“AT&T did not file this lawsuit because Verizon’s ‘There’s A Map For That advertisements are untrue; AT&T sued because Verizon’s ads are true and the truth hurts.”

– Excerpt from Verizon’s response to AT&T’s complaints about its new ad campaign

Verizon was right. The truth does hurt. And it is especially painful when it’s meted out by a court of law. A U.S. District judge on Wednesday denied AT&T’s request to force Verizon to pull its “There’s A Map For That” and “Island of Misfit Toys” commercials, saying that while the ads might be “sneaky,” they are not deceptive.

“People might misunderstand [Verizon’s commercials],” said U.S. District Judge Timothy Batten, “but that doesn’t mean they’re misleading.”

He gave AT&T (T) another chance to make its case at a Dec. 16 hearing, but given his dim initial view of the company’s complaint, the carrier seems unlikely to prevail.

AT&T plans to press on with the case anyway. “While we are disappointed with the court’s decision on our request for a temporary restraining order, we still feel strongly that Verizon’s ads mislead consumers into thinking that AT&T doesn’t offer wireless service in large portions of the country, which is clearly not the case,” AT&T spokesman Mark Siegel said in an email. “We look forward to presenting our case to the court in the near future.”

In the meantime, AT&T has begun running some attack ads of its own. Sadly, the first effort is not nearly so clever as Verizon’s (VZ) and features far too much Luke Wilson and far too little humor.

PREVIOUSLY:

• Verizon to AT&T: Do Yourself a Favor and Shut Up
• Frosty’s Winter Litigation Wonderland: AT&T Demands Verizon Pull Holiday iPhone Ads [With Full Complaint]
• Verizon Banishes iPhone to Island of Misfit Toys
• Verizon on AT&T Suit: There’s a Word for That. “Junk.”
• Verizon to iPhone Users: “Want Five Times More 3G Coverage? There’s a Map for That.”

Absent one-time charges, the company broke even for the quarter. Analysts had been expecting a two-cent loss on revenue of $609 million.

Good news, but it was tempered with a bit of bad. Because Sirius’s (SIRI) subscriber growth is slowing. The company ended the quarter with 18.5 million total subscribers. That’s up 103,000 from the second quarter, but down 2.1 percent from a year earlier.

“We are very pleased with what we accomplished during the third quarter, especially when considering the macroeconomic issues affecting consumers and the auto industry,” Sirius CEO Mel Karmazin said in a statement.

“We managed to grow revenue, grow ARPU, reduce operating costs, increase adjusted income from operations significantly, and refinance higher cost debt,” Karmazin added. “We look forward to continuing this performance. We grew subscribers and improved churn in the quarter, and we are well positioned to take advantage of an economic rebound. We expect to grow subscribers, revenue, and cash flow next year regardless of the magnitude of any recovery.”

“After Gateway’s 2004 merger with eMachines, AMD attempted to revive the relationship it had enjoyed with Gateway until 2001, but experienced extremely limited success. While Gateway built one AMD-powered desktop model at the request of Circuit City, AMD remains locked out entirely of Gateway’s direct internet sales, its commercial offerings and its server line. According to Gateway executives, their Company has paid a high price for even its limited AMD dealings. They claim that Intel has beaten them into ‘guacamole’ in retaliation.”

– Excerpt from AMD’s 2005 complaint against Intel

Looks like it’s going to be a very busy fall for Intel legal. This morning, New York Attorney General Andrew Cuomo filed a federal antitrust lawsuit against the company, alleging that it violated state and federal laws with a “systematic campaign” of illegal conduct to maintain its monopoly.

At issue here, once again, is Intel’s alleged practice of using bribery and coercion to maintain its monopoly, something rival AMD complained about in its own antitrust suit against Intel (INTC) in 2005.

AMD (AMD) alleged, for example, that in 2000, Michael Capellas, then chief executive of Compaq Computer, told AMD that because of Compaq’s relationship with AMD, Intel withheld the delivery of some microprocessors he needed for servers. Capellas told AMD he would stop buying from it, saying he “had a gun to his head.”

Further, in 2004, Gateway officials are alleged to have told AMD that Intel “beat them into guacamole” in retaliation for their limited dealings with its rival. These are but two incidents in a list that includes similar alleged acts of coercion by Intel involving 38 other computer makers, distributors and retailers.

Apparently, Cuomo has found evidence of similar behavior. “Rather than compete fairly, Intel used bribery and coercion to maintain a stranglehold on the market,” Cuomo said in a statement. “Intel’s actions not only unfairly restricted potential competitors, but also hurt average consumers who were robbed of better products and lower prices.”

This according to a new survey from ChangeWave Research (see chart below; click to enlarge), which found that the iPhone now accounts for 30 percent of the smart-phone market. That’s almost double the share it held a year ago. Remarkable considering that the device is currently available from just a single carrier.

“Apple’s share keeps skyrocketing,” said ChangeWave research director Paul Carton. “Their last earnings report points that out. But these numbers show that their momentum is continuing. They’re firing on all cylinders.”

Indeed. Of consumers who plan to buy a smart phone in the next 90 days, 36 percent plan to purchase an iPhone. Meanwhile, 27 percent are considering a BlackBerry and eight percent a Palm (PALM) device.

Said Carton: “In the horserace among manufacturers, the release of the iPhone 3GS has led to a big jump in smart phone market share for Apple and has placed them within striking distance of Research In Motion–whose slew of models are still number one but have fallen to their lowest level in two years.”

[Image Credit: GadgetPhix]

Evidently, McCain views such rules, which would require Internet service providers to treat all Web traffic equally, as “onerous federal regulation” at best and, at worst, another one of those “government takeovers.”

“The [Obama] administration can’t resist imposing regulations on the Internet–particularly since Google Inc. and other Internet content providers were promised the imposition of such regulations as these companies seek to control what consumers see and don’t see on the Internet–despite the fact that these regulations will only serve to hurt consumers,” McCain wrote in an op ed in the Washington Times.

“The wireless industry exploded over the past 20 years, in part due to limited government regulation. Wireless carriers invested $100 billion in infrastructure and development over the past three years, which has led to faster networks, more competitors in the marketplace and lower prices in the United States compared to any other country….Regulation kills innovation. Let’s not kill the Internet.”

McCain, it should be noted, received some $894,379 in contributions from AT&T (T), Verizon (VZ), Comcast (CMCSA) and other telecom industry interests over his career–all of them opposed to the Net neutrality regulations the FCC hopes to implement.

Essentially, Wi-Fi Direct turns supporting devices into access points, allowing them to connect to one another without joining a traditional network. They’ll support typical Wi-Fi ranges and the same data-transfer rates, which in the case of 802.11n is some 30 times faster than the three megabits per second for Bluetooth.

“Wi-Fi Direct represents a leap forward for our industry. Wi-Fi users worldwide will benefit from a single-technology solution to transfer content and share applications quickly and easily among devices, even when a Wi-Fi access point isn’t available,” Wi-Fi Alliance Executive Director Edgar Figueroa said in a statement. “The impact is that Wi-Fi will become even more pervasive and useful for consumers and across the enterprise.”

And Bluetooth inevitably less so. Especially since Wi-Fi Direct will be available as a software upgrade for existing Wi-Fi devices. Why wait around for high-speed Bluetooth, which itself will rely on Wi-Fi for high speed data transfers, when you can use Wi-Fi Direct for your personal area network?

“Recent reports indicate that Google’s Google Voice service restricts calling from consumers to certain rural communities,” the FCC wrote. “We are interested in gathering facts that can provide a more complete understanding of this situation.”

Though Google (GOOG) has until Oct. 28 to file a formal response, the search giant was quick to thump the tub in its defense on its Public Policy Blog. There, Rick Whitt, the company’s telecom and media counsel, argued again that Google Voice is not a traditional phone service and should not be regulated like one.

“Google Voice is not intended to be a replacement for traditional phone service–in fact, you need an existing land or wireless line in order to use it. Importantly, users are still able to make outbound calls on any other phone device,” Whitt wrote. “…AT&T apparently now wants web applications–from Skype to Google Voice–to be treated the same way as traditional phone services. Their approach is what a former FCC chairman has called ‘regulatory capitalism,’ the practice of using regulation to block or slow down innovation. And despite AT&T’s lobbying efforts, this issue has nothing to do with network neutrality or rural America. This is about outdated carrier compensation rules that are fundamentally broken and in need of repair by the FCC.”

“We are very happy that AT&T is now supporting VOIP applications,” said Apple (AAPL) spokeswoman Natalie Kerris. “We will be amending our developer agreements to get VOIP apps on the App Store and in customers’ hands as soon as possible.”

But the new policy hasn’t gone over well with AT&T investors. Shares in the company slipped on the news yesterday and they’re falling still further today. AT&T (T) is trading at $26.21 as I write, down more than two percent from its open. Why? Perhaps due to concerns that the carrier might take a revenue hit when iPhone owners who are using telephony services to make cheap calls switch to low-minute voice plans.

As JP Morgan analyst Mike McCormack notes, voice accounts for $50-$60 of the $95 in monthly revenue generated by the typical iPhone user. If the average user were to drop AT&T’s unlimited voice plan ($99.99/month) in favor of its cheapest ($39.99/month), the carrier could lose upward of 20 percent of voice revenue.

That’s an ugly drop. And while AT&T might offset it by raising its data plan rates, doing so would inevitably outrage customers who are already giving it hell for poor coverage and lousy call quality.

“Integral to this agreement is a commitment by the companies to devote substantial resources to accelerate delivery of leading-edge innovation that will put unique applications in the hands of consumers quickly,” the companies said in a joint release. “The two industry leaders will create, market and distribute products and services, with Verizon Wireless also contributing the breadth of its nationwide distribution channels. Consumers will be able to purchase products resulting from the collaboration in Verizon Wireless retail and online stores.”

The first new phones are expected at market within weeks. Two will be released before the end of the year and they will, according to Verizon Wireless CEO Lowell McAdam, support Google Voice. They’ll also come with Google’s (GOOG) Android Market preinstalled. So Verizon (VZ) is not favoring its own app store here. There will apparently be netbooks as well, though the companies haven’t yet said when.

During a conference call to discuss the announcement, Google CEO Eric Schmidt applauded Verizon’s “openness,” saying it was “frankly, enormously surprising, given the history and the old-line nature of telcos….In Verizon, somehow, the leadership has decided to embrace a very different philosophy, which works very, very well with the Internet.” Schmidt didn’t go into specifics beyond that, but presumably he was referring to Verizon’s willingness to allow Google Voice on its phones–something Apple (AAPL) hasn’t yet done with the iPhone despite continuing controversy.

Asked during the same call if Verizon would allow Google Voice, Verizon Wireless CEO Lowell McAdam said it would. “Either you have an open device or not,” he said. “This will be open.”

The deal is potentially a big one for Google. Verizon serves some 87 million customers. Putting some slick Android phones in front of them could do much to bolster Google’s standing in the wireless market.

You see, Palm (PALM) defines units sold as products sold to on-the-street customers or to resellers like Best Buy (BBY) and Amazon.com (AMZN). Which means that Palm can report a unit sold while it’s still sitting at inventory at various retail outlets. In other words, a Pre sold is not necessarily a Pre activated. As Eller notes, that’s problematic.

“We have been perplexed by a disconnect between PALM’s device units sold and our estimates of store level sell through,” Eller writes. “According to PALM’s reported sell through, inventory increased by 13k units and since the ‘vast majority’ of both the device units shipped and the device units sold were units of the Pre, there couldn’t be an inventory problem. The gap between the two is only 13k.”

Continuing, Eller adds a cautionary note: “However, since the company recognizes revenue on sell in to the channel and the company defines device units sold as units that have been shipped from Sprint (their primary customer) to either customers or second tier distributors, PALM could offer investors a high number of units shipped but still have a glut of inventory in the channel. We believe that channel inventory is currently about 11 weeks, which we believe will pressure reorder rates and make it more difficult to sell high ASP products going forward.”

An 11-week glut of inventory in the channel? If that’s the case, it’s certainly cause for concern, more so because many investors are evidently unaware that this is even a possibility. “[Palm’s definition of sold] does not appear to be understood by investors,” Eller notes. “We polled several of the investors who attended the Boston road show lunch and each was under the impression that sell through translated into customer activations. How can this be?”

Good question. Palm and Sprint (S) investors both might want to pay a bit more attention to Sprint’s 10-k in the future.

I’ve asked Palm for comment and will update this post when it responds.

UPDATE: This just in from Palm:

“The sell-through data we post reflects carriers’ sales to their customers. For example, Sprint customers include consumers who buy in a Sprint store, and Sprint retail partners such as Best Buy and RadioShack. We rely on our wireless carriers to provide us with sell-through data, and we note this fact in our 10Q.”

[Image credit: Flickr/Spintar]

In its study, Interpret identified the key drivers of smart-phone purchasing decisions as influenced by perceptions that the device is, in order of importance:

• Smart (intelligent, adept)
• Cool (hip, trendy)
• Productive (efficient, organized)

The study found that by catering to these drivers in its marketing, Palm (PALM) was able to develop a heightened consumer awareness of the Pre even in a market already crowded with strong brands (see chart below; click to enlarge).

“Consumers intending to purchase a smartphone no longer feel that the iPhone is the only player in the smartphone market,” Interpret concludes, noting that by catering to the need by consumers to feel smart, cool and productive, the Pre is now a player in that space as well.

“It appears the most highly publicized signature smartphones are no longer expected to simply accomplish advanced tasks, but they must also project three key attributes of their owners to others,” the study declares. “Consumers are so pressed to portray these traits that they are demonstrating a willingness to accept phones that accomplish this undertaking at a higher price tag.”

Continuing, Interpret sums up Palm’s approach and the results: “In December, Palm was languishing as an irrelevant smartphone player, but it has now rejuvenated its standing as having a genuine presence in the market. Palm approached the Pre marketing campaign as a combination of smart, productive and cool brand associations….Even though the Pre has not sold millions, its significant role in jumpstarting Palm’s revival has put the brand in a place to expand to different carriers–and increase its market share by developing similar handsets.”

Evidently, Palm is cool again.

“The Internet is an extraordinary platform for innovation, job creation, investment, and opportunity,” Genachowski said during an event at the Brookings Institute. “It has unleashed the potential of entrepreneurs and enabled the launch and growth of small businesses across America. It is vital that we safeguard the free and open Internet.”

To that end, Genachowski proposed that the FCC formalize its four principles of network openness. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled:

• to access the lawful Internet content of their choice.
• to run applications and use services of their choice, subject to the needs of law enforcement.
• to connect their choice of legal devices that do not harm the network.
• to competition among network providers, application and service providers, and content providers.

To these, Genachowski proposed adding two more: The first would prevent Internet access providers from discriminating against particular Internet content or applications, while allowing for reasonable network management. The second would ensure that Internet access providers are transparent about the network management practices they implement.

Under Genachowski’s proposal, all six principles would apple to all platforms that access the Internet, something that will likely prove controversial with the likes of AT&T (T) and Verizon (VZ), whose wireless operations haven’t yet been subjected to the same kind of scrutiny as, say, Comcast (CMCSA), which ran afoul of the FCC last year when it was caught throttling Bit Torrent traffic.

These companies will no doubt argue that the FCC is overstepping its bounds in working to implement such principles. But Genachowski says that’s not the case. “This is not about government regulation of the Internet,” he said. “It’s about fair rules of the road for companies that control access to the Internet.”

Below, Genachowski’s speech in full:

Preserving a Free and Open Internet: A Platform for Innovation, Opportunity, and Prosperity
Prepared Remarks of Chairman Julius Genachowski Federal Communications Commission
The Brookings Institution
Washington, DC
September 21, 2009

I’d like to thank Brookings for hosting me and this discussion about the future of broadband and the Internet.

We’ve just finished a summer of big-ticket commemorations, celebrating the 40th anniversaries of the Apollo landing and of Woodstock; 1969 was also a good year to be a kid in New York, with Joe Namath calling the Super Bowl, and the Knicks’ season that ended with the legendary Willis Reed in Game 7. I grew up a long fly ball from Shea Stadium and soaked up every minute of the Miracle Mets’ season. Maybe that’s why I tend to believe in miracles.

But perhaps the most momentous birthday from that famous summer of 1969 went by just a couple of weeks ago with little mention. Just over forty years ago, a handful of engineers in a UCLA lab connected two computers with a 15-foot gray cable and transferred little pieces of data back and forth. It was the first successful test of the ARPANET, the U.S.-government-funded project that became the Internet–the most transformational communications breakthrough since the printing press.

Today, we can’t imagine what our lives would be like without the Internet–any more than we can imagine life without running water or the light bulb. Millions of us depend upon it every day: at home, at work, in school–and everywhere in between. The Internet has unleashed the creative genius of countless entrepreneurs and has enabled the creation of jobs–and the launch of small businesses and the expansion of large ones–all across America.

That’s why Congress and the President have charged the FCC with developing a National Broadband Plan to ensure that every American has access to open and robust broadband. The fact is that we face great challenges as a nation right now, including health care, education, energy, and public safety. While the Internet alone will not provide a complete solution to any of them, it can and must play a critical role in solving each one.

Why has the Internet proved to be such a powerful engine for creativity, innovation, and economic growth? A big part of the answer traces back to one key decision by the Internet’s original architects: to make the Internet an open system.

Historian John Naughton describes the Internet as an attempt to answer the following question: How do you design a network that is “future proof”–that can support the applications that today’s inventors have not yet dreamed of? The solution was to devise a network of networks that would not be biased in favor of any particular application. The Internet’s creators didn’t want the network architecture–or any single entity–to pick winners and losers. Because it might pick the wrong ones. Instead, the Internet’s open architecture pushes decision-making and intelligence to the edge of the network–to end users, to the cloud, to businesses of every size and in every sector of the economy, to creators and speakers across the country and around the globe. In the words of Tim Berners-Lee, the Internet is a “blank canvas”–allowing anyone to contribute and to innovate without permission.

It is easy to look at today’s Internet giants–and the tremendous benefits they have supplied to our economy and our culture–and forget that many were small businesses just a few years ago, founded on little more than a good idea and a no-frills connection to the Internet. Marc Andreessen was a graduate student when he created Mosaic, which led to Netscape, the first commercially successful Web browser. Mark Zuckerberg was a college student in 2004 when he started Facebook, which just announced that it added its 300 millionth member. Pierre Omidyar originally launched eBay on his own personal website. Today more than 600,000 Americans earn part of their living by operating small businesses on eBay’s auction platform, bringing jobs and opportunity to Danvers, Massachusetts, Durham, North Carolina and Lincoln, Nebraska, and many other communities in both rural and urban America. This is the power of the Internet: distributed innovation and ubiquitous entrepreneurship, the potential for jobs and opportunity everywhere there is broadband.

And let us not forget that the open Internet enables much more than commerce. It is also an unprecedented platform for speech, democratic engagement, and a culture that prizes creative new ways of approaching old problems. In 2000, Jimmy Wales started a project to create a free online encyclopedia. He originally commissioned experts to write the entries, but the project only succeeded after moving to volunteers to write them collaboratively. The result is Wikipedia, one of the top 10 most visited websites in the world and one of the most comprehensive aggregations of human knowledge in our history. The potential of collaboration and social media continues to grow. It is changing and accelerating innovation. And we’ve seen new media tools like Twitter and YouTube used by democratic movements around the globe.

Even now, the Internet is beginning to transform health care, education, and energy usage for the better. Health-related applications, distributed over a widely connected Internet, can help bring down health care costs and improve medical service. Four out of five Americans who are online have accessed medical information over the Internet, and most say this information affected their decision-making. Nearly four million college students took at least one online course in 2007, and the Internet can potentially connect kids anywhere to the best information and teachers everywhere. And the Internet is helping enable smart grid technologies, which promise to reduce carbon dioxide emissions by hundreds of millions of metric tons.

At the same time, we have also seen great strides in the center of the network. Most Americans’ early exposure to the Internet was through analog modems, which allowed a trickle of data through the phone lines to support early electronic bulletin boards and basic email. Over the last two decades, thanks to substantial investment and technological ingenuity, companies devised ways to retrofit networks initially designed for phones and one-way video to support two-way broadband data streams connecting homes and businesses across the country. And a revolution in wireless technologies–using licensed and unlicensed spectrum–and the creation of path-breaking devices like the Blackberry and iPhone have enabled millions of us to carry the Internet in our pockets and purses.

The lesson of each of these stories, and innumerable others like them, is that we cannot know what tomorrow holds on the Internet, except that it will be unexpected; that the genius of American innovators is unlimited; and that the fewer obstacles these innovators face in bringing their work to the world, the greater our opportunity as citizens and as a nation.

Notwithstanding its unparalleled record of success, today the free and open Internet faces emerging and substantial challenges. We’ve already seen some clear examples of deviations from the Internet’s historic openness. We have witnessed certain broadband providers unilaterally block access to VoIP applications (phone calls delivered over data networks) and implement technical measures that degrade the performance of peer-to-peer software distributing lawful content. We have even seen at least one service provider deny users access to political content. And as many members of the Internet community and key Congressional leaders have noted, there are compelling reasons to be concerned about the future of openness.

One reason has to do with limited competition among service providers. As American consumers make the shift from dial-up to broadband, their choice of providers has narrowed substantially. I don’t intend that remark as a policy conclusion or criticism–it is simply a fact about today’s marketplace that we must acknowledge and incorporate into our policymaking.

A second reason involves the economic incentives of broadband providers. The great majority of companies that operate our nation’s broadband pipes rely upon revenue from selling phone service, cable TV subscriptions, or both. These services increasingly compete with voice and video products provided over the Internet. The net result is that broadband providers’ rational bottom-line interests may diverge from the broad interests of consumers in competition and choice.

The third reason involves the explosion of traffic on the Internet. With the growing popularity of high-bandwidth applications, Internet traffic is roughly doubling every two years. Technologies for managing broadband networks have become more sophisticated and widely deployed. But these technologies are just tools. They cannot by themselves determine the right answers to difficult policy questions–and they raise their own set of new questions.

In acknowledging the existence of challenging competitive, economic, and technological realities for today’s Internet, I want to underscore that this debate, as I see it, isn’t about white hats or black hats among companies in and around the network. Rather, there are inevitable tensions built into our system; important and difficult questions that we have an obligation to ask and to answer correctly for our country.

When I worked in the private sector I was fortunate to work with some of the greatest innovators of our time. That taught me some lessons about the importance of innovation and investment. It also taught me the importance of developing clear goals and then being focused and practical in achieving them, making sure to have the best input and ideas from the broadest group possible.

I am convinced that there are few goals more essential in the communications landscape than preserving and maintaining an open and robust Internet. I also know that achieving this goal will take an approach that is smart about technology, smart about markets, smart about law and policy, and smart about the lessons of history.

The rise of serious challenges to the free and open Internet puts us at a crossroads. We could see the Internet’s doors shut to entrepreneurs, the spirit of innovation stifled, a full and free flow of information compromised. Or we could take steps to preserve Internet openness, helping ensure a future of opportunity, innovation, and a vibrant marketplace of ideas.
I understand the Internet is a dynamic network and that technology continues to grow and evolve. I recognize that if we were to create unduly detailed rules that attempted to address every possible assault on openness, such rules would become outdated quickly. But the fact that the Internet is evolving rapidly does not mean we can, or should, abandon the underlying values fostered by an open network, or the important goal of setting rules of the road to protect the free and open Internet.

Saying nothing–and doing nothing–would impose its own form of unacceptable cost. It would deprive innovators and investors of confidence that the free and open Internet we depend upon today will still be here tomorrow. It would deny the benefits of predictable rules of the road to all players in the Internet ecosystem. And it would be a dangerous retreat from the core principle of openness–the freedom to innovate without permission–that has been a hallmark of the Internet since its inception, and has made it so stunningly successful as a platform for innovation, opportunity, and prosperity.

In view of these challenges and opportunities, and because it is vital that the Internet continue to be an engine of innovation, economic growth, competition and democratic engagement, I believe the FCC must be a smart cop on the beat preserving a free and open Internet.

This is how I propose we move forward: To date, the Federal Communications Commission has addressed these issues by announcing four Internet principles that guide our case-by-case enforcement of the communications laws. These principles can be summarized as: Network operators cannot prevent users from accessing the lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.

The principles were initially articulated by Chairman Michael Powell in 2004 as the “Four Freedoms,” and later endorsed in a unanimous 2005 policy statement issued by the Commission under Chairman Kevin Martin and with the forceful support of Commissioner Michael Copps, who of course remains on the Commission today. In the years since 2005, the Internet has continued to evolve and the FCC has issued a number of important decisions involving openness. Today, I propose that the FCC adopt the existing principles as Commission rules, along with two additional principles that reflect the evolution of the Internet and that are essential to ensuring its continued openness.

The fifth principle is one of non-discrimination–stating that broadband providers cannot discriminate against particular Internet content or applications. This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers’ homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed.

This principle will not prevent broadband providers from reasonably managing their networks. During periods of network congestion, for example, it may be appropriate for providers to ensure that very heavy users do not crowd out everyone else. And this principle will not constrain efforts to ensure a safe, secure, and spam-free Internet experience, or to enforce the law. It is vital that illegal conduct be curtailed on the Internet. As I said in my Senate confirmation hearing, open Internet principles apply only to lawful content, services and applications–not to activities like unlawful distribution of copyrighted works, which has serious economic consequences. The enforcement of copyright and other laws and the obligations of network openness can and must co-exist.

I also recognize that there may be benefits to innovation and investment of broadband providers offering managed services in limited circumstances. These services are different than traditional broadband Internet access, and some have argued they should be analyzed under a different framework. I believe such services can supplement–but must not supplant–free and open Internet access, and that we must ensure that ample bandwidth exists for all Internet users and innovators. In the rulemaking process I will discuss in a moment, we will carefully consider how to approach the question of managed services in a way that maximizes the innovation and investment necessary for a robust and thriving Internet.

I will propose that the FCC evaluate alleged violations of the non-discrimination principle as they arise, on a case-by-case basis, recognizing that the Internet is an extraordinarily complex and dynamic system. This approach, within the framework I am proposing today, will allow the Commission to make reasoned, fact-based determinations based on the Internet before it–not based on the Internet of years past or guesses about how the Internet will evolve.

The sixth principle is a transparency principle–stating that providers of broadband Internet access must be transparent about their network management practices. Why does the FCC need to adopt this principle? The Internet evolved through open standards. It was conceived as a tool whose user manual would be free and available to all. But new network management practices and technologies challenge this original understanding. Today, broadband providers have the technical ability to change how the Internet works for millions of users–with profound consequences for those users and content, application, and service providers around the world.

To take one example, last year the FCC ruled on the blocking of peer-to-peer transmissions by a cable broadband provider. The blocking was initially implemented with no notice to subscribers or the public. It was discovered only after an engineer and hobbyist living in Oregon realized that his attempts to share public domain recordings of old barbershop quartet songs over a home Internet connection were being frustrated. It was not until he brought the problem to the attention of the media and Internet community, which then brought it to the attention of the FCC, that the improper network management practice became known and was stopped.

We cannot afford to rely on happenstance for consumers, businesses, and policymakers to learn about changes to the basic functioning of the Internet. Greater transparency will give consumers the confidence of knowing that they’re getting the service they’ve paid for, enable innovators to make their offerings work effectively over the Internet, and allow policymakers to ensure that broadband providers are preserving the Internet as a level playing field. It will also help facilitate discussion among all the participants in the Internet ecosystem, which can reduce the need for government involvement in network management disagreements.

To be clear, the transparency principle will not require broadband providers to disclose personal information about subscribers or information that might compromise the security of the network, and there will be a mechanism to protect competitively sensitive data.

In considering the openness of the Internet, it is also important to recognize that our choice of technologies and devices for accessing the Internet continues to expand at a dizzying pace. New mobile and satellite broadband networks are getting faster every day, and extraordinary devices like smartphones and wireless data cards are making it easier to stay connected while on the go. And I note the beginnings of a trend towards openness among several participants in the mobile marketplace.

Even though each form of Internet access has unique technical characteristics, they are all are different roads to the same place. It is essential that the Internet itself remain open, however users reach it. The principles I’ve been speaking about apply to the Internet however accessed, and I will ask my fellow Commissioners to join me in confirming this.

Of course, how the principles apply may differ depending on the access platform or technology. The rulemaking process will enable the Commission to analyze fully the implications of the principles for mobile network architectures and practices–and how, as a practical matter, they can be fairly and appropriately implemented. As we tackle these complex questions involving different technologies used for Internet access, let me be clear that we will be focused on formulating policies that will maximize innovation and investment, consumer choice, and greater competition.

I’ve talked about what we need to do; now I’d like to talk about how we should do it. I will soon circulate to my fellow Commissioners proposed rules prepared by Commission staff embodying the principles I’ve discussed, and I will ask for their support in issuing a notice of proposed rulemaking. This notice will provide the public with a detailed explanation of what we propose to do and why.

Equally importantly, the notice will ask for input and feedback on the proposed rules and their application, such as how to determine whether network management practices are reasonable, and what information broadband providers should disclose about their network management practices and in what form. And–as I indicated earlier–it will pose a series of detailed questions on how the Internet openness principles should apply to mobile broadband.

While my goals are clear–to ensure the Internet remains a free and open platform that promotes innovation, investment, competition, and users’ interests — our path to implementing them is not pre-determined. I will ensure that the rulemaking process will be fair, transparent, fact-based, and data-driven. Anyone will be able to participate in this process, and I hope everyone will. We will hold a number of public workshops and, of course, use the Internet and other new media tools to facilitate participation. Today we’ve launched a new website, www.openinternet.gov, to kick off discussion of the issues I’ve been talking about. We encourage everyone to visit the site and contribute to the process.

Some have argued that the FCC should not take affirmative steps to protect the Internet’s openness. Let me be clear about what this is about, and what it isn’t.

The fundamental goal of what I’ve outlined today is preserving the openness and freedom of the Internet. We have an obligation to ensure that the Internet is an enduring engine for U.S. economic growth, and a foundation for democracy in the 21st century. We have an obligation to ensure that the Internet remains a vast landscape of innovation and opportunity.

This is not about government regulation of the Internet. It’s about fair rules of the road for companies that control access to the Internet. We will do as much as we need to do, and no more, to ensure that the Internet remains an unfettered platform for competition, creativity, and entrepreneurial activity.

This is not about protecting the Internet against imaginary dangers. We’re seeing the breaks and cracks emerge, and they threaten to change the Internet’s fundamental architecture of openness. This would shrink opportunities for innovators, content creators, and small businesses around the country, and limit the full and free expression the Internet promises. This is about preserving and maintaining something profoundly successful and ensuring that it’s not distorted or undermined. If we wait too long to preserve a free and open Internet, it will be too late.

Some will seek to invoke innovation and investment as reasons not to adopt open Internet rules. But history’s lesson is clear: Ensuring a robust and open Internet is the best thing we can do to promote investment and innovation. And while there are some who see every policy decision as either pro-business or pro-consumer, I reject that approach; it’s not the right way to see technology’s role in America.

An open Internet will benefit both consumers and businesses. The principles that will protect the open Internet are an essential step to maximize investment and innovation in the network and on the edge of it–by establishing rules of the road that incentivize competition, empower entrepreneurs, and grow the economic pie to the benefit of all.

I believe we share a common purpose–we want the Internet to continue flourishing as a platform for innovation and communication, with continued investment and increasing deployment of broadband to all Americans. I believe my fellow Commissioners share this purpose, and I look forward to working collaboratively with them in this endeavor.

In closing, we are here because 40 years ago, a bunch of researchers in a lab changed the way computers interact and, as a result, changed the world. We are here because those Internet pioneers had unique insights about the power of open networks to transform lives for the better, and they did something about it. Our work now is to preserve the brilliance of what they contributed to our country and the world. It’s to make sure that, in the 21st century, the garage, the basement, and the dorm room remain places where innovators can not only dream but bring their dreams to life. And no one should be neutral about that.

“A study conducted by Microsoft Research shows that consumers can process results with images 20% faster than text only results,” Microsoft’s Todd Schwartz explained. “So it’s clear that images play a big part in helping consumers with a variety of search activities….Visual Search allows you to quickly scroll through the galleries or do a one-click refinement using the quick tabs on the left, which are specifically relevant to the type of results you are browsing through.”

Think of Microsoft’s innovation as iTunes Cover Flow for search. And though it currently works only for mainstream queries (celebrities, dog breeds, iPhone apps, FBI’s Most Wanted, etc.) it’s quite impressive. And if Microsoft (MSFT) works quickly to extend it beyond its currently limited purview, Visual Search could do much to differentiate Bing from Google (GOOG). Certainly, Google doesn’t offer anything quite like it at the moment.

It’s going to be a rough couple of months for the wireless industry.

As expected, the Federal Communications Commission on Thursday approved a broad inquiry into the wireless market. In a unanimous vote, the agency’s five commissioners–three Democrats and two Republicans–approved two so-called notices of inquiry, one that will examine competition and innovation and another that will evaluate truth-in-billing practices.

“I can’t think of a more important moment to be considering these issues,” FCC chairman Julius Genachowski told a hearing in Washington. “Many Americans are learning to do more with less. A surprise charge on a monthly bill, or a new service that does not perform as advertised, can be a major budget-buster, especially as household spending on communications grows ever larger. This FCC will have a relentless focus on innovation and investment, on competition and consumers.”

Genachowski added that these inquiries could lay the groundwork for the examination of other industries such as cable and Internet. “I hope the new wireless competition report will help set a standard for fact-based, analytically deep analysis of the mobile industry,” he said. “It is essential that the commission develop policies that encourage a new generation of innovators, working with new tools, on new platforms, and having an extraordinary impact on our economy and society.”

The wireless industry’s trade group, CTIA, welcomed the inquiry through gritted teeth, saying it “appreciates the opportunity to respond” to the FCC’s questions. “The wireless ecosystem–from carriers to handset manufacturers to network providers to operating-system providers to application developers–is evolving before our eyes and this is not the same market that it was even three years ago,” said president and chief executive Steve Largent. “In this industry, innovation is everywhere.”