Jamal Simmons’ piece in today’s The Podium raises two important issues. First, we should not take for granted how much the private sector has invested in meeting the increasing demand for broadband services. According to his piece, broadband providers have invested tens of billions of dollars last year in broadband deployment. I remember when the fiber deployments of AT&T and Verizon started up back in 2005. The companies were investing upwards of $30 billion a year to compete with entrenched cable monopolies and provide the competition not only for cable programming but higher broadband speeds.

That was private investment. No government subsidies were being provided. No universal service. Ironically the impediment to broadband deployment was onerous franchise agreements that AT&T and Verizon, new to the cable franchise game, had to face. They could have slowed down or worse yet yanked their deployment plans off the board. Instead they marched ahead with the intent of meeting consumer demand, again without subsidies.

Second, there is the issue of flow of capital. Mr. Simmons’ piece is a reminder that as regulator of commerce, the federal government should be willing to avoid applying unnecessary regulations that would discourage investment in the private sector in general and the broadband sector in particular. I saw a number of cable firms that may have ended up providing competitive broadband services had not entry fees and other franchise requirements kept them out of certain markets.

These requirements didn’t even have anything to do with consumer protection, but more so with localities extracting onerous obligations such as cable TV studios and I-Nets; items that municipalities should have funded from their own general funds. Now these same municipalities complain about a lack of competition in their local franchise areas. Go figure.

I remember flying back from Washington in 1995 after participating in state lobbying efforts before the Florida Congressional delegation. We were sharing our thoughts on the proposed Telecommunications Act of 1996. On the flight was one of AT&T’s lobbyists. He was looking despondent. His face reflected what we all knew was going to happen. BellSouth was about to get its way. They would have a bill that would give them access to the lucrative long distance markets; allowing them to bundle services and provide completion that AT&T wasn’t ready to head off.

Be mindful that this was a little over a decade since AT&T saw itself broken up into about nine baby bells and leaving Ma Bell with just its long lines services. Now, thanks to the Congress, some states, and the Bells, Ma Bell was about to be eaten by her children. Yes, I felt Jack’s pain on that flight.

The tables have changed for AT&T. It’s back in the local phone service business. It still has its long distance service, and now provides broadband and wireless phone services. Over a thirty year period, the one-play has turned into the four-play, and this time AT&T doesn’t want another attack on its business model. They have learned to appreciate pluralism.

Consumer groups, like the ones in California mentioned in this article, find themselves on the losing side of regulatory and legislative debates because they are fragmented (how many damned consumer groups do you need talking about phones), prone to vitriol (just read social media comments of Free Press and Public Knowledge) and don’t know how to hug and bake cookies. After all these years they haven’t learned the tricks of the trade, but are taken aback by corporations that appear a whole lot better at addressing the human element of the legislatures and regulatory commissions they come in contact with.

Yes, consumer watchdogs. You aren’t losing because AT&T is good at lobbying. You’re losing because you are not good at being … human.

A farmer wants the hogs to get bigger faster so she spends more money on feed. Consumers want more capacity to send data, texts, and voice messages, so to accommodate, wireless providers need more spectrum to meet consumer needs.

In his blog post, “More Price Hikes from a Spectrum Starved Industry”, Walter Piecyk notes the following:

“MetroPCS, for one, could have benefited from the likely spectrum sales that would have resulted from an approved AT&T/T-Mobile merger. Instead, MetroPCS and other wireless operators are likely to simply increase pricing on the limited, remaining capacity on their networks.”

In other words, if you foreclose on the hog farmer and take away access to alternative land for growing and feeding hogs, it’s going to cost the farmer more. If it costs the farmer more to feed hogs, it’s going to cost more to buy that holiday ham.

The Federal Communications Commission should have forecasted this. It was too focused on a simplified notion of competition; that more participants in the market took precedence over the price impacts stemming from reduced access to spectrum by the very carriers it allegedly was trying to protect.

Hopefully going forward as the FCC reviews other requests to transfer spectrum licenses, it includes in its decision matrix the impact scarcity has on consumers.

The Los Angeles Times opinion writers raised the issue in an editorial yesterday, pointing out that it would take approximately five years to clear out the 1755-1850 Mhz band.

Five years to clear agencies out of the 1755-1850 Mhz band? Market strategies such as the abandoned merger between AT&T and T-Mobile would have gotten spectrum into the hands of a carrier that wanted to put it to best use.

Law professor Susan Crawford wrote a post for Wired.com arguing that H.R. 3309 would take the FCC in the wrong direction by gutting the agency’s power. After giving a brief history of deregulatory efforts and market entry spawned after the signing of the Telecommunications Act of 1996, Professor Crawford concluded that,

“You’d think that Congress would want to have an empowered regulator able to do something to protect the country from the rational, profit- seeking depredations of our new generation of monopolists.”

According to Professor Crawford, that new generation of monopolists includes Comcast and Time Warner for high-speed internet access; and AT&T and Verizon for wireless services.

The last thing the FCC needs is any more encouragement to follow an increased interventionist scheme. Just yesterday, T-Mobile USA announced the closing of seven call centers and the layoffs of hundreds of workers. The FCC was asked to consider a projection of job losses and call center closings in its review of the request to transfer licenses from T-Mobile to AT&T.

Instead, the FCC decides to play merger expert and, along with the Department of Justice, forced AT&T and T-Mobile to abandon their merger plans. Just like its net neutrality rules, the FCC never considered market impacts of its decisions. They refuse to carryout and document a market failure analysis before implementing decisions. This is not type of agency that anyone wants to have greater regulatory control.

It should stick to its number one priority: ensuring access to public resources such as spectrum and rights-of-way.