The Myth of Existing Net Neutrality
The debate over net neutrality is not about whether an open Internet is good or bad. In terms of free expression and our imagined “marketplace of ideas,” an equal-access network would be very nice. If there were enough bandwidth for every appetite and application, and if broadband service providers could decide on and disclose actual speeds and contractual limitations on bandwidth use, net neutrality just might work. But bandwidth is finite. And ISPs will lose subscribers if they are too upfront about their limited capabilities. So, the argument over feared worst-case scenarios continues.
Net neutrality in the United States does not exist today. There are reports of Comcast and other ISPs throttling BitTorrent users as early as 2005. That means the past five years (at least) of Internet growth have happened while ISPs have been doing exactly what we fear most: deciding for us what type of service we can access. On the other hand, ISPs and content providers have been filtering our Internet experience in ways that most users prefer: think spam blocking or Google’s “safe search.”
The problem with the current discussion is that it fails to address this balance. Most consumers want some traffic shaping, some of the time. Most ISPs have to limit some bandwidth hogs, sometimes, to sustain their business. Yet our government is tasked with protecting us from service providers’ unbridled greed and anticompetitive intent. This protection comes in the form of regulation, even if that regulation is simply to tell service providers to be “reasonable” or “fair.” Even such vague standards of public interest allow the government to impose some type of sanctions if service providers are wildly out of line.
The issue now is if and how the federal government will intervene, hopefully to dictate some reasonable balance.
Snails Racing for Reform
To end the now-ideological net neutrality debate, we’re left looking to two players who are generally slow and ineffective when it comes to dealing with immediate technology problems: Congress and the FCC. So far, Congress doesn’t seem to have a plan, though Google and Verizon have kindly provided a self-protecting regulatory framework in case lawmakers need a little help. The FCC has scrambled since April, when the D.C. Circuit delivered a no-nonsense administrative law smack-down that dialed back the FCC’s ability to stop network discrimination. A possible solution to the regulatory void created by the Comcast decision is FCC General Counsel Austin Schlick’s “Third Way” proposal [pdf], which, at its core, would reclassify broadband Internet as a telecommunications service rather than an information service, opening the content-cum-service providers to the specter of common carrier status, subject to heightened regulation by the FCC.
Without diving into an explanation of the Third Way and how it may or may not fly, the FCC might be on shaky legal ground if it reclassifies broadband by declaratory order rather than through rulemaking proceedings. As the CTIA points out in its comments to the FCC in opposition of regulation [pdf], reclassification of broadband from one regulatory regime to another is not the kind of mere statutory clarification for which the courts have approved declaratory action. Rather, the Administrative Procedure Act, and even a relatively generous interpretation of the Supreme Court’s seminal administrative law Chevron opinion, would likely require notice and comment rulemaking proceedings (like it did for initial classification of wireline broadband), by which the FCC can explain its change of course.
Should Wireless Be Different?
Much hubbub arose from Google and Verizon’s agreement that any legislated net neutrality rules should not include regulation of wireless services. What seems to be lacking from the lay commentary on this issue is the fact that wireline and wireless services are fundamentally different, from the FCC’s perspective. Wireless services require licensed spectrum to operate, and those licenses aren’t exactly easy or cheap to obtain. Because consumers have started using wireless broadband service to do the same things they do over wireline service, it’s difficult in that sense to justify disparate regulation. But the rules are different, and Congress has demanded that the FCC try to “reduce the regulatory burden” on wireless service providers, while subjecting them to limited common carrier regulations. So no matter if it makes sense today, the FCC’s starting point might have to be regulating wireless and wireline broadband differently.