Recently, the FTC issued a report on muni wifi (press release here).  It's the first report of the FTC's Internet Access Task Force. 

Commissioner Leibowitz issued a concurring statement supporting the report.  It's a useful statement - particularly footnote 4:

As an agency charged with enforcing the antitrust laws, we know the importance of competition well. Increased competition means lower prices and higher quality for consumers. But the lack of competition along the "last mile" of the Internet to consumers can have an even more profound effect than high prices in local markets. It can interfere with the growth and development of the Internet everywhere.

Thanks, Commr. Leibowitz.  He's citing the FCC numbers showing that more than 60% of U.S. zip codes have at most a choice between only two providers of broadband access, 40% have only one choice, and 13% have no choice at all.  He's noticed that "[t]he municipal broadband movement is a grassroots effort by this country’s local officials – many of whom recognize that broadband Internet access is increasingly essential to economic growth – to respond to real needs on the part of their constituents to make broadband more available and affordable." 

He's aware of the risk to that economic growth posed by incumbents who in the recent past have wanted to make sure that municipalities couldn't provide broadband access to their citizens.  It's a strong statement, and it suggests that the FTC is ready to take up the cudgels on behalf of municipalities that want to install their own networks but are being thwarted by established telephone or cable companies.

The next report of the task force will be on network neutrality.  I have a feeling I know where that will come out - Majoras's comments in August amounted to a rallying cry for the incumbents. 

I hope that Commr. Leibowitz will be a temporizing influence on the task force.  If he understands the incentives of the existing providers of broadband access -- and he seems to -- he will acknowledge that they have every reason to manage networks in ways that will favor their own packets.  There are many things these network providers can do short of outright blocking that nonetheless harm "the growth and development of the Internet."  He should be asking hard questions about promises of common carriage these providers made in exchange for the system of public subsidies and regulatory soft treatment that allowed them to build these networks. 

Most importantly, Commr. Leibowitz needs to understand that no one can see what's going on inside these networks.  We have no way of knowing what incremental discrimination is already happening.  There simply is no data.  To say "we will wait until there is evidence of harm" is to play on on the telcos' field -- they are masters of obfuscation and creative accounting.  Claims of harm will be met by them with waving hands and wads of reports, none of which will be falsifiable from the outside.  

Think economically, Commr. Leibowitz:  the incumbents have managed to work us all the way back to the telephony business model.  Is optimizing on billing the best way to run a broadband network, in the long run?