Phil Baker wrote this editorial at the San Diego Daily Transcript on “Keeping the Internet open” in which he misrepresented the debate on Net Neutrality.  Baker repeated the myth that opponents to Internet regulation are fighting for the ability of ISPs to block websites and operate discriminatory (in the bad sense) services.  An edited print version of my rebuttal was published here, but the print format lacked the hyperlink references in my original rebuttal so I have posted my original version below with all the links intact.

An accurate debate on Internet regulation

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Phil Baker wrote this editorial on “Keeping the Internet open” in which he rightly pointed out the importance of the debate on new “Net Neutrality” regulations being proposed by the Federal Communications Commission (FCC).  But Baker’s editorial completely misrepresented the debate by getting so many facts wrong and inaccurately framing the arguments.  If we are going to get the regulation of one of the most important sectors of our economy right, then it had better be fact based.

Part of the problem in Phil Baker’s post is the limited and inaccurate viewpoint he obtained.  He cited Yale Law Professor Jack M. Balkin who stated:

“The phone and cable companies (ISPs) want to be in charge of the Internet; they want to be able to block user requests, charge software companies and Web sites discriminatory prices to reach users, and even cut exclusive deals … Essentially, they want no rules.”

But that is completely inaccurate since no ISP or critic of heavy handed Internet regulation is arguing in favor of permitting content or service blocking (of legal content or services) or the right to cut exclusive deals, the ISPs want to offer their services to anyone.  The only ISP that blocked a service was Madison River Communications blocking Vonage’s VoIP telephone service in 2005, but that practice was quickly brought to an end by the FCC which also fined Madison River $15,000.

Baker bought into Balkin’s characterization of ISPs when he stated:

“The ISPs contend that they have the right to block certain content and regulate others, because preventing them from doing so, and therefore maximizing profits, violates their First Amendment rights to make a profit.”

But again this is completely inaccurate.  ISPs like Verizon and AT&T have actually stated that they are fine with anti-discriminatory regulations so long as they respect the ability of ISPs to conduct business and to offer enhanced services to anyone willing to pay for the service.  National Cable & Telecommunications Associations (NCTA) CEO Kyle McSlarrow argued that it is the first amendment right of the ISPs to offer speech enhancing services and the first amendment right of content and application providers to purchase these enhanced services.

This reason this is being debated is because the non-discrimination clause in paragraph 106 of the FCC’s proposed NPRM would prohibit ISPs from offering any kind of “enhanced or prioritized” services to Content, Application, or Service (CAS) providers.  The exact scope of the banned services and the type of “providers” that fall under this blanket prohibition is deliberately vague and open ended and it can harm small content providers if Paid Peering is outlawed, but the more fundamental problem lies in the fact that this is a blanket prohibition.  The Cable and Telephone companies that have spoken on this issue don’t oppose prohibitions on discriminatory services, they oppose the proposed FCC regulations that prohibition of all enhance performance services even if they are nondiscriminatory.  So Baker and Balkin gets this exactly backwards.  ISP’s don’t want the right to block free speech; they want the right to offer more services that enable more of it.  It is these proposed Net Neutrality regulations that threaten to eliminate these new choices for innovators.

These heavy handed regulations are precisely what the extreme Net Neutrality proponents have always wanted because they have this utopian idea that the Internet is supposed to grant equal capability to all content and application providers regardless of what they pay to connect to the Internet.  Larry Lessig in 2006 testified to Congress against fee-based priority services because they would have only been affordable to the big companies.  Free Press opposes any enhanced services because it allows the ISPs to “control the Internet by picking winners and losers in a pay-for-play scheme”.  The ACLU argued that these enhanced service limit the free speech of those who can’t pay.  What these groups and individuals are arguing is that the mere requirement of a fee, even if it’s offered in an open and nondiscriminatory manner constitutes discrimination.  But that goes against the fundamental notion of freedom and rights in this nation because everyone has a right to speak, but no one else is obligated to carry and distribute that speech at no cost.

The reality is that the Internet has never granted equal capability regardless of the ability to pay.  Can anyone seriously argue that a $50/month web hosting service should have the same capability as Google’s billion dollars per year infrastructure?  It’s quite obvious that Google is more powerful than just about any other content provider on the Internet and even more powerful than many ISPs because Google owns one of the largest private Internet bypass networks and data centers in the world.  Yet Google is advocating FCC regulations that would limit the ability of ISPs to offer enhanced nondiscriminatory content and application distribution services but not Internet giants like Google.  Google is effectively lobbying for a vast new set of Internet regulations that would eliminate some of their key competitors in the content and application distribution business, and that would reduce competition in that space.

Some tangential issues in Phil Baker’s editorial

Phil Baker also inaccurately stated that Comcast slowed down sites when Comcast never slowed any websites.  Baker was probably alluding to the Vuze versus Comcast complaint before the FCC where Vuze accused Comcast of blocking the Vuze service.  The FCC disapproved of the way Comcast pruned the large number of upstream BitTorrent connections that peer-to-peer (P2P) users made and Comcast was forced to switch to a “protocol agnostic” system that deprioritized the heaviest users instead of targeting individual protocols like BitTorrent.  The irony of it all is that Comcast’s old system had far less of an impact on BitTorrent and the Vuze service than the new Comcast network management system which more fairly distributes bandwidth between users.

Phil Baker also made the inaccurate claim that AT&T was involved in blocking Google’s Voice Application on the iPhone, but both AT&T and Apple have testified to the FCC that it was Apple’s decision alone to turn down the Google Voice App on the iPhone.  Furthermore, Google Voice was never blocked on AT&T’s network and it was the application that Apple rejected.  Apple explained that they did not like the way that the Google Voice App replaced Apple’s functionality and look and feel on the iPhone.  This increased competitive friction between Apple and Google is consistent with Google’s CEO Eric Schmit recent resignation from Apple’s Board of Directors.  It is also ironic that a large and powerful company like Google would complain about Apple blocking the Google Voice App from the iPhone when Google blocks small companies like Syabas from accessing YouTube by changing terms and demanding multi-million dollar advertising deals.