Barking is Better than Biting

by on September 28, 2006 · 4 comments

I hope the guys at Techdirt don’t mind me ripping off entire posts, because they’re too good, and too short, to excerpt:

Sometimes on the internet, things break. With so many pieces of network gear between a user, their ISP and a content provider’s servers, it’s not unreasonable that something goes down, gets misconfigured, or unplugged every once in a while. Something along those lines happened yesterday at Comcast, when a DNS server failed, temporarily blocking users from accessing Google and some other sites–and then the conspiracy theories started flying, with plenty of commenters fingering net neutrality even after the problem had been resolved, and the truth of the equipment failure had come out. The upshot of this isn’t to point out trigger-happy commenters ready to jump all over ISPs before the truth comes out, but rather that it illustrates just how difficult telcos have made it for themselves–should they ever actually go so far as to follow through on any of their inflammatory rhetoric about blocking or degrading the traffic of sites that won’t pay protection money. The tremendous amount of press this issue has gotten, fueled by the exaggerated and dishonest claims from people on both sides of the issue has made a lot of consumers hyper-sensitive and imagining “net neutrality violations” where they don’t exist. It’s seemed pretty clear all along that any telco stupid enough to block access to something like Google in the middle of this highly charged debate would be shooting itself in the foot; but these sorts of reactions to network outages and problems reiterate that even if telcos have the right to demand payments from content providers and block traffic, doing so would be commercial suicide.

I think this illustrates the virtues of the Felten thesis: threatening to enact new regulations may be more effective than actually enacting them. Even if the pro-regulatory side ultimately loses the legislative battle, the mere fact that we had a big debate about it means that a lot more people are now paying attention to the importance of network neutrality principles, and it’s likely to intensify the backlash should the telcos do anything shady in the future.

  • James Gattuso

    “threatening to enact new regulations may be more effective than actually enacting them”.

    Tim — seems to be a rehash of the “bully pulpit” approach, where regulators get firms to do what they want without actually having to go through the messiness of adopting an actual regulation.

    I thought Adam Thierer pretty thorougly destroyed this argument in his NRO piece earlier this year (in the context of Kevin Martin’s push for cable a la carte):

    “…conservatives typically oppose the use of the so-called “enlightening power of the Bully Pulpit,” which involves government shaking down private companies for favors. For example, when regulators play this game on the environmental or labor policy fronts, conservatives rightly cry foul. After all, the result being coerced from them is hardly “voluntary;” those firms are only acting because they are facing harsher penalties if they choose not to act.”
    http://www.nationalreview.com/nrof_comment/thierer200601180858.asp

    A consumer backlash to market behavior is one thing. A threat by government to regulate is entirely another.

  • http://www.techliberation.com/ Tim Lee

    I think there’s two issues here. The first is whether government intervention is appropriate at all. I think the answer is clearly “no” in the case of a la carte, and probably “no” in the case of network neutrality regulations.

    However, for those who answer “yes” to this question, a second question is: what form should the action take? And Felten argues persuasively that given the highly speculative and complex nature of the issue, this is a case where the bully pulpit is likely to be better than premature legislation.

    I think Adam would probably agree that, much as it rankles all of us to have the FCC informally twisting the cable industry’s arms to offer particular programming packages, it could be even worse if the FCC enacted formal regulations on the subject.

  • James Gattuso

    “threatening to enact new regulations may be more effective than actually enacting them”.

    Tim — seems to be a rehash of the “bully pulpit” approach, where regulators get firms to do what they want without actually having to go through the messiness of adopting an actual regulation.

    I thought Adam Thierer pretty thorougly destroyed this argument in his NRO piece earlier this year (in the context of Kevin Martin’s push for cable a la carte):

    “…conservatives typically oppose the use of the so-called “enlightening power of the Bully Pulpit,” which involves government shaking down private companies for favors. For example, when regulators play this game on the environmental or labor policy fronts, conservatives rightly cry foul. After all, the result being coerced from them is hardly “voluntary;” those firms are only acting because they are facing harsher penalties if they choose not to act.”
    http://www.nationalreview.com/nrof_comment/thie…>

    A consumer backlash to market behavior is one thing. A threat by government to regulate is entirely another.

  • http://www.techliberation.com/ Tim Lee

    I think there’s two issues here. The first is whether government intervention is appropriate at all. I think the answer is clearly “no” in the case of a la carte, and probably “no” in the case of network neutrality regulations.

    However, for those who answer “yes” to this question, a second question is: what form should the action take? And Felten argues persuasively that given the highly speculative and complex nature of the issue, this is a case where the bully pulpit is likely to be better than premature legislation.

    I think Adam would probably agree that, much as it rankles all of us to have the FCC informally twisting the cable industry’s arms to offer particular programming packages, it could be even worse if the FCC enacted formal regulations on the subject.

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