Satellite-radio company Sirius XM has never been the best of friends with the FCC, thanks largely to the molasses-like speed with which the Commission moved to approve the Sirius-XM merger and the silly restrictions it attached to its approval -- measures which helped push the company into bankruptcy. The animosity is bubbling up again, as Sirius XM isn't happy that the FCC may soon allow some radio spectrum that's near the company's spectrum to be used for wireless broadband services. The spectrum in question is in the 2.3 GHz range. One chunk of it was auctioned off to telcos in 1997, and it's since been used for fixed backhaul transmissions for their networks, but the FCC (and the telcos) would like to see it used for wireless broadband services like WiMAX. An adjoining chunk is used by Sirius XM's network of terrestrial repeaters that complement its satellite signal coverage, and the company is concerned about those repeaters being overpowered and interfered with. This is the typical sort of posturing that comes out of any company who has spectrum that's "threatened" -- like broadcasters seeking to use regulation to stifle any competition from new technologies. The interference issues are important, but the FCC knows that, and typically works to ensure that they aren't a problem. What makes this objection from Sirius XM a little bit ironic, though, is that the the two companies have been cited in the past by the FCC because their terrestrial repeaters violated interference rules. Rules that allow for the more flexible use of spectrum -- while respecting interference -- are the best way forward for everyone, and like the NAB's spurious arguments against the Sirius-XM merger, the satellite company's objections should be rejected here.

Back in 2006, a startup called M2Z Networks asked the FCC to give it a sizable chunk of valuable spectrum for free, and in exchange, it would set up a nationwide wireless broadband network to offer free (and slow) "family-friendly" service and pay the government 5% of the revenues from a paid premium service also running on the network. We were skeptical of the plan because of its aggressive rollout schedule and the network's slow speed ("512 kbps" -- keep that figure in mind -- for the free tier/3 mbps for the paid tier), but mostly because of the huge expenditure required to build out a wireless network covering 95 percent of the US population -- expenditure which would be very difficult to recover from a free, slow service. The FCC wasn't convinced, either, and rejected M2Z's proposal in 2007, though that wasn't the end of it. A congresswoman introduced a bill tailor-made for M2Z's specs, but it went nowhere. Still, M2Z lives on, and it's now looking for a chunk of stimulus funding to start building its network.

It doesn't look like M2Z has updated its plan at all since 2006, doing nothing to address any of the concerns, beyond replacing the need for private investment with a second government handout, on top of its free spectrum. In particular, they don't seem to have upped their targets for the speed of their network. What the company was proposing wasn't exactly fast in 2006, is pretty pokey now, and will be even less attractive by the time its network would get up and running. In addition, it's worth clarifying that the "512 kbps" M2Z talks about is arrived at by adding the 384kbps downstream speed plus the 128 kbps upstream speed they plan to offer. That's a new trick we haven't seen before, even in the world of "up to" broadband speed advertising.

This should come as no surprise, given that the court indicated this a few months back, but it's now official that the FCC has no power to mandate net neutrality or to punish Comcast (even with a gentle wrist slap) for its traffic shaping practices. Lots of people seem upset by this, but they should not be. This is the right decision. The FCC was clearly going beyond its mandate, as it has no mandate to regulate the internet in this manner. In fact, what amazed us throughout this whole discussion was that it was the same groups that insisted the FCC had no mandate over the broadcast flag, that suddenly insisted it did have a mandate over net neutrality. You can't have it both ways (nor should you want to). Even if you believe net neutrality is important, allowing the FCC to overstep its defined boundaries is not the best way to deal with it. So for those of you upset by this ruling, look at it a little more closely, and be happy that the FCC has been held back from expanding its own mandate. Otherwise, the next time the FCC tried to do something like the broadcast flag or suddenly decided it could enforce "three strikes," you'd have little argument.

That doesn't mean that Comcast should get off free for its actions. It should still be punished -- but by the FTC, rather than the FCC -- for misleading its customers about what type of service they were getting, and what the limitations were on those services. As for the FCC, if it really wants a more neutral net, it should focus on making sure that there's real competition in the market, rather than just paying lip service to the idea in its broadband plan.

There was lots of press coverage about the FCC's broadband plan on Monday, as the commission released an exec summary of its nearly 400-page plan for broadband in the US. If you want to wade through the details, it's all there online for you. But, if you want a basic summary, it appears that, like pretty much everything this FCC is doing, it's a lot of talk and little of consequence. So far, I've seen statements from lobbyists on pretty much all sides of the issues "commending" or "applauding" or "supporting" the FCC. And that's because there's basically nothing controversial and nothing big at all in the plan. It appears to try to thread the needle and keep everyone happy -- and in doing so, it appears to punt on the all-important questions. If it was really about making the necessary changes, key players would be up in arms. But they're not.

The report pays lip service to greater competition and talks about getting better data and about making better use of wireless spectrum. Well, duh. But it takes no bold steps -- does nothing to really take control out of the hands of the incumbent telco providers -- just as we originally expected, even if really disruptive, but necessary, ideas were considered, they don't appear in the final plan.

In the end, it's the kind of plan you put forward if you're being political and don't want to make waves. It's not the plan you put forward if you're making a bold leadership statement about how to really expand broadband in this country. Too bad.

Back in 2003, we had written about how Verizon's CEO, Ivan Seidenberg, was betting big on future technologies. It was in response to a Business Week profile that oddly positioned the idea of installing fiber-to-the-home as being a huge risk. Lots of investors were against it, because it was expensive. But if you looked at where the market was really heading, you could see that it would position Verizon way ahead of the competition. Broadband keeps getting faster. While other companies were focusing on minor incremental improvements, Verizon wanted to leapfrog them all -- and has done a damn good job of it. In many of the markets where Verizon FiOS is now offered, the competition is left in the dust.

But, now, it sounds like the bean counters with a shortsighted quarterly focus may be winning out. Broadband Reports is noting that Verizon is basically giving up on any more FiOS implementations. If you're in an area that's not covered, don't expect Verizon to show up at your door with a fiber optic cable any time soon. In fact, they're using the "threat" of not installing fiber to try to get more cash from the government:

But according to long-time industry analyst Dave Burstein, Verizon's essentially cutting and running on additional deployment plans, leaving a very large chunk of their footprint on last-generation DSL and copper-based voice networks.

Burstein tells Broadband Reports that he doesn't see Verizon expanding any further (with the exception of major cities where they've signed franchise agreements) unless they get money from Uncle Sam. "They want to get on the gravy train, although I think the new, less competitive leadership is the primary explanation," says Burstein when asked why. Seidenberg, the driving force behind the first wave of FiOS, is on his way out -- and his replacements aren't quite as bullish on angering investors for the sake of this whole "future" thing.

Of course, they can do that when there isn't any real competition on the horizon. We can hope that Google's toe dipping into high speed broadband turns into a bigger deal (at which point Google becomes the disruptive future-looking company instead of Verizon), but there's still not much of an indication that the company is planning to ever roll broadband out on a widespread basis. In the meantime, of course, other countries that have much greater competition are also enjoying much faster speeds. And, rather than dealing with that, the FCC is talking to puppets (literally) about protecting kids from the evils of broadband. And we wonder why we're so far behind other countries in broadband speeds.

We were a bit concerned last year when the FCC held hearings which were technically about the national broadband policy, but instead focused on copyright, something that is clearly well outside the FCC's mandate -- something the FCC already got in trouble for a few years back with its attempt to mandate a "broadcast flag." However, there are now some additional concerns that this administration is ignoring the limits of the FCC's mandate. As you may recall, a few weeks back, the Justice Department -- at the urging of the entertainment industry -- set up a special IP task force to deal with "the rise of intellectual property crime." However, some are quite worried about how this task force intends to go about this.

Copycense points us to a letter sent to the Justice Department by the Center for Democracy and Technology, which noticed that, in the announcement of this new task force, the Justice Department said it intends to work with the FCC on intellectual property enforcement. That's a problem:

What's wrong with that? It's an invitation to major mission creep. The FCC's job is to execute and enforce federal communications law. It has no authority and no role in enforcing other laws. Lots of unlawful activity -- from intellectual property infringement to racketeering to securities fraud to deceptive advertising -- may occur over or using communications networks. But that doesn't make it the FCC's job to police such activity. The FCC's focus is, and should remain, promoting the availability of high quality communications capabilities in the United States -- not policing what users do with those capabilities.

In addition, the only reason to involve the FCC would be to force the entities the FCC regulates -- communications providers, and in particular ISPs -- to start actively policing I.P. infringement. Having government force ISPs to take on this new role should raise serious red flags. The idea that ISPs don't serve as gatekeepers or content censors, and aren't themselves responsible for what users do on the network, has been a bedrock principle that underpins the Internet's open and innovative nature. Casting it aside would be a serious mistake and a radical departure from U.S. communications policy.

It's no secret that a lot of the network neutrality debate has been positioned as pitting online companies -- such as Google -- against infrastructure companies -- such as the telcos. That's a bit of an unfair characterization, because there are lots of issues at play when it comes to network neutrality, but it's getting a lot of attention that Google and Verizon filed a joint statement to the FCC about net neutrality. Of course, despite the PR value of this, I wouldn't read too much into it. The letter itself (pdf) lays out their "common ground" in incredibly broad and vague language that is borderline meaningless at times. And, of course, at the same time both companies filed their own separate statements in which they disagree heavily (Verizon even calls out Google by name). By way of comparison:

• Joint Submission by Google and Verizon: 9 pages
• Google's submission: 98 pages
• Verizon's submission: 139 pages

There's obviously still a lot that they don't agree on at all. Still, it is nice that they at least tried to come together a bit to find some common ground. That is pretty rare in a political culture often driven by extremes on each end playing tug o' war and hoping that the end result is somewhere in the middle. It would certainly be nice if this sort of thing became a little more common -- with more folks trying to find what the points of agreement are, separate from the points of disagreement.

With the FCC trying to use its legal fight with Comcast to push for net neutrality, an appeals court has pointed out that the FCC doesn't have any legal basis for policing net neutrality. This is a point that we've made in the past, when we found it odd that the same groups that fought like dogs to have a court say that the FCC had no mandate to enforce a "broadcast flag" were the same groups that suddenly thought the FCC had a mandate over net neutrality.

The truth -- as courts have recognized in both cases -- is that both appear to be situations where the FCC is overreaching its authority.

Still, it's not just the groups supporting the FCC on net neutrality that are taking inconsistent positions here. Remember how Comcast -- which this latest ruling supports -- has in the past used the argument that the FCC does have this mandate over them to try to avoid regulatory oversight in California. So neither side looks very good here. In fact, in a recent interview concerning the proposed Comcast/NBC merger, Comcast's spokesperson highlighted that people shouldn't be afraid of NBC getting preferential treatment because "existing law already prohibits any discrimination." What existing law? Uh, the same one Comcast just convinced the court doesn't exist. In other words, the law doesn't exist when Comcast doesn't like it, but if anyone says Comcast might violate neutrality, it insists the law suddenly does exist.

On the whole, it's a good thing that the court is making sure the FCC doesn't overstep its authority here -- though, there's a pretty good chance that the response is going to be a push in Congress to give the FCC this authority. And that's where things get sticky. Should the FCC have the right to regulate the internet? While the concept of net neutrality is important and it would be bad for it to go away, that's quite different than opening up the pandora's box of giving the FCC the right to enforce it. The risk of unintended (and dangerous) consequences is quite high.

Instead, the real focus should be on increasing competition in the broadband space so that users have a real choice and can ditch any provider who decides to ignore the principles behind net neutrality. Until that happens then we're going continue to have these battles over the symptoms of not enough competition.

There are many people out there who are greatly troubled by the way the FCC "enforces" efforts against broadcast indecency -- with some even questioning whether or not it's even constitutional for the FCC to act as a public arbiter of indecency. It looks like the FCC has just hired one such person, in the form of Duke telco law professor Stuart Benjamin. Since I consider myself among those who question how indecency fines can fit with a First Amendment, this seems like a good thing -- but the reporting on it, at the link above, only focuses on the complaints about this hire. But the complaint comes from the Parents Television Council, whose main claim to fame is flooding the FCC with bogus complaints about "indecent" programming from people who didn't even see whatever it is they're complaining about. So you can understand why they might complain. If they lose the ability to create moral panics, it's harder to keep going.

Reader Kasey Krehbiel alerts us to some news coverage of the FCC's recently released list of seven "critical gaps" in reaching universal broadband (pdf) and is rightfully surprised to note that a lack of competition in the marketplace is not on the list. Such an absence makes you wonder if the FCC is really paying attention. Most of the other "gaps" would quickly disappear if there were meaningful competition in the market -- but we've never had a real policy of encouraging broadband competition in the US. Instead, policy has mostly been driven by incumbents who have lobbied hard for exactly the opposite.