FCC Opens the Net Neutrality Pandora’s Box a Bit More

by on April 18, 2007 · 4 comments

If you look back at all the writing we have done here on Net Neutrality (NN), it seems to me that the common theme of our collective opposition to regulation is that we just don’t know what we’re getting ourselves into. No doubt, we’re skeptics about most regulatory proposals, but with good reason. Our government does not have a very good track record when it comes to regulating communications or high-technology markets for the purposes of improving consumer welfare. In fact, just the opposite is usually the result. Consumers typically are on the losing end of grandiose regulatory schemes that are suppose to serve “the public interest.” As a century’s worth of communications industry regulation proved, regulation typically results in stagnant markets, lack-luster innovation and limited consumer choice.

That’s why yesterday’s new Notice of Inquiry about Net neutrality from the Federal Communications Commission (FCC) has me so worried. It tees up all the questions that we’ve been asking here for the past few years. The difference is, of course, that now the whole world is going to flood the agency with answers and many of them will entail regulatory action.

Just the way the FCC frames some of the questions in this Notice concerns me, especially in terms of the breadth of what the agency is investigating. Consider how the discussion kicks off:

We seek a fuller understanding of the behavior of broadband market participants today, including network platform providers, broadband Internet access service providers, other broadband transmission providers, Internet service providers, Internet backbone providers, content and application service providers, and others.

My oh my, who isn’t under the regulatory spotlight here? I remember when I used to joke about how NN would eventually come to cover just about every company under the Internet sun. And now the FCC is basically confirming that with this Notice! When the FCC asks about the practices of “content and application service providers,” does that mean Apple, Google and Microsoft’s business practices are going to be scrutinized? Or could “content service provider” be read broadly enough to even include media and entertainment companies? Who knows.

And when the FCC refers to “broadband transmission providers,” does that include the likes of Akamai, Limelight Networks, Savvis, Mirror Image Internet and other content delivery bit traffic managers? They are clearly engaged in practices that betray NN principles, and thank God they are because the Internet operates a hell of lot better because of it! (Read this week’s excellent Forbes cover story for more details).

There are many other questions raised in the NOI–some quite routine, others quite bizarre [my comments follow the questions]:

  • “during times of congestion, do providers prioritize packets for latency-sensitive applications such as voice calls, video conferencing, live video, or gaming? Do providers prioritize packets for safety- and security-related applications such as health monitoring, home monitoring, and emergency calls?” [Geez, I hope they do. What they hell is wrong with that?]

  • “Do providers block packets containing child pornography, spyware, viruses, or spam? Do providers offer parental controls that block packets containing sexually explicit material?” [Uh... why is this being debated here?]

  • “we ask commenters to describe today’s pricing practices for broadband and related services. Do providers charge different prices for different speeds or capacities? Given the greater availability of bandwidth-intensive applications, do providers charge a premium to download a particular amount of content? Do broadband providers charge upstream providers for priority access to end users? Should our policies distinguish between content providers that charge end users for access to content and those that do not? Do providers currently discriminate in the prices they charge to end users and/or upstream providers?” [As I've point out many times before, this is my greatest concern about the specter of NN regulation; that it eventually devolves into old-fashion, command-and-control price regulation.]

  • “does the Commission have the legal authority to enforce the [Net neutrality] Policy Statement in the face of particular market failures or other specific problems?” [Hey, when has that ever stopped them before!]

What will come of the FCC’s Notice of Inquiry? Only time will tell. But the seeds of a new regulatory regime may have already been planted.

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About Adam Thierer

Adam Thierer is a senior research fellow at the Mercatus Center at George Mason University. He previously served as President of The Progress & Freedom Foundation, as Director of Telecommunications Studies at the Cato Institute, and as a Fellow in Economic Policy at the Heritage Foundation. He is the author or editor of six books on technology and media policy and also writes a weekly column for Forbes called "Technologies of Freedom." Thierer earned his bachelor's degree in political science and journalism at Indiana University and received his master's degree in international business management and trade theory at the University of Maryland. His passions in life (besides technology and liberty, of course) are fast cars, fine cigars, and good beer.

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  • http://www.wbklaw.com Michael Sullivan

    The questions about prioritization/blocking of packets regarding child porn and medical monitoring and such sound to me like the FCC is trying to invite comments showing that net neutrality would potentially have bad effects as well as the “good” effects alleged by NN proponents. Of course the likelihood that an access provider would be able to distinguish packets in this manner in order to prioritize is slim to nonexistent.

  • http://www.wbklaw.com Mike Sullivan

    The questions about prioritization/blocking of packets regarding child porn and medical monitoring and such sound to me like the FCC is trying to invite comments showing that net neutrality would potentially have bad effects as well as the “good” effects alleged by NN proponents. Of course the likelihood that an access provider would be able to distinguish packets in this manner in order to prioritize is slim to nonexistent.

  • http://dsgazette.blogspot.com False Data

    I’d guess the blocking questions came up because some critics of NN have said it would prevent a network provider from blocking spam zombies or viruses looking for exploitable systems when the source is the provider’s own network.

    The questions about prioritizing packets come up for a number of reasons. IP version 4 allows something called “type of service” or “quality of service,” but anecdotally very few networks seem to support it. It’s possible some of them are prioritizing based on other traits of the packets, like port number. It may also be possible that they have plans to prioritize but haven’t started doing it yet. Some forms of NN disagree with prioritization, others disagree with it only when a network changes the priority level depending on the content’s source (as opposed to the type of content), so for example they might object if AT&T, which co-brands its DSL service with Yahoo, were to prioritize Yahoo searches over Google searches for all AT&T customers.

    Remember that two of the five commissioners have taken fairly strong stances against the NN provisions in the AT&T/BellSouth merger, suggesting they would be hostile to NN. (pdf) Two others seem to favor some form of NN. The fifth abstained from voting on the AT&T deal, so I’m not sure where he stands. So while some on the libertarian side may be suspicious of an FCC power grab, here, some NN proponents are probably just as suspicious that this is a procedural maneuver to bury the debate. (The FCC doesn’t have to act on a notice of inquiry. They can gather all the comments and then say “based on these comments, we don’t think regulation is necessary right now.”) A third possibility is that it’s a power struggle in which the FCC’s trying to head off congressional legislation. Or, maybe they’re just trying to hash it out once and for all so they don’t have to revisit it every time they need to vote on a new telecom or cable merger.

  • http://dsgazette.blogspot.com False Data

    I’d guess the blocking questions came up because some critics of NN have said it would prevent a network provider from blocking spam zombies or viruses looking for exploitable systems when the source is the provider’s own network.

    The questions about prioritizing packets come up for a number of reasons. IP version 4 allows something called “type of service” or “quality of service,” but anecdotally very few networks seem to support it. It’s possible some of them are prioritizing based on other traits of the packets, like port number. It may also be possible that they have plans to prioritize but haven’t started doing it yet. Some forms of NN disagree with prioritization, others disagree with it only when a network changes the priority level depending on the content’s source (as opposed to the type of content), so for example they might object if AT&T;, which co-brands its DSL service with Yahoo, were to prioritize Yahoo searches over Google searches for all AT&T; customers.

    Remember that two of the five commissioners have taken fairly strong stances against the NN provisions in the AT&T;/BellSouth merger, suggesting they would be hostile to NN. (pdf) Two others seem to favor some form of NN. The fifth abstained from voting on the AT&T; deal, so I’m not sure where he stands. So while some on the libertarian side may be suspicious of an FCC power grab, here, some NN proponents are probably just as suspicious that this is a procedural maneuver to bury the debate. (The FCC doesn’t have to act on a notice of inquiry. They can gather all the comments and then say “based on these comments, we don’t think regulation is necessary right now.”) A third possibility is that it’s a power struggle in which the FCC’s trying to head off congressional legislation. Or, maybe they’re just trying to hash it out once and for all so they don’t have to revisit it every time they need to vote on a new telecom or cable merger.

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