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Net Neutrality — Just the Facts, Please

By 21 September 2010 2 Comments

A problem with the debate over Net Neutrality is its continuing focus on high level abstractions, not on specific practices and their consequences. The latest exhibit is the FCC’s Sept. 01, 2010, pronouncement, Further Inquiry into Two Under-Developed Issues in the Open Internet Proceeding.

The notice tells interested parties that the FCC will adopt five principles for the Internet (well, actually it says that “the discussion generated by the . . . proceeding appears to have narrowed disagreement on many key elements of the framework proposed,” but to anyone fluent in the language of RegSpeak, this means “we’re gonna do it, so shut up”). Of course, whether the agency has the authority to adopt the principles is an interesting and open question, but agencies seldom decide that they cannot do something, and politically it is probably easier for the FCC to cobble together an argument and let a court tell it “no” than to abnegate its power.

The framework includes the four principles originally enunciated during the Michael Powell era, which were/are:

  • Users should have access to lawful content, apps, and devices of their choice;
  • Management practices should be transparent;
  • “Some form” of non-discrimination is appropriate on fixed and wireline platforms;
  • ISPs must be able to manage their networks, including an ability to address congestion and to address spam and harmful traffic.

The fifth part of the framework is that “in light of rapid technological and market change, enforcing high-level rules of the road through case-by-case adjudication, informed by engineering expertise, is a better policy approach than promulgating detailed, prescriptive rules that may have consequences that are difficult to foresee.”

Then the notice says that “two complex issues . . . merit further inquiry”:  “[T]he relationship between open Internet protections and services that are provided over the same last-mile facilities as broadband Internet access service (commonly called ‘managed’ or ‘specialized’ services) . . . [and] the application of open Internet rules to mobile wireless Internet access services, which have unique characteristics related to technology, associated application and device markets, and consumer usage.”

These two areas are addressed in turn. For specialized services, three “areas of concern” are identified, then six different possible policy approaches, but with no examples for any of any of them, and no discussion as to how they might interact, or of what policy approach might be applicable to what specific problem in one of the areas.

For wireless, the FCC’s discussion is totally open-ended. For example:

We seek comment on how best to maximize consumer choice, innovation, and freedom of expression in the mobile application space, while ensuring continued private investment and competition in mobile wireless broadband services. To what extent should mobile wireless providers be permitted to prevent or restrict the distribution or use of types of applications that may intensively use network capacity, or that cause other network management challenges? Is the use of reasonable network management sufficient, by itself or in combination with usage-based pricing, to address such concerns? Should mobile wireless providers have less discretion with respect to applications that compete with services the provider offers? How should the ability of developers to load software applications onto devices for development or prototyping purposes be protected?

Well, yes, these are rather the questions, aren’t they? For wireline services, they have been the questions for many years and through tens of thousands of pages of comments, so it seems a tad odd that the FCC is just now getting around to considering them for wireless, and even odder that it seems to be starting at square one, as if the issues were all brand new.

The questions are also so open-ended as to be meaningless. The discussion revolves around vague entities called providers, or application writers, or users. But these have no physical characteristics, so the universe of possibilities is infinite, and so are the arguments that can be made in either direction.

The FCC needs a good dose of legal education’s case system, where one starts from a fact pattern and then reasons to a principle, tries out the principle on the next fact pattern and perhaps revises it, and so on. No matter how many criticisms of legal education one makes, and no matter how many lawyer jokes, the discipline imposed by focus on the facts keeps people from floating off into the stratospheres of abstraction.

So I suggest the FCC solicit comments of a different sort. It should solicit suggestions as to specific types of provider conduct which might be of concern. For example:

  • See the story in last week in Business Insider: “Skyhook says that Google effectively forced Motorola to cancel a deal with Skyhook in which Skyhook would have provided location-based services in Motorola phones — because Google wanted Motorola to use Google’s own location services instead.” Leaving aside such details as whether the FCC has any authority over any of the companies, would this be acceptable?
  • What about the tale told in TechCrunch this morning about ChaCha’s view that T-Mobile is discriminating against it by charging for text messaging when it is not charging others, such as Facebook or Twitter – what is the complete story, and what would the FCC think about it under its “case-by-case” approach?
  • What does the agency think about Skype and other VoIP services that are in essence arbitraging the regulatory system, using Internet packets to underprice  the ordinary telephone services that are subject to all sorts of financial burdens?
  • Should an ISP be able to inhibit BitTorrent on the grounds that 99.9% of its traffic is illicit transfers of copyrighted content?
  • What are some examples of specific “specialized services” and what (specific) “areas of concern” would be raised by each, and which of the available six different policy alternatives might, as a first cut guess, be enlisted?

The agency could surely come up with a long list, the regulated community, which is in the business of inventing services, could add more, and people who really understand the mechanics of the Internet, such as Richard Bennett and George Ou, could come up with some real stumpers.

But at least a focus on situations would move the discussion forward. At present, the enterprise reminds one of the old saw that a goldfish has such a bad memory that every trip around the bowl is a new experience. The FCC needs to stop circling the bowl.

Image from Wikipedia Commons.

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