“It is the single worst telecom bill that I have ever seen.”

— Reed Hundt, Jan. 31, 2012

Isn’t this rich?

One of the most zealous regulators America has known says Congress is overstepping its bounds because it wants to unleash lots of new wireless spectrum but also wants to erect a few guardrails so that FCC regulators don’t run roughshod over the booming mobile broadband market.

At a New America Foundation event yesterday, former FCC chairman Reed Hundt said Congress shouldn’t micromanage the FCC’s ability to micromanage the wireless industry. Mr. Congressman, you don’t know anything about how the FCC should regulate the Internet. But the FCC does know how to build networks, run mobile Internet businesses, and perfectly structure a wildly tumultuous economic sector. It’s just the latest remarkable example of the growing hubris of the regulatory state.

In his book, You Say You Want a Revolution, Hundt famously recounted his staff’s interpretation and implementation of the 1996 Telecom Act.

The passage of the new law placed me on a far more public stage. But I felt Congress — in the constitutional sense — had asked me to exercise the full power of all ideas I could summon. And I believed that I and my team had learned, through many failures, how to succeed. Later, I realized that we knew almost nothing of the complexity and importance of the tasks in front of the FCC.

…

Meeting in several overlapping groups of about a dozen people each . . . we dedicated almost three weeks to studying the possible readings of each word in the 150-page statute. The conference committee compromises had produced a mountain of ambiguity that was generally tilted toward the local phone companies’ advantage. But under the principles of statutory interpretation, we had broad authority to exercise our discretion in writing the implementing regulations. Indeed, like the modern engineers trying to straighten the Leaning Tower of Pisa, we could aspire to provide the new entrants to the local telephone markets a fairer chance to compete than they might find in any explicit provision of the law. In addition, the law gave almost no guidance about how to treat the Internet, data networks, . . . and many other critical issues. (Three years later, Justice Antonin Scalia agreed, on behalf of the Supreme Court, that the law was profoundly ambiguous.)

…

The more my team studied the law, the more we realized our decisions could determine the winners and losers of the new economy. We did not want to confer advantage on particular companies; that seemed inequitable. But inevitably

wink, wink,

a decision that promoted entry into the local market would benefit a company that followed such a strategy.

There are so many angles here.

(1) Hundt says he and his team basically stretched the statute to mean whatever they wanted. The law may have been ambiguous — and it was, I’m not going to defend the ‘96 Act — yet the Supreme Court still found in a series of early-2000s cases that Hundt’s FCC had wildly overstepped even these flimsy bounds. That’s how aggressive and unconstrained Hundt was.

(2) Hundt’s rules helped crash the tech and telecom sectors in 2000-2002. His rules were so complex and intrusive that, whatever your views about the CLEC wars, the PCS C block spectrum debacle, and other battles, it’s hard to deny that the paralysis caused by the rules hurt broadband and the nascent Net.

(3) Is it surprising that, given the FCC’s poor record of reaching way past its granted powers, some in Congress want to circumscribe FCC regulators by giving them less-than-omnipotent authority? Is the new view of elite regulators that Congress should pass laws, the full text of which might read: “§1. Congress grants to the Internet Agency the authority to regulate the Internet. Go forth and regulate.”

(4) On the other hand, it’s not clear why Hundt would care particularly what Congress says in any new spectrum statute. He didn’t care much for the words or intent of the ‘96 Act, and he thinks regulators should “aspire” to grand self-appointed projects. Who knows, maybe all those Supreme Court smack downs in the early 2000s made an impression.

(5) Hundt says he and his team later realized, in effect, how naive they were about “the complexity and importance of the tasks in front of the FCC.” So he’s acknowledging after things didn’t go so well that his FCC underestimated the complexity and thus overestimated their own expertise . . . yet he says today’s FCC deserves comprehensive power to structure the mobile Internet as it sees fit?

(6) Hundt admitted his FCC relished its capacity to pick winners and losers. Not particular companies, mind you — that would be improper — merely the types of companies who win and lose. A distinction without very much of a difference.

(7) We don’t argue that Congress, instead of the FCC, should impose intrusive regulation through statute. We don’t advocate long and complex laws. That’s not the point. Laws should be clear and simple, but stating the boundaries of a regulator’s authority is not a controversial act. No one should be imposing intrusive regulation or overdetermining the structure of an industry. And that’s what Congress — perhaps in a rare case! — is protecting against here.

Consider Sprint’s apparent decision to use “roaming” in Oklahoma and Kansas instead of building its own network. Now, roaming is a standard feature of mobile networks worldwide. Company A might not have as much capacity as it would like in some geography, so it pays company B, who does have capacity there, for access. Company A’s customers therefore get wider coverage, and Company B is paid for use of its network.

The problem comes with the FCC’s 2011 “digital roaming” order. Last spring three FCC commissioners decided that private mobile services — which the Communications Act says “shall not . . . be treated as a common carrier” — are a common carrier. Only D.C. lawyers smarter than you and me can figure out how to transfigure “shall not” into “may.” Anyway, the possible effect is to subject mobile data — one of the fastest growing sectors anywhere on earth — to all sorts of forced access mandates and price controls.

We warned here and here that turning competitive broadband infrastructure into a “common carrier” could discourage all players in the market from building more capacity and covering wider geographies. If company A can piggyback on company B’s network at below market rates, why would it build its own expensive network? And if company B’s network capacity is going to company A’s customers, instead of its own customers, do we think company B is likely to build yet more cell sites and purchase more spectrum?

With 37 million iPhones and 15million iPads sold last quarter, we need more spectrum, more cell towers, more capacity. This isn’t the way to get it. And what we are seeing with Sprint’s decision to roam instead of build in Oklahoma and Kansas may be the tip of this anti-investment iceberg.

Last spring when the data roaming order came down we began wondering about a possible “slow walk to a reregulated communications market.” Among other items, we cited net neutrality, possible new price controls for Special Access links to cell sites, and a host of proposed regulations affecting things like behavioral advertising and intellectual property (see, PIPA/SOPA). Since then we’ve seen the government block the AT&T-T-Mobile merger. And the FCC is now holding up its own important push for more wireless spectrum because it wants the right to micromanage who gets what spectrum and how mobile carriers can use it.

Many of these items can be thoughtfully debated. But the number of new encroachments onto the communications sector threatens to slow its growth. Many of these encroachments, moreover, are taking place outside any basic legislative authority. In the digital roaming and net neutrality cases, for example, the FCC appeared clearly to grant itself extra- if not il-legal authority. These new regulations are now being challenged in court.

We need some restraint across the board on these matters. The Internet is too important. We can’t allow a quiet, gradual reregulation of the sector to slow down our chief engine of economic growth.

— Bret Swanson

— Holman Jenkins, The Wall Street Journal, January 18, 2011

— John Cochrane, Bloomberg View, December 21, 2011

Some say, don’t worry, assuming that another U.S. mobile provider will pick up T-Mobile. Not so fast. If Washington disallowed AT&T, it would do the same for Verizon. Sprint was pursuing T-Mobile before AT&T swooped in, but a Sprint-TMo combo makes much less sense. The spectrum-technology-tower infrastructure positions of AT&T and TMo were almost perfectly complementary. Not so for Sprint, who uses mostly higher frequencies, has always been a CDMA company (as opposed to WCDMA), and is already finding it challenging to raise the funds to build its own LTE network, given rocky times with partner Clearwire.

The U.S. mobile industry has been a shining star in an otherwise dark U.S. economy. But with Washington nixing the AT&T- T-Mobile merger, and given recent struggles at Clearwire and engineering disputes with upstart LightSquared, it’s not clear mobile will continue on its steep ascent. The FCC “staff report” opposing the AT&T-TMo deal didn’t even address the elephant in the room – spectrum. It’s odd. The FCC declared a spectrum crisis two years ago and repeatedly emphasized the urgent need for broadband expansion. Then, poof, not hardly a mention of either in its report. Not a good sign when the expert agency has taken its eye off the ball.

The industry is still full of potential, but there will be near-term disruptions as companies sort out new spectrum, business, and technology strategies. And as millions of un- and underemployed Americans know, time is money. Regulatory impediments and foot-dragging are especially harmful – and even infuriating – for an industry that desperately wants to grow. For an industry that is in many ways the bedrock of the 21st century American knowledge economy.

Beyond the disquieting roller-coaster in the mobile industry, one wonders more broadly about the American economy. Just what kind of business are we allowed to conduct? What investments are preferred – by whom? How far will the tilt of decision-making from private entities to public bureaucracies go?

— Bret Swanson

> Why cloud computing requires a major expansion of wireless spectrum and investment

> An exaflood update: what Mobile, Video, Big Data, and Cloud mean for network traffic

> Plus, a new paradigm for online games, Web video, and cloud software

After the decision to separate its online streaming and DVD-in-the mail services, Wall St. Cheat Sheet asked, “Is Netflix the new Research In Motion?”

Translation: Will Netflix be just the latest technology titan to suffer a parabolic plunge? We don’t know ourselves. Netflix’s streaming-DVD split is a reaction to the overwhelming popularity of its streaming service. CEO Reed Hastings is trying to avoid complacency and stay ahead of the curve. Maybe he is panicking. Maybe he’s a genius. But that is just the point: the digital curve these days is shifting and steepening faster than ever.

Which makes the government’s attempted damming of this digital river all the more harmful. Wireless spectrum is a central resource in the digital economy, and a chief enabler of services like Netflix. Yet Washington hogs the best airwaves – at last count the government owned 61%, the mobile service providers just 10%. So AT&T, its pipes bursting with iPhone and iPad traffic, tries to add capacity by merging with T-Mobile. Nope. The Department of Justice won’t allow that either.

Something, however, has got to give. New data from wireless infrastructure maker Ericsson shows that mobile data traffic jumped 130% in the first quarter of 2011 from 2010. Just four years ago, mobile data traffic was perhaps 1/15th of mobile voice traffic. Today, mobile data is likely three times voice. Credit Suisse, meanwhile, reports that U.S. mobile networks are running at 80% of capacity, meaning many network nodes are tapped out.

More mobile traffic drivers are on the way, like mass adoption of video chat apps and Apple’s imminent iCloud service. iCloud will create an environment of pervasive computing, where all your computers and devices are in continuous communication, integrating your digital life through a virtual presence in the cloud. No doubt too, software app downloads and the rich content they unleash will only grow. As of July, 425,000 distinct Apple apps had been downloaded 15 billion times on 200 million devices. The Android ecosystem of devices and apps has been growing even faster.

Perhaps the iCloud service in particular won’t succeed, but no doubt others like it will, not to mention all the apps and services we haven’t thought of. We do know that more bandwidth and connectivity will encourage more new ideas, and thus more traffic. In all, IDC estimates that by 2015 we will create or replicate around 8 zettabytes (8,000,000,000,000,000,000,000 bytes) of new data each year.

Big Data, in turn, will yield large economic benefits, from medical research to retail. The McKinsey Global Institute estimates that Big Data – the sophisticated exploitation of large sets of fine-grained information – could boost annual economic value in the U.S. health care sector by $300 billion. McKinsey thinks personal geolocation services could expand annual consumer surplus by $600 billion globally.

The wide array of Big Data techniques and services is crucially dependent on robust and capacious networks.  U.S. service providers invested $26 billion in 2010 – and $232 billion over the last decade – on wireless infrastructure alone. Total info-tech investment in the U.S. last year was $488 billion. We’ll need more of the same to spur and accommodate Big Data, Cloud, Mobile, Netflix, and the rest. But without more spectrum, the whole enterprise of building the digital infrastructure could slow.

Picocells and femtocells – smaller network nodes that cover less area – can effectively expand capacity for some users by reusing existing wireless spectrum. These mini cells work together as HetNets (heterogeneous networks) and will be a central feature in the next decade of wireless expansion. But the new 4G mobile standard, called LTE, gets the biggest bang for the buck in wider spectrum bands. LTE also is by far the most powerful and flexible standard to manage the complexities and unlock the big potential of HetNets. So we see a virtuous complementarity: more, better spectrum will boost spectrum reuse efficiencies. In other words, spectrum reuse and more spectrum are not either-or alternatives but are mutually helpful and reinforcing.

We don’t know whether the new Netflix strategy will fly, whether iCloud will succeed, how HetNets will evolve, or exactly what the mobile ecosystem will look like. But in such an arena, we do know that maximum flexibility – and LOTS more spectrum – will give a beneficial tilt toward innovation and growth.

— Bret Swanson

In a study prepared for Sprint, however, professor David Neumark says the EPI estimate fails to account for the fact that T-Mobile will no longer be investing its normal couple billion dollars per year after it is subsumed by AT&T. He says EPI is only looking at AT&T’s gross increase, not the net industry effect. He thinks the net effect will be negative and will thus cost jobs.

This is a fair point. We should analyze these things in as dynamic and realistic a way as possible. But the Sprint study appears to be relying on its own static, simplistic view of the world. Namely, it assumes an independent T-Mobile would keep investing billions a year on network infrastructure. Even though T-Mobile says it has neither the spectrum nor the financial resources from its parent Deutche Telekom to continue as an effective competitor in the highly dynamic mobile market where companies must constantly upgrade their networks to exploit all the good stuff offered by Moore’s law. In other words, it’s unlikely T-Mobile will continue investing several billion per year as a stand-alone company.

Another point that needs clarification: Some smart people think the AT&T estimate of $8 billion in additional capex is specific to the merger — connecting the two networks, expanding LTE beyond its previous plans, etc. But if these people are right, it’s still the case that AT&T will have to adopt at least some portion of network upgrades and maintenance that T-Mobile does every day on its own network. So AT&T’s capex spend is likely to go up beyond this additional $8 billion. In a merger scenario, therefore, not all, perhaps not even most, of the existing T-Mobile network investment “goes away.”

Another scenario in which a non-AT&T carrier acquired T-Mobile would result in whatever similar loss of T-Mobile specific investment that Sprint claims under the AT&T-T-Mobile scenario. But it doesn’t account for this possibility either.

So it seems the new Neumark-Sprint analysis also is not really a net estimate, just another form of gross estimate.

Ultimately, no one knows exactly what will happen in an ever-changing economy in our ever-changing world. But it is pretty safe to say that a healthy, growing, vibrant mobile industry will support more sustainable jobs than an unhealthy industry. The Sprint paper correctly acknowledges that efficiencies from mergers can result in all sorts of economic welfare gains, both for consumers and for workers who move into higher-value jobs.

A stand-alone T-Mobile is not a healthy company, and without T-Mobile, AT&T, although healthy, doesn’t have the spectrum or cell towers it needs to match current growth and fuel new growth. The proposed merger would result in a major supplier of next gen 4G broadband mobile services across most of the U.S. The benefits of this go far beyond the capex it takes to build the network (though very important) and extend to every citizen and industry that will enjoy ubiquitous go-anywhere broadband. These jobs created across the economy are incalculable but are likely to be substantial.

It’s hard to believe, but that’s exactly what’s happening with the DoJ’s attempt to block AT&T’s merger with T-Mobile.

AT&T wants T-Mobile’s wireless spectrum and compatible cell-tower infrastructure so it can more quickly roll out next generation 4G mobile broadband services. It can’t wait for much needed spectrum auctions that will hopefully occur over the next several years. Meanwhile, T-Mobile doesn’t have the spectrum or financial wherewithal (through its parent Deutche Telekom) to build its own 4G network. Perfect fit, right? Join forces to rapidly deploy new network capacity and coverage for the next iteration of iPads, Androids, Thunderbolts, Galaxy Tabs, and broadband everywhere.

The Communication Workers of America union thinks the union is a good idea, estimating the merger will create 96,000 jobs. AT&T even this morning sweetened the pot by announcing – before DoJ’s surprise announcement – that on completion of the merger it would bring back 5,000 call center jobs from overseas and guarantee no job cuts for T-Mobile call center employees.

DoJ says a combination will hurt competition, but T-Mobile itself says it can’t really compete in the next generation of 4G. And DoJ ignores the fact, reported by the FCC, that 90% of the U.S. population has five or more mobile service provider choices, with brand new entrants like Clearwire, LightSquared, and Dish Network coming online and expanding every day. DoJ relies on indirect evidence of current market share to infer that bad things might happen in the future even as it ignores direct evidence of low prices, wild innovation, and widespread consumer choice in networks and devices.

This July 11 paper from economists Gerald Faulhaber, Robert Hahn, and Hal Singer really says it all.

With the economy in crisis, you’d think someone with a bit of business sense would be seeking every way to expand investment and employment, not find creative ways to quash it. Antitrust lawyers imagine themselves guardians of the public good, but there’s a big problem: they usually see the world through a rear-view mirror, wearing blinders, while experiencing tunnel vision.

Was it antitrust that saved the world from big, bad Microsoft. No, the Internet, Google, and Apple, among hundreds of other innovators, diluted Microsoft’s very temporary dominance. Did the AOL-TimeWarner merger kill competition in the online content or broadband markets? No. To remember the alarmism over that merger is to laugh. DoJ did block WorldCom’s bid for Sprint, and of course WorldCom went bankrupt. Did Verizon’s acquisition of Alltel kill innovation in the mobile market? What? Who’s Alltel?

There’s just no way a few attorneys in Washington can decree the proper organization of an industry that is so exceedingly dynamic. Meanwhile, the economy shuffles along slowly, very slowly.

— Bret Swanson