they’ll be following Apple’s lead with iOS versus OS/X but they’ll have no real software base to work with.  If they do the latter, they’ll be risking the future of Microsoft.  Clearly they have to do something closer to the first choice, but how?  The obvious approach would be to create a Win 7 kernel and a new GUI shell, and then come up with some new APIs that could map to either the older Windows GUI or to the newer tablet GUI.  I’ve heard some rumors that this might be the track they take, but Redmond is a pretty close-mouthed shop so we’ll probably not know for sure until CES.

Economic news remains largely on track.  The Eurozone debt crisis isn’t getting any worse; Greece passed austerity measures and Irish courts approved a bank bailout.  In the US, economic data has been pretty much in line with expectations; a slight upward revision in the last quarter’s GDP, a dip in durable goods orders, and a small dip in unemployment claims.  Consumer spending and income levels were up in November, and October’s number for spending growth was revised upward.

In the carrier world, we had an interesting counterpoint to the net neutrality flap in a major Skype outage this morning.  The reason this is interesting is that it reflects the truth that network infrastructure investment at all levels has to be economically justified.  Could Skype have created a more bulletproof server hierarchy?  Sure, but it’s hard to justify a lot of spending to make a free service bulletproof.  The telephone network has never had an outage of that scale in its history.  I’m not criticizing Skype here; I’m just pointing out that investment in infrastructure depends on some mechanism to generate a return, and where that mechanism is limited so is the investment.  That’s the issue the FCC has to balance in net neutrality.

The sad thing about the whole debate over net neutrality is that virtually none of the debaters have any notion of how the Internet works, how regulatory processes work, or how business works, nor do they want to.  This is all about publicity and rhetoric, which means that there’s no contribution to be expected from these discussions in advancing the real needs of the market.

Internet and broadband policies are complicated for sure, but that’s no excuse for having useless debates based on extreme-at-best and wrong-at-worst positions.  We can’t expect good public policy from bad public participation, and the latter is inevitable without some understanding of the issues.

In the technology space, our deep analysis of our fall survey results seems to indicate that enterprises find vendors broadly at fault with respect to providing strategic guidance on either technology or its application to specific productivity problems.  A comprehensive look at the collaboration space—one of the “hot buttons” for a lot of vendors—shows that enterprises are having problems getting solutions to fit their requirements even as they’re getting those requirements stated more clearly, though they think Cisco with Quad might be approaching it.  The challenge, enterprises say, is that Cisco doesn’t focus its Quad story on general collaboration and then fit telepresence in but tends instead to focus on the telepresence.

I think this complain should be the tagline for the last decade, an indication that vendors have let the NASDAQ crash and the bubble-related legislation induce them to pull in their activities and focus only on tactical sales issues.  If a strong strategic portfolio can’t be valued by investors because it might be a bubble, then why have one?  Companies are responsible to boost their stock prices.  But this year we’re entering a critical phase for tech, one that demands looking ahead in a rational way and not just looking as far as your wallet.

I’ll be in a period of reduced coverage during the holiday period for reason of the fact that there’s likely to be less news.  From CIMI Corporation, Happy Holidays!

Well, Neutrality is (sort of) Here!

The FCC’s neutrality vote went as expected, with commentary by various people involved in the process, including the Commissioners.  I found a lot that I agreed with, but I disagreed with at least some of what virtually everyone said.  It’s not a disappointing order, though I’m sure that most will characterize it that way.  The only thing that’s disappointing is that it doesn’t in my view address the issue of the FCC’s authority to act.  The loss of the previous neutrality doctrine was a result of the Court of Appeals having overturned that doctrine for lack of authority to act.  I don’t think the current order establishes a strong position, and certainly there will be no lack of players to appeal the order.

The FCC’s position is pretty much as expected based on prior comments by the Commissioners.  The FCC will require that wireline broadband services be subject to handling rules that are transparent, non-discriminatory in terms of sites, devices, and traffic types.  For mobile services, the transparency rules are in force but non-discrimination is weakened a bit to reflect the special nature of wireless.  For mobile, blocking of traffic that’s competitive with the ISP’s own service is prohibited, but other blocking for traffic management may be allowed if the need can be proved.  The “specialized services” that flow in parallel with the Internet will be reviewed, but nothing will bar either payment for priority or tiered pricing per se.

The jurisdiction issue here is going to seem trivial, but it’s really central.  The current move is based on Section 706 of the Telecom Act, which the FCC itself has never before said offered it any independent authority to make new broadband rules (the Court of Appeals pointed this out in the Comcast ruling).  Further, Section 706 applies explicitly to telecommunications services, and in 2005 the FCC said that Internet broadband was not such a service.  Commissioner Copps took the strong stance that a return to Title II regulation was the right approach.  I agree.  The FCC’s “third way” would have given the order absolute legal foundation and would not have subjected the Internet to being regulated like a telephone network.

But Copps also said that we needed wholesaling for competition, which I’m not sure is true, and that we needed equal regulation in mobile services, which I’m pretty well convinced is not true. The Republican Commissioners laid out objections that boil down to “no neutrality” or “let the kids play”.  “Nothing is broken in the Internet access market that needs fixing” is one of the comments.  I don’t agree with that either.  So what we had was a bunch of political comments about a decision that was likely about as strong as the realities of politics could have allowed it to be.  If we saw the rules enforced, they’d likely not hurt anything, would almost certainly prevent egregious behavior, and might even help.  I’m not sure they can be enforced, and that’s my problem.

It’s not clear they even need to be enforced.  One valid point raised by the opponents of the order was the fact that the FTC and DoJ anti-trust regulations would cover consumers against anti-competitive behavior by ISPs.  That’s likely true, and thus you could reasonably say that the FCC’s order could simply be another round in a long-standing battle between the FCC and FTC for control over the telco markets.

So the Democrats, with Copps speaking to the impassioned Internet supporters, say that much more regulation is needed to keep the evil ISPs from our door.  Baloney.  Two of the three Democratic Commissioners said they wanted even more neutrality control than the order provides, but went along with the deal because it was the best available.  The Republicans say that these rules will kill the Internet, kill investment, kill society (online at least) as we know it.  Baloney.  The FCC that gave us the four principles was led by Republican-appointed Commissioners.  Were they in favor of industry-killing then, and have now changed their minds?  A pox on all politicians, and sadly the FCC Commissioners are politicians despite the fact that they’re appointed and not elected.

Might the politicians in Congress now jump in?  Sure, and they might pass other legislation despite their record of not getting much done.  Both parties can block action of the other here, and the division of the Commissioners by party makes it pretty clear that both parties would block Congressional action they didn’t favor.  There are some who believe that the Congress will move to give the FCC specific authority to cover the order, mooting any appeals, but I don’t think that’s likely.  We’ll have to wait until a Court of Appeals rules here, if not the Supreme Court, before we’ll see any differences in broadband as a result of the order.

How different is the new broadband under the order, anyway?  Despite all the hype on both sides, it’s not very different at all.  Likely the biggest changes will be the drive toward more settlement and payment options, moving away both from the unlimited-usage pricing and the bill-and-keep models of the past.  But even these changes may be modest until some legal validation of the order is available.  Thus, don’t expect to see very much from this in the near term.