Our First Net Neutrality Law: Congrats to our Big Gov’t Opponents

by on July 26, 2008 · 35 comments

It is a difficult thing for me to say, but I am man enough to do it: I must congratulate our intellectual opponents on their amazing victory in the battle to impose Net neutrality regulations on the Internet. With the Wall Street Journal reporting last night that the FCC is on the verge of acting against Comcast based on the agency’s amorphous Net neutrality principles, it is now clear that the folks at the Free Press, Public Knowledge, and the many other advocates of comprehensive Internet regulation have succeeded in convincing a Republican-led FCC to get on the books what is, in essence, the nation’s first Net Neutrality law. It is quite an accomplishment when you think about it.

Even though, as Jerry Brito has noted, “the FCC has no authority to enforce a non-binding policy statement,” it is clear that is not about to stop the activist-minded FCC Chairman Kevin Martin or his allies on the Left from advancing the cause of arbitrary, bureaucratic governance of the Internet. And that means the “Hands Off the Net” era will gradually start giving way to the “Hands All Over the Net” era. As I told Bob Fernandez of the Philadelphia Inquirer when he called to interview me for a story about these developments:

“This is the foot in the door for big government to regulate the Internet,” [...] “This is the beginning of a serious regulatory regime. For the first time, the FCC is making law around net neutrality.”

And now that they have that foot in the door, I fully expect that it will be exploited for everything it’s worth to grow the scope of the FCC’s coercive bureaucratic authority over all things digital. The Left is salivating at the prospect of imposing their top-down vision of forced egalitarianism on the the Net, while the Right is figuring out how quickly they can exploit this to impose speech controls on anything they don’t want the public to see or hear.

It is a historic moment in the history of communications and media regulation, and freedom has lost—miserably. The tentacles of the regulatory Leviathan have grown infinitely longer and a little bit more of the Net’s freedom died today. And, again, what’s most amazing about this is that we have a Republican FCC to thank for that. So much for the GOP being for smaller government.

  • http://managingmiracles.blogspot.com/ Steve Schultze

    And Adam, I congratulate you on a fine piece of rhetoric. I am almost swayed to your way of thinking. Almost.

    The problem with your reasoning on this issue is that it is characteristically simplistic. Characteristic, that is, of a flavor of libertarianism that is focused so narrowly on government regulation that it develops willful blindness to regulation from other sources. The “regulatory Leviathan” sprouts tentacles not just via bureaucrats and legal code, but via “market” actors as well.

    As I noted here, your intellectual hero Ithiel de Sola Pool recognized this fact. In the case of cable he explicitly supported common carrier regulation in order to preserve it as a “technology of freedom.” Elsewhere, he refers to “the libertarian features of the common carrier system.”

    How could such a revered thinker align regulatory intervention with libertarian principles? The answer is that Pool did not fall prey to narrow-minded categorizations of what was or was not “regulation.” He recognized that market-motivated firms could regulate communication and commerce.

    Furthermore, no matter what Bruce Owen thinks, the current nondiscriminatory safeguards being advocated in the name of net neutrality are far less imposing than the full common carriage regime.

    The 1979 decision FCC v. Midwest Video Corp. was directly discussed in this current docket. You may recall that this was the decision that said that the Commission did not have jurisdiction to impose common carriage on cable because cable was a “broadcast” service. Whether or not this finding was consistent with the “blue sky” rhetoric which won cable its deregulated position to begin with, is another matter.

    Ultimately we must ask whether there is any role whatsoever for government in ensuring free speech and free markets in the presence of gatekeepers. Otherwise, libertarianism is just a euphemism for anarchy.

  • http://managingmiracles.blogspot.com/ Steve Schultze

    And Adam, I congratulate you on a fine piece of rhetoric. I am almost swayed to your way of thinking. Almost.

    The problem with your reasoning on this issue is that it is characteristically simplistic. Characteristic, that is, of a flavor of libertarianism that is focused so narrowly on government regulation that it develops willful blindness to regulation from other sources. The “regulatory Leviathan” sprouts tentacles not just via bureaucrats and legal code, but via “market” actors as well.

    As I noted here, your intellectual hero Ithiel de Sola Pool recognized this fact. In the case of cable he explicitly supported common carrier regulation in order to preserve it as a “technology of freedom.” Elsewhere, he refers to “the libertarian features of the common carrier system.”

    How could such a revered thinker align regulatory intervention with libertarian principles? The answer is that Pool did not fall prey to narrow-minded categorizations of what was or was not “regulation.” He recognized that market-motivated firms could regulate communication and commerce.

    Furthermore, no matter what Bruce Owen thinks, the current nondiscriminatory safeguards being advocated in the name of net neutrality are far less imposing than the full common carriage regime.

    The 1979 decision FCC v. Midwest Video Corp. was directly discussed in this current docket. You may recall that this was the decision that said that the Commission did not have jurisdiction to impose common carriage on cable because cable was a “broadcast” service. Whether or not this finding was consistent with the “blue sky” rhetoric which won cable its deregulated position to begin with, is another matter.

    Ultimately we must ask whether there is any role whatsoever for government in ensuring free speech and free markets in the presence of gatekeepers. Otherwise, libertarianism is just a euphemism for anarchy.

  • http://www.brettglass.com/FCC/remarks.html Brett Glass

    Adam, as a small businessperson directly affected by the ruling, I have less occasion to be sanguine or congratulatory. Free Press lied, and lied, and then lied again to obtain it. They ran an “astroturf” campaign (they spent $700,000 on their Internet agenda in 2007 alone) to deceive the public, the media, and government officials, and it is going to hurt free enterprise, small business, entrepreneurship, and broadband deployment.

    I was one of the very few independent ISPs who spoke up in this matter. Most of my colleagues failed to recognize how much damage an adverse decision could do, or told me they were “too busy” fighting off anticompetitive practices by the telephone and cable companies. They trusted government to do the right thing, not realizing how much harm it could do or how likely it was, under the circumstances, to do the wrong thing. They are only now becoming aware of what this decision bodes.

    At this juncture, no one knows the precise content of the FCC ruling. However, if (as is speculated) it attempts to turn a policy statement that was previously declared to be “nonbinding” into rules without the Commmission’s normal rulemaking process, it will be arbitrary and capricious and a violation of due process — and will justly be seen by the courts in this way. But in the meantime, capital for broadband deployment will dry up due to the uncertainty, and innovation and competition could well be extinguished. Because Commissioner Michael Copps has stated his intent to continue this pattern of arbitrary and capricious behavior, and will likely do so if the Democratic party gains more power in the fall election, we must encourage Comcast to fight the FCC’s ruling. Given the recent decision in CBS v. Comcast, it is almost an open-and-shut case.

  • http://www.brettglass.com/FCC/remarks.html Brett Glass

    Adam, as a small businessperson directly affected by the ruling, I have less occasion to be sanguine or congratulatory. Free Press lied, and lied, and then lied again to obtain it. They ran an “astroturf” campaign (they spent $700,000 on their Internet agenda in 2007 alone) to deceive the public, the media, and government officials, and it is going to hurt free enterprise, small business, entrepreneurship, and broadband deployment.

    I was one of the very few independent ISPs who spoke up in this matter. Most of my colleagues failed to recognize how much damage an adverse decision could do, or told me they were “too busy” fighting off anticompetitive practices by the telephone and cable companies. They trusted government to do the right thing, not realizing how much harm it could do or how likely it was, under the circumstances, to do the wrong thing. They are only now becoming aware of what this decision bodes.

    At this juncture, no one knows the precise content of the FCC ruling. However, if (as is speculated) it attempts to turn a policy statement that was previously declared to be “nonbinding” into rules without the Commmission’s normal rulemaking process, it will be arbitrary and capricious and a violation of due process — and will justly be seen by the courts in this way. But in the meantime, capital for broadband deployment will dry up due to the uncertainty, and innovation and competition could well be extinguished. Because Commissioner Michael Copps has stated his intent to continue this pattern of arbitrary and capricious behavior, and will likely do so if the Democratic party gains more power in the fall election, we must encourage Comcast to fight the FCC’s ruling. Given the recent decision in CBS v. Comcast, it is almost an open-and-shut case.

  • http://enigmafoundry.wordpress.com/2008/05/25/ministry-of-truth-at-the-tlf/ enigma_foundry

    I would second Steve Schultze’s comments above, and add that it is a peculair characteristic of TLF-libertarianism to see wrongs of government, but never of corporations.

    Also it is curious that you mention below

    Even though, as Jerry Brito has noted, “the FCC has no authority to enforce a non-binding policy statement,”

    as I have made numerous comments in reply to Jerry, noting exactly why his postion is anti-freedom.

    ALL OF MY COMMENTS HAVE BEEN DELETED. JERRY IS A COWARD.

  • http://enigmafoundry.wordpress.com eee_eff

    I would second Steve Schultze’s comments above, and add that it is a peculair characteristic of TLF-libertarianism to see wrongs of government, but never of corporations.

    Also it is curious that you mention below

    Even though, as Jerry Brito has noted, “the FCC has no authority to enforce a non-binding policy statement,”

    as I have made numerous comments in reply to Jerry, noting exactly why his postion is anti-freedom.

    ALL OF MY COMMENTS HAVE BEEN DELETED. JERRY IS A COWARD.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I’ll have to second enigma foundary, that “it is a peculiar characteristic of TLF-libertarianism to see wrongs of government, but never of corporations.” As Steve Schultze notes: Otherwise, libertarianism is just a euphemism for anarchy..

    If corporations can take capricious unilateral action, which hurts the consumer, in the name of “fostering business growth”, simple logic would entitle the consumer to take whatever action the consumer would deem appropriate to protect themselves. Given this situation, anarchy would clearly prevail.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    I’ll have to second enigma foundary, that “it is a peculiar characteristic of TLF-libertarianism to see wrongs of government, but never of corporations.” As Steve Schultze notes: Otherwise, libertarianism is just a euphemism for anarchy..

    If corporations can take capricious unilateral action, which hurts the consumer, in the name of “fostering business growth”, simple logic would entitle the consumer to take whatever action the consumer would deem appropriate to protect themselves. Given this situation, anarchy would clearly prevail.

  • http://bennett.com/blog Richard Bennett

    Steve R, you err in characterizing Comcast’s actions as “anti-consumer.”

    Limiting the bandwidth that can be used by a notoriously bandwidth-hogging application is a good thing for the 90% of their customers who never use that application. Managing bandwidth hogs reduces the anarchy, it doesn’t cause it.

  • http://enigmafoundry.wordpress.com/2008/05/25/ministry-of-truth-at-the-tlf/ enigma_foundry

    @Richard:

    The issue is not managing bandwidth, but Comcast’s very selective targeting certain application’s protocols, after Comcast clearly said on their website that did not do that. They lied. That’s fraud.

    When the subject matter is: the network used for public discussion and debate, Comcast has become a repressive entity.

    I hope they get huge fines and are sent out of business; no fine could be too great for interfering with First Amendment rights of natural citizens.

    Note:

    In an effort to be extremely fair to Jerry Brito, I have sent him several emails asking for him to explain his repeated deletions of my posts, before creating the following article:

    HE HAS NEVER REPLIED TO ANY OF THESE EMAILS…

    E_F

  • http://enigmafoundry.wordpress.com/2008/05/25/ministry-of-truth-at-the-tlf/ enigma_foundry
  • http://bennett.com/blog Richard Bennett

    Steve R, you err in characterizing Comcast’s actions as “anti-consumer.”

    Limiting the bandwidth that can be used by a notoriously bandwidth-hogging application is a good thing for the 90% of their customers who never use that application. Managing bandwidth hogs reduces the anarchy, it doesn’t cause it.

  • http://bennett.com/blog Richard Bennett

    Have you considered decaf, EF? Many people swear by it.

    Comcast isn’t going to be fined directly, but the will effectively be out a great deal of money if they have to de-commission their Sandvine equipment. This gear prevents a handful of hogs from ruining the Internet experience of their neighbors, and has a place in a comprehensive management system.

  • http://enigmafoundry.wordpress.com eee_eff

    @Richard:

    The issue is not managing bandwidth, but Comcast’s very selective targeting certain application’s protocols, after Comcast clearly said on their website that did not do that. They lied. That’s fraud.

    When the subject matter is: the network used for public discussion and debate, Comcast has become a repressive entity.

    I hope they get huge fines and are sent out of business; no fine could be too great for interfering with First Amendment rights of natural citizens.

    Note:

    In an effort to be extremely fair to Jerry Brito, I have sent him several emails asking for him to explain his repeated deletions of my posts, before creating the following article:

    HE HAS NEVER REPLIED TO ANY OF THESE EMAILS…

    E_F

  • http://enigmafoundry.wordpress.com eee_eff

    The following article mentioned above:

    http://enigmafoundry.wordpress.com/2008/05/25/m

  • http://bennett.com/blog Richard Bennett

    Have you considered decaf, EF? Many people swear by it.

    Comcast isn’t going to be fined directly, but the will effectively be out a great deal of money if they have to de-commission their Sandvine equipment. This gear prevents a handful of hogs from ruining the Internet experience of their neighbors, and has a place in a comprehensive management system.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Richard, my apologies if I was not clear. I was writing in the abstract and I did not intend to refer to Comcast at all.

    I also acknowledge that there are situations where companies, such as Comcast, may have legitimate needs to manage their networks. The problem that I have is that many corporations spin the truth so you never know if the excuse is legitimate or a cover-up. Regretfully, based on anecdotal experience, I tend to view corporate explanations as burying the truth rather than transparent disclosure.

  • http://bennett.com/blog Richard Bennett

    I agree with you Steve R, that corporations spin the truth, especially where law and policy are concerned. But even more insidious than that is the tendency of large corporations to fail to tell the left hand what the right hand is doing. There was clearly a breakdown in communication between the net ops side of Comcast and the customer support side early in the deployment of Sandvine. What remains to be seen is whether this was simply business as usual or a devious plot.

    And I’m sure you’d admit that corporations don’t have a monopoly on spin; there’s an enormous reservoir of that talent in and around our capitol on all sides.

    For many years now, we’ve had a small but influential advocacy community touting the benefits of a “dumb Internet” and decrying any attempt to manage the innards of this system. But the “dumb Internet” is a simplification, a metaphor, and an illusion in terms of the actual day-to-day requirements of network operations.

    So what we have at the heart of the NN debate is simply the collision of metaphor with reality, and that’s the essence of spin.

  • http://blog.6thdensity.net Jeremy

    I am fully against regulation, because I think especially in the telecom / broadcasting / etc. industry it is used to squelch competition and enrich big business.

    But we must remember that we didn’t get to this place via the free market, either. The history of telecom is the history of government subsidy and privilege. While I agree that gov’t shouldn’t intervene, the fact is that government already did – and the consequences of that past intervention has led to a currently imbalanced situation, undoubtedly.

    It’s a messy situation, and it’s hard to say “ok, let’s have a free market… starting NOW” when past interventions have stacked the balanced of power in favor of the few.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Richard, my apologies if I was not clear. I was writing in the abstract and I did not intend to refer to Comcast at all.

    I also acknowledge that there are situations where companies, such as Comcast, may have legitimate needs to manage their networks. The problem that I have is that many corporations spin the truth so you never know if the excuse is legitimate or a cover-up. Regretfully, based on anecdotal experience, I tend to view corporate explanations as burying the truth rather than transparent disclosure.

  • http://bennett.com/blog Richard Bennett

    I agree with you Steve R, that corporations spin the truth, especially where law and policy are concerned. But even more insidious than that is the tendency of large corporations to fail to tell the left hand what the right hand is doing. There was clearly a breakdown in communication between the net ops side of Comcast and the customer support side early in the deployment of Sandvine. What remains to be seen is whether this was simply business as usual or a devious plot.

    And I’m sure you’d admit that corporations don’t have a monopoly on spin; there’s an enormous reservoir of that talent in and around our capitol on all sides.

    For many years now, we’ve had a small but influential advocacy community touting the benefits of a “dumb Internet” and decrying any attempt to manage the innards of this system. But the “dumb Internet” is a simplification, a metaphor, and an illusion in terms of the actual day-to-day requirements of network operations.

    So what we have at the heart of the NN debate is simply the collision of metaphor with reality, and that’s the essence of spin.

  • http://enigmafoundry.wordpress.com/2008/05/25/ministry-of-truth-at-the-tlf/ enigma_foundry

    Have you considered decaf, EF? Many people swear by it.

    Hmmm… I suppose that means you haven’t a reply to the substantive issues I’ve raised.

    Comcast isn’t going to be fined directly, but the will effectively be out a great deal of money if they have to de-commission their Sandvine equipment. This gear prevents a handful of hogs from ruining the Internet experience of their neighbors, and has a place in a comprehensive management system.

    I wouldn’t be s sure. There’s still the possibility of a class action lawsuit.

    Also, I have nothing against a company deciding to manage bandwidth. That’s fine. But what’s not OK is targeting a specific protocol. The libertarians make a big deal out of the fact that net neutrality rules aren’t required because the violations are so hard to find….Well here is an example..one among many…

  • http://blog.6thdensity.net Jeremy

    I am fully against regulation, because I think especially in the telecom / broadcasting / etc. industry it is used to squelch competition and enrich big business.

    But we must remember that we didn’t get to this place via the free market, either. The history of telecom is the history of government subsidy and privilege. While I agree that gov’t shouldn’t intervene, the fact is that government already did – and the consequences of that past intervention has led to a currently imbalanced situation, undoubtedly.

    It’s a messy situation, and it’s hard to say “ok, let’s have a free market… starting NOW” when past interventions have stacked the balanced of power in favor of the few.

  • http://enigmafoundry.wordpress.com eee_eff

    Have you considered decaf, EF? Many people swear by it.

    Hmmm… I suppose that means you haven’t a reply to the substantive issues I’ve raised.

    Comcast isn’t going to be fined directly, but the will effectively be out a great deal of money if they have to de-commission their Sandvine equipment. This gear prevents a handful of hogs from ruining the Internet experience of their neighbors, and has a place in a comprehensive management system.

    I wouldn’t be s sure. There’s still the possibility of a class action lawsuit.

    Also, I have nothing against a company deciding to manage bandwidth. That’s fine. But what’s not OK is targeting a specific protocol. The libertarians make a big deal out of the fact that net neutrality rules aren’t required because the violations are so hard to find….Well here is an example..one among many…

  • http://www.mcgath.com/blog Gary McGath

    The defenders of the FCC’s approach call it “regulation by adjudication.” In other words, one first brings charges then makes up rules. This used to be called “ex post facto.”

  • http://www.mcgath.com/blog Gary McGath

    The defenders of the FCC’s approach call it “regulation by adjudication.” In other words, one first brings charges then makes up rules. This used to be called “ex post facto.”

  • Jamalystic

    Let’s hope the punishment does not make a mockery of the situation. I beleive this is an ideal example for the FCC to send out a very strong warning that such actions would not be tolerated: Net Neutrality Violations: Worth a Closer Look(http://www.internetevolution.com/author.asp?section_id=539&doc_id=160123&F_src=flftwo)

  • Jamalystic

    Let’s hope the punishment does not make a mockery of the situation. I beleive this is an ideal example for the FCC to send out a very strong warning that such actions would not be tolerated: Net Neutrality Violations: Worth a Closer Look(http://www.internetevolution.com/author.asp?section_id=539&doc_id=160123&F_src=flftwo)

  • http://www.fullspectrumstables.com TrainEERR!

    very interesting points im going to look more into it

  • http://www.fullspectrumstables.com TrainEERR!

    very interesting points im going to look more into it

  • Pingback: adipex coupons

  • Pingback: DDOS Protected VPN

  • Pingback: australia 1300 numbers

  • Pingback: premier league malaysia

  • Pingback: prix de l'immobilier

Previous post:

Next post: