The Federal Communications Commission has reinvigorated the "net neutrality" debate with its approval today of new rules governing Internet access. (The actual rules have yet to be released to the public.) Reportedly, the broadband companies that drop wires into your home to provide Internet service—like Comcast and Charter, for example—will be prohibited from blocking services and applications and from engaging in the "unreasonable discrimination" of data delivery. Wireless Internet providers will face less stringent rules.
Does the FCC have the power to issue such dictates? A federal court ruled 3-0 last May that the commission had overstepped its authority when it told Comcast not to slow file-sharing-network traffic to users, so its powers are in question. Both the Washington Postand New York Times predict a future court date for the new rules. The Post calls it likely that the Republican-controlled House of Representatives will also attempt to gut the rules.
The FCC's sense of urgency may befuddle you. After all, the many-colored, hydra-headed, and infernally useful beast that is the U.S. Internet came into being without government demands and decrees. Without commandments from the FCC or anybody else, American broadband companies invested tens of billions of dollars to create an Internet infrastructure for their customers.
The FCC is not motivated by any screwing the broadband companies have given customers. Even the throttling of Comcast customers' file-sharing connection can be interpreted as pro-consumer if it was initiated to prevent one set of users from hogging bandwidth to the detriment of others. What grieves the FCC is the screwing the broadband industry might deliver. FCC Chairman Julius Genachowski said as much in his prepared remarks, in which he decried the lack of enforceable rules, processes, and means of recourse for citizens seeking to protect Internet innovators, consumers, and speakers. He speaks of wanting to keep the Internet free and open, but he's silent on exactly what grand sins the Internet industry has committed.
The best Genachowski can come up with is the "leverage" existing broadband providers have over innovators and new entrepreneurs. Like the characters in Philip K. Dick's short story "The Minority Report," Internet providers are guilty of pre-crimes, i.e., crimes that the FCC thinks they're destined to commit, and should be shackled before they can actually commit them.
Please, don't take me for a corporate apologist: I would punch my Internet provider, Comcast, in the face for its lies, poor service, and general hamfistedness if it had a face to punch. And from what I can tell from my neighbors' experience, I'd throw the same punch at Verizon if I had a Fios account. The broadband companies are not angels. But before we lock them up, clip their wings, and blind them, we might want to demand a little more proof of their wrongdoing.
In a critique of the FCC plan published by the Atlantictoday, scholars David J. Farber and Gerald R. Faulhaber surmise that the commission wants to prohibit Internet providers from charging for the expedited delivery of bits and bytes. But why should they be barred from setting a premium price to fast-track for Google or Netflix, the authors complain, when the U.S. Postal Service does just that with express-mail delivery.
Indeed, why should it be the feds' business if Comcast—which is in the video-delivery business—demands a premium from other video-streaming companies, such as Google and Netflix, for access to the pipes it built? Allowing the government to dictate those terms is tantamount to resurrecting the Interstate Commerce Commission and vesting in it the power to tell Federal Express what prices to charge for delivering packages.
Would any of the companies currently in the broadband game have built their systems without the expectation that they could "leverage" their investment? I doubt it. Do they lust for an Internet environment that imprisons us in their "walled garden" and bleeds us for every penny during our stay? Of course they do. But then why—in the absence of FCC regulatory powers to ban such Internet land-grabs—haven't the broadband providers erected such walled gardens? Because 1) they face competition from another broadband provider and don't want to give their customers an incentive to leave, or 2) where they're the only broadband provider, they tend not to want to give a potential competitor encouragement to enter their market.
Even the staunchest net neutrality advocate will concede that net neutrality is a fuzzy concept. No network can be purely neutral. If the current Internet didn't prioritize some traffic at the expense of other traffic, the whole enterprise would grind to a halt like Manhattan's streets when the stoplights stop working.
So the basic question here is who will set the Internet's priorities, the government or the providers. That I have an innate distrust for government should surprise no regular readers. Traditionally, the state censors and marginalizes voices while private businesses tend to remain tolerant. Even at the height of the rebellions of the 1960s and early 1970s, political radicals and social radicals could always find printers to publish their most sordid, seditious, and sensational material. But that's only because there was no FCC control over who could own and operate a printing press, no control over what prices they could charge for their services, and no state commandment that they had to accept any print job. The only times the FCC has spurred debate and commentary have been when it has stepped out of the way.
If the FCC is as keen about encouraging Internet innovation and entrepreneurship and forestalling censorship as its chairman claims to be, there is a smarter policy framework to pursue. First, the FCC should avoid cementing the current broadband monopolies and duopolies into place by encouraging new entrants. One way to encourage new land-based Internet providers would be to replace municipal- and state-franchise laws, which extract concessions and cash from cable systems and telephone companies for the right to string line, with a federal-franchise system that simplifies the process—and can't shake the new entrants down or otherwise impede them.
On the wireless side, the FCC would be wiser to continue on the course it set a few years ago by easing the reallocation of spectrum originally given to television to mobile broadband. That earlier reallocation made possible the wireless Internet provider Clearwire, which is just rolling out in many places in the country. Additional spectrum deregulation would help create more competition. For instance, if TV stations want to exit the TV business and repurpose their spectrum to Internet service, the FCC should step off.
While I dread the hassles and unintended consequences of corporate control of the Internet, I dread the intended consequences of a controlling FCC much, much more.
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