Category: Uncategorized

There were a lot of happy smiles on the Street yesterday as stocks skyrocketed, and things aren’t looking too shabby today either.  Apple and GE posted better-than-expected numbers and at least for the moment the hope of an earnings-season blowout is overcoming concerns about Eurozone debt, US deficits, and even some uneasy unemployment numbers.

Apple had another great quarter, and with their arresting success comes a possible new threat from a possibly-new business direction.  No, I’m not talking about Apple dominating the smartphone or tablet space—they will almost surely suffer the same longer-term fate in these spaces that they suffered in the PC space.  Apple is a trend-setter, a cream-skimmer in the device market.  As it commoditizes (as all valuable spaces do), Apple loses share to price leaders.  No, the problem isn’t in the appliances, it’s in services.

Apple has been looking at a revamp of its “cloud” or service position.  The basic model that Apple has long applied has been to sell Apple users device-related services (MobileMe, iWork, iTunes, etc)  and to use this add-on model to further raise revenue and (especially) profit.  It’s not at all distant from the old call-forwarding feature model of the RBOCs; you make your money on the add-ons.  To protect this space, Apple recently changed its policy to ban applications that accepted recurring subscription payments; they have to go through Apple’s store.

Apple is also raising a related and possibly even more difficult question, which is whether consumerism is now so dominating technology development and deployment that the business IT processes are also-rans in terms of focus, revenue, and planning.  If most of IT is the consumer, then IT is a series of classical boom-bust cycles.  For any Big Idea there’s a quick surge of revenue and profit followed immediately by a combination of commoditization and competition that kills the opportunity in a short period (about 20% of the total period of a market of this sort presents “opportunity”).

Alcatel-Lucent is, I think, trying to leverage its unequaled asset base to offer operators a way to counter this and other disintermediation threats.  They announced a project with China Mobile to cooperate on a lightRadio-centric mobile ecosystem.  The only concern I have about the deal is that it’s not highlighting any service-layer cooperation, but rather more stuff down in the network itself.  It’s not that I think the network isn’t valuable, but that the real differentiation has to come in features that are hosted in a higher layer and that exploit value uncovered below.  Until we have the hosting and exploiting part under control, developing other stuff isn’t going to pay the bills.

Tech earnings are demonstrating again that the global economy is recovering, and also demonstrating some of the dynamics within the tech market.  Yesterday, IBM, Intel, and Juniper reported, and there’s something to learn from them all.

IBM revenues overall were up 8% and earnings up 10%, and the IT giant raised its forecast for the year.  What was strongest were the platforms (mainframe revenues were up 41%!) and middleware (up 16%).  Services were up only 6%, which was also the software segment’s gain rate.  What’s interesting about this is that it shows a shift of spending away from projects and back to basic budgets.  Project spending periods typically show stronger gains in services and in software, because services are key to sustaining projects and software is typically what makes project business cases.  In short, IBM is showing us a consolidating IT picture.  EMC’s numbers were also up, and in the past stronger storage sales combined with stronger server sales tended to indicate a budget-driven or consolidative environment.  Part of the picture was a banner period for VMware, which beat estimates.  An uptick in virtualization would also suggest a cost-driven IT sector.

Intel’s numbers were truly impressive; revenues up 12% and net income up 3% sequentially.  Intel attributed the gains to a server buildout for “the cloud” but it’s pretty obvious that “online” would be a better characterization, or even “server” by itself.  The point is that Intel is showing that the upspin in server sales is still carrying forward into the supply chain, suggesting that the change has some legs.  That would be good news in the short term; even if we’re seeing a longer-term consolidation it might not impact IT hardware in 2011.

Juniper reported roughly inline numbers, but a weakness in the enterprise side.  Here again we see the handwriting of budget-versus-project on the financial wall, so to speak.  Data center modernization is a project class that has historically straddled that boundary; in some cases the funding for this sort of change is allocated to the network or IT budget and at other times it’s managed as an off-budget project.  I think there’s an indication that the project side of this is what’s weaker.  Networks are also lagging indicators of data center modernization, so this segment might pick up in the second half.

Economically, the news remains positive but the risk factors (North Africa, the EU sovereign debt issues, and US deficit uncertainties and politics) remain.  There seems a new pessimism among some in the US about the future jobs market even though the numbers continue to improve, and this translates into more pressure on the President’s approval rating.  That, of course, means Republicans are in no hurry to make things look better before 2012.  However, there are signs that the Republican balance-the-budget thrust (which they proposed to do with steep social program cuts) has kicked off a tax-the-rich-instead backlash.  The number who favor taxing the rich is double that who favor cutting social spending, according to recent polls.  Tax increases are always problematic, but the foes of the increases may have sanitized the whole notion by offering an even-more-problematic alternative.  We’ll probably not have a resolution to this one any time soon, though.

I’m still cautiously optimistic about the economy, here and globally.  I’m slightly pessimistic about tech spending overall; I think we’re losing touch with the essential truth that enterprise spending depends on projects that enhance productivity in the long run, and that network operator spending depends on profits and not traffic.  AT&T and IBM are signaling us that we need to pay attention to these two dynamics, and right away.

 

Yesterday wasn’t pretty in the stock markets of the world, though many exchanges did manage to close off their lows.  Here in the US the problem was that S&P issued an opinion on US debt that threatened to cut its triple-A rating if something weren’t done by 2013 to rein in deficits.  How much of this is political or posturing is hard to say (these same bond rating agencies were asleep before the 2008 crisis), but the move sent stocks down.  We’ll likely see today how much of the dive was simply short selling.

The challenge of the S&P comments is that they tend to create pressure on Washington to do something difficult, and in politics hard things involve so many dodges, lobbying cave-ins, and scams that almost anything could happen.  Logically you need to raise taxes in the higher brackets; the US has arguably the lowest marginal rates of the industrial nations.  It’s defensible to have that situation if it’s creating broad-based prosperity, but no possible interpretation of the last 15 years of economic numbers would support that claim at this point.  Anyway, those who make a lot can contribute a lot to politicians.  Logically you also need to cut costs, but everyone in Congress wants their own power bases well padded with cash.

In tech, Microsoft made its Office 365 available as a public beta.  The “cloud-based” version of Office is targeted at reducing Microsoft’s risks in its critical Office franchise by limiting the damage that things like Google Docs could cause.  What they seem to be circling around is a plan that would offer SMBs a license for the “collective” parts of Office that are normally hosted on a server, and enterprises a per-seat license for the full Office suite.  That’s likely a smart move because SMBs can probably spend the dough for per-worker versions of Office but can’t sustain central server tools.  Enterprises are looking at moving some of their less tech-literate workers to cloud packages, and this could stem the tide.

Microsoft’s big problem isn’t Google and the cloud, though, it’s Apple.  We’re living in a world where wireless and appliances are redefining how people do just about everything, and Microsoft has let itself get trapped outside the candy store window.  Phone 7 just isn’t going to catch up in the mobile handset space, Nokia deals notwithstanding.  Microsoft has no effective tablet strategy because they’re afraid of undermining their Windows 7 space.  The more iPads Apple sells, the more they turn the consumer away from Microsoft; away, in fact, from anywhere that Microsoft appears even able to move.  Yes, Microsoft has to protect its current incumbencies, but without creating new ones that matter that’s only delaying the inevitable.  Microsoft won in PC operating systems over Digital Research because DRI missed the IBM PC opportunity.  One slip and you’re done.  Microsoft has missed MP3 players, smartphones, and now tablets.  They need to get their act together–and fast.

 

 

Nobody doubts that we’re seeing a revolution in video, but there are revolutions and revolutions, and it’s not yet clear just how sweeping the video change will be.  Some recent data from Nielson seems to show that while online video viewing is increasing, it’s increasing primarily within a largely static group.  Not only that, the four-hours-plus of online viewing per month is insignificant compared to the average of over 150 hours for TV.

Google is one of many who aren’t happy to see that outcome, and in Google’s case they’re trying to recast YouTube to become more of an attractant for the online video fan.  Professional or at least semi-professional production is being encouraged, and there are some signs that Google may be close to addressing one of the biggest problems with YouTube, which is less the “production quality” issue than the “needle-in-a-haystack” issue.  There are thousands of interesting and valuable YouTube videos, but it’s not likely that most will be viewed widely simply because they can’t be found.  Google seems to be working to offer the semi-pro regular producer better visibility, which would then insure more viewing.  In turn, it would mean that viewers were likely offered stuff that at least included a strong dose of content that could credibly carry ads.  Will this work?  We’ll have to wait and see.

Cisco continues to suffer on Wall Street; UBS added the company to its “Tech 10 Least Preferred” list, which is a long way for Cisco to fall.  Cisco has all of the technology assets it would need to create a killer positioning for both enterprise and service provider.  What they also apparently have is a set of blinders that’s preventing them from seeing the need, or the solution.  Is that an easy or hard problem to fix?  In an execution-mechanics sense, it’s easy because you have nothing creating a real barrier.  You can turn a positioning on a dime.  In a historical-precedent sense it’s hard, though.  Cisco has had what they needed for that whole five years, enough to put its competitors away definitively.  They’ve not done it, and that speaks volumes in an empirical sense for the difficulty that management blinders pose.

New studies are showing that mobile devices and ubiquitous broadband impact shopping behavior very significantly, and that doesn’t surprise me.  If you track the “trajectory” between “suspect” and “customer” you see that in the later stages, when the buyer is truly in “buy” mode, online ads and tools are far more valuable than traditional media.  However, online trails significantly in its ability to build brand or need.  Mobile is an even-more-tactical picture; people typically use mobile search or other product-finding tools when they are actually shopping, not just considering it.

In economic news, we’re seeing more problems in the Eurozone.  Greece is looking twitchy again, the Finns may be moving to reject the Euro, and of course there’s still Portugal, Spain, and Ireland.  The big problem with an economic union of equals is that the parties aren’t really equal, and under any conditions that exacerbate the inequality the union comes under stress.  China’s inflation worries and fiscal tightening are also a worry, as is Japan’s perceived dip in economic power.  In all, only stellar earnings are likely to counter the fundamentals trends this week, so we may see a listless-at-best market.

 

Google reported after the bell yesterday, and while the company reported a quarterly profit gain of 17% the numbers were below estimates because of higher costs.  The Google results point out two issues that will not only haunt Google but also haunt the whole OTT or “Internet” sector; the  limitations of advertising as a revenue stream and the sensitivity of the business model to cost increases.

Early OTT business models were compelling because they were essentially a license to print money.  You created a portal, you made it attractive in some way, you placed ads on it for a fee, and you raked in the bucks.  “The Internet” was your conduit to the consumer and it was “free”.  The problem of course is that any easy model will have a zillion imitators, and you quickly have to differentiate yourself.  You also have to address the fact that the potential ad spending you’re competing for isn’t an enormous number.  In 2011, for example, online advertising is expected to generate about $30 billion, with search taking about $20 billion.  Verizon alone takes in over $100 billion in revenue.

Google under Schmidt was pushing itself to be what the Street wanted, which is the mission of any public company.  Google under Page may be trying to be what the Valley wants, the dynamic and exciting company that led the Internet revolution.  It’s too late for that, unless you accept that a “Second Revolution” in the Internet has to be one that adapts the players to a more realistic business model, one that allows a better balance of ROI and excitement.

The growing regulatory concern over online privacy is creating yet another threat for the OTT guys.  The US and EU have similar regulatory goals but the EU is typically more consumer-protective, and is more likely to do something quickly and advertisers there are pushing ahead with a US-like plan.  Anything that limits online tracking limits the relative value of online advertising, and that means that players like Google have less cash to throw at infrastructure of any sort and a greater need for return on what they do spend.  Thus, regulatory trends are working against the online giants’ top-line opportunity and also threatening to push their tolerance for incremental spending to open new markets to even lower levels than now.  Since “now” sent Google down nearly 6%, that’s bad.

Google’s worries and other near-term earnings stuff aren’t spooking the Street much; while futures are down this morning they’re not collapsing.  That’s a good indicator that nobody really wants to bet strongly against the recovery, and also proof that the Street probably doesn’t grasp the details of what the Google trends mean.

 

Economic news is largely lacking today but the markets appear to be headed for another downturn, driven perhaps again by speculative short selling ahead of earnings season.  Monetary and economic data worldwide isn’t suggesting any problem at this point, but it does seem to me that the stock market is trending a bit ahead of the baseline economic story.  Our model, which is still dabbling with stock pricing, suggests that markets are overpriced about 2% at the moment.

In tech, tablets are again in the news as RIM prepares their launch of the Playbook, a tablet that diverges from the iPad mold in that it’s based on 7-inch form factor, and from the Android craze because it’s based on RIM’s QNX operating system.  I’m not really too hopeful about Playbook, frankly.  It’s not form factor or OS that’s the problem as much as the need for RIM to straddle a very high fence with its tablet.  You can’t win in the tablet space, or even play well, without a strong consumer value proposition.  RIM can’t hope to get any near-term traction with Playbook without tapping the Blackberry base.  How do you do both, particularly at a relatively late date at the dance?  Seven-inchers would be cheaper by nature (they’ve generally proven to be) but RIM has waited until the pricing on 10-inch tablets seems to be coming down.  Given that the iPad has set the 7-inch form factor as the consumer standard, that means an uphill sell.

To add to the problems, Playbook is getting almost universally bad reviews, with the problems attributed to haste and hurry.  Well, gosh, RIM, what were you thinking here?  The instant the iPhone hit the market, every handset player had to realize that the whole wireless device market was a new game defined by a new player.  Even before the iPad hit, RIM should have realized that Apple was going to continue to be a game-changer, and the instant it first appeared RIM knew it had to respond.  So hurrying to get something out?  Not unless they waited a year before starting.  The simple truth is that you can’t launch something whose sole goal is to compete with something else.  You have to have an affirmative goal to support a doctrine of affirmative buyer choice or you get fuzzy on both your value proposition and your differentiators, which is what RIM has done.

While we don’t typically cover management changes and executive hires, I do think it’s significant that Juniper has announced a new VP (from Cisco) in a new position. Nawaf Bitar has been brought in as SVP and GM of Emerging Technologies, which Juniper describes as focusing on the intersection of software and systems.  The reason this is interesting to me is that Juniper has demonstrated excellent engineering and, in Junos Space and Junos overall, insight in the creation of a software layer in networking.  They’ve under-exploited their assets, though, and thus risked being preempted by a player with less reality but more sex appeal.  With the service provider market finally demonstrating some service-layer deployments (Verizon’s DMS most recently) it’s clear that Juniper’s rivals won’t be quiet for long.

Juniper’s number one rival isn’t Cisco, it’s Alcatel-Lucent, and that company is now said to be exploring the sell-off of its enterprise communications business.  But Cisco’s not out of the story; they might well be essentially doing the same thing in a different way.  There are strong signs that Cisco wants to push its own unified communications and collaboration stuff through service provider channels rather than directly to the enterprise.  The UC space has been troubled essentially from its moment of birth, one of those “it-will-be-next-year” kind of markets.  The problem is that what’s driving UC is the commoditization of voice by IP, and you don’t get very far asking enterprises to capitalize a declining space.  UC-as-a-service has been the inevitable winner, but of course PBX incumbents never wanted to hear that.  They hear it now.

 

The cloud is in the news, in no small part because it’s earnings season and companies need to balance the need for publicity and the need to comply with SEC rules on “quiet periods”.  Cloudiness is always a good way to get some positive ink.  At any rate, we’re seeing three specific trends embodied in three announcements, by Red Hat, Lenovo, and Nimbula.

Red Hat, leveraging its acquisition of cloudbuilding-tool provider Makara, is looking to jump on what’s always been a critical truth about cloud computing; PaaS is the most logical offering.  A middleware vision (built around JBoss) supported by good cloud tools would empower developers to migrate applications to a form where they’d be cloud-optimized.  This reflects a second critical (and largely ignored) truth; applications that aren’t developed at least with the cloud in mind may not be optimal in cloud environments.

The Lenovo announcement of support for a cloud-ready client on its laptop systems is reflective of two other trends.  First, tablets and smartphones threaten to eclipse laptops as client devices for reason of simplified application management—thin clients are easier.  By sticking a thin-client capability with full security onto a laptop, Lenovo hopes to exploit the fact that while access to enterprise apps through thin clients is a priority for many enterprises, road warriors still need to have productivity apps running locally.  Laptops with the right tools can offer both capabilities.  Second, Lenovo is envisioning all of this within a mediating platform it calls Secure Cloud Access, which allows users to be linked to cloud or local resources based on profile information.  I think this is an important trend because “cloud computing” to be effective has to recognize the special value of local resources.  Whether users abandon local processing and storage for hosted resources is a choice the market still hasn’t made definitively, and may never make in a uniform way.  Every resource is part of the cloud, or the cloud isn’t a true resource pool.

The third announcement, from software player Nimbula, is their Director offering.  Cloud computing requires a “director” function to create the abstract virtual resource pool and to assign work (applications or components) to resources and then insure they are connect-mapped to the user.  The company characterizes this as a cloud OS but that misses the mark; it’s a cloud management or abstraction element.  The reason we think the announcement is important is first that it marks a breaking out of specific cloud components, and thus will likely help people understand what’s really involved in cloud computing and second that it probably represents the starting point in what will surely prove a long series of cloud-specific announcements that target hybrid and private clouds as much as (or more than) public ones.

In economics today, we’re seeing the usual stock rebound after short-selling; some tech companies including HP have made positive pre-announcements and the notion that every player would, like Alcoa, miss on their numbers may be fading.  The market is jittery, there are still plenty who want to capitalize on that by pushing on prices at any hint of bad news.  Whether there is really any long-term reason to worry likely won’t be known for a couple weeks at least, when we’ll have a cross-section of industries reporting and a broader notion of economic movement.

 

Cisco announced today that it would be “restructuring” its consumer business, dropping the Flip video line and focusing its home networking activities to gain better profits.  The steps neither fix Cisco’s problems nor demonstrate with certainty that Cisco doesn’t know how to fix them, but they do seem to show that (dropping Flip notwithstanding) Cisco can’t quite let go of the “bits suck” mindset.

Over the years, we’ve seen many vendors who seem to believe that demand for something necessarily forces someone to meet the demand, regardless of profit levels.  I’ve used the phrase “bits suck” in public talks to illustrate the view that somehow demand for capacity sucks dollars involuntarily out of provider pockets.  Cisco’s play on the theory has been video; promote telepresence to replace voice calling, encourage teens to generate a ton of video to upload and view, and the demand will raise your total addressable market by driving up the capacity the network needs.

What’s killed this approach is usage pricing, and if there’s anyone left who doesn’t believe that’s now inevitable I’d like to sell them a bridge.  Yes, this kills the original Cisco value proposition for Flip, but it also kills broad-based telepresence.  You can’t replace voice with video unless the video bits cost the same (not per bit, but per call) as voice.  That can’t happen at current equipment and operations cost price points, and Cisco as a provider of equipment and operations tools should see that.

There’s a way out for Cisco; the “service layer”.  Maybe they see that, and maybe they’re working to address the opportunity there, and to pull through service-layer success into the network.  Maybe someone else will do that, in which case we’ll finally see who “the next Cisco” really is.

 

An industry consolidating is an industry commoditizing at the product/service level, and that’s obviously happening in telecom.  The AT&T bid for T-Mobile has now been followed by a Level 3 bid for Global Crossing; both are subject to regulatory approval, of course.

The simple reason for all of this is disintermediation, the fact that operators have become disconnected from mounting service revenues from advanced services while still committed to carrying traffic and supporting connectivity.  If you go back to the old days of Custom Local Access Special Services (CLASS) you may recall that even in the ‘90s it was this group of services (which included Call Forwarding, Voicemail, etc.) that generated the highest ROI, and you may also recall that it was this class of services that gave rise to what became known as the Advanced Intelligent Network (AIN) architecture for voice services.

Operators have been groping, for the past four or five years, for an architecture for the “Next-Generation Advanced Intelligent Network” or NGAIN.  We’ve had a chance to review the approaches taken by operators in three major global regions, and there’s a significant amount of commonality in the ideas presented.  What’s also interesting is that all of the players seem to be basing their NGAIN plans on cloud computing principles and software technology frameworks rather than on network equipment.  IBM and Microsoft seem to be more an inspiration to vendors than Alcatel-Lucent or Cisco or Juniper.  I won’t bore you with why I believe that’s the case; it’s not like I’ve not commented on this before.

Verizon’s Digital Media Services group announced its bid for an in-house NGAIN-like approach, focused on digital video.  The company wants to offer everything from transcoding and content delivery network management to rights management and (of course) wireline and mobile multi-screen delivery.  By grabbing all of these elements, Verizon raises the bar for competitors like (you guessed it) Level 3, who must now capitalize their own comparable approaches.  The question that VDMS isn’t answering is whether the elements of their media architecture will be componentized enough and flexible enough to serve related applications that need information coding, rights management, LBS, etc.

In software, Adobe has launched a new (intermediate) version of its Creative Suite software, version 5.5, to attempt to reignite an upgrade cycle that the economic downturn largely killed.  But at the same time they announced an annual and month-to-month license for all the CS5.5 components, creating something very like a SaaS model without the requirement for cloud hosting.  The goal here is clear; expand the market for Adobe products by making them available to those who don’t expect to need the products every day forever.  The risk is first that some of the current buyers might migrate to that occasional-use category and second that somebody will hack the licensing links and thus make a “temporary” license function forever.

I think this is an interesting development because it shows the strengths and limitations of the cloud as a software delivery framework.  Software as a service is clearly more flexible as a model to support casual and occasional use of something, but the fact that performance of that “something” is then tied to central hosting and network connectivity is enough of a potential problem for some apps that players like Adobe are adopting a license-hosted rather than software-hosted delivery framework.  Thus, it’s an endorsement of hosting rights rather than hosting functionality, and that could be profoundly interesting as an industry trend.

In telecom equipment, Cisco has added an MPLS optical blade to the CRS3 to give a nod to the overall operator desire for more agile optics in the core.  In that respect, they now offer much of what Juniper announced with its own optically empowered label switch, the PTX.  The difference in the two approaches is that Cisco’s does really seem to be architected for “supercore” applications, where Juniper’s PTX could in theory have a much broader mission, including in the metro and as a cloud connector.  Since Juniper hasn’t acknowledged that particular mission set, though, the Cisco approach is at least a viable competitor and perhaps a better strategy for those who are committed to the CRS line already.

Google announced a rather sweeping reorg, one that gives its business-unit heads much greater autonomy and that suggests the company really does intend to transform itself from an ad-revenue-dependent OTT player to something broader.  It doesn’t show much about what that broader something might be, though, and at the same time as the reorg, Page said that he was linking everyone’s bonuses for the year to Google’s social success.  Given that most Google people will have nothing to do with that success, the move seems to undo some of the “independence” that the reorg would have accomplished.  It also raises the question (asked by some commentators already) over whether Google is getting so obsessed with Facebook that it can’t see straight.  All OTT plays are transient; there can be no enduring success exploiting fads.  Google needs to develop an exploitation engine, not try to catch up on a social trend that’s already objectively peaked.

In geopolitics, the Middle East enters what we have all along believed the critical phase of its dissent.  It’s easy to spawn revolution and hard to create governments and societies based on them.  Egypt, whose hopeful revolution was a model for so many, now seems faced with an authoritarian military rule simply because it can’t transition out of it.  Libyan rebels clearly cannot win without outside military intervention, and so the AU is trying to broker a peace that would be acceptable only under two conditions. First, if one presumed that the government believed that the West could sustain military action there indefinitely and prevent their routing rebels, and second if one presumed that the government didn’t intend to honor any peace and would simply wrap up the rebels when NATO stopped flying missions.  A sad but not unexpected turn.  Democracy requires more than a lack of authoritarianism to emerge, but the world hasn’t learned that, apparently.

Economically, the earnings season is about to start and we’ll see whether companies have been able to capitalize on some improved economic signs without hiking their costs and killing any bottom-line benefits of the improvement.  Transitioning out of a cost-reduction-based earnings growth period into normal economic growth is tricky for a world where financial results can be viewed only myopically because of regulatory changes to kill off past bubble excesses.  We’ll find out now whether the juggling has worked in the last quarter.

 

The FCC, continuing on a relatively rare activist track, has ordered wireless operators to establish reasonable data roaming agreements among themselves, something that is seen as increasing wireless competition and thus potentially reducing retail rates.  It’s also ordering utilities to simplify access to utility poles and conduits and to price usage fairly.  The problem is that both these things are considered by some (including Republicans in the FCC) as extending beyond the FCC’s powers.

The key point with this set of arguments isn’t the issues (which we’ll get to) but rather with the fact that they both raise questions on how the FCC can operate and where it needs Congressional action.  The Communications Act of 1934, amended by the Telecom Act in 1996, regulates “common carrier” activity most tightly and offers the FCC considerable power there, but much of broadband, cable, and mobile services are outside that common carrier area.  Given that there’s an increased interdependence among television broadcasting, the Internet, mobile and wireline voice, and broadband services it’s hard to rationalize the separate “Title” regulations of the Act that so differentiate rules and the power of the FCC by service type.  What some of the appeals over FCC rules may end up doing is illustrating (by means of a court opinion) that we need a completely fresh communications act.  A good one would help, but with Congress unable to get past dogma to even pass a budget, getting a good one seems out of the question.

With respect to the specific orders, there is likely to be some benefit to a more open broadband wireless market.  Small players today are unable to leverage spectrum available in rural or even suburban areas because that spectrum doesn’t cover enough geography to be useful to customers and roaming agreements may or may not be available.  That said, we can’t come up with any good examples of cases where roaming was denied; the issue is more one of the price and the FCC’s order doesn’t set prices (it can’t, for non-common-carrier services) but simply demands “reasonable” ones.  That distinction not only threatens to make the order ineffective, it threatens to make it illegal because demanding any sort of pricing standard may exceed the FCC’s powers under the Act.

The “utility” rule is also problematic, but we think more in how it might impact the industry.  Few companies today would be interested in getting into the broadband market on a wide geographical scale; the cost is high and the ROI is low and falling.  Some communities might seek to either establish muni-broadband or to sponsor or encourage in-community services, and where demand and willingness to pay are high enough, local broadband projects might in fact be spawned, encouraged in part by this ruling.  The justification for this order, we think, is more clear and thus it’s less subject to overturning, but it does raise the risk of having broadband inequality grow rather than shrink, putting more demands on universal service funds to level the playing field and making the issue more political.

You can see from this why I think there’s at least a possibility that the T-Mobile buy by AT&T might have a regulatory underpinning.  Companies like T-Mobile are far more capable of funding appeals to the FCC for “unreasonable” roaming pricing.  You can also see that the order adds more fuel to critics of the current FCC—it’s yet another extension of the agency’s powers.  But is it?  As Genachowski pointed out, virtually every FCC order is challenged by somebody based on whether the agency had the power to act.  The FCC historically wins more than 90% of those appeals.  Even the current FCC has kept that average, but we’d have to agree with critics that the one they lost (the Comcast order) has a lot in common with the mobile broadband order and also the neutrality order.  The latter is already being tested on appeal.

In economic news, fear of a US government shutdown over the budget impasse in Congress aren’t weighing much on stocks; perhaps investors think that government is something we need a break from!