One of the frustrating things about telecom debates is participants’ tendency to play fast and loose with the numbers. This tendency exists on both sides, but I think it’s more pronounced for the pro-regulatory side. Consider, for example, Susan Crawford’s post from last week on John McCain’s tech agenda:
First, here’s the fact: We don’t have a functioning “free market” in online access. John McCain thinks we do. That kind of magical thinking takes real practice. Instead, we’ve got four or so enormous companies that control most of the country’s access, and they’re probably delighted that McCain is promising not to regulate them.
I can’t think of any plausible way of defining the broadband market that gives you four as the number of major firms. We have three major telephone companies and (depending on where you draw the line) somewhere between four and eight major cable companies. And that, of course, is focusing exclusively on high-speed residential service. T-Mobile and Sprint provide lower-speed wireless Internet access, and there are a number of companies that provide access to business customers.
Maybe that’s just nitpicking about the numbers, but her qualitative view of the marketplace is just as distorted:
Not having basic, general purpose transport in place (to which lots of independent ISPs can connect) means no predictability for businesses or their investors. It also means we’re empowering a few large gatekeepers to decide which companies will be effective. That kind of private control over communications is something we’ve always cared about avoiding – until very recently. Restoring basic, general-purpose, nondiscriminatory transport is not “regulating the Internet.” It’s making the Internet – the conversation, remember, not the sidewalk – possible.
The idea that “basic, general-purpose, nondiscriminatory transport” has been lost and needs to be “restored” is simply absurd. With Comcast’s BitTorrent shenanigans, it’s no longer true that there are no significant examples of network neutrality violations. But to conclude from that one incident that “a few large gatekeepers” can now “decide which companies will be effective” on the Internet is quite a leap. In case Crawford didn’t notice, Comcast has promised to stop interfering with BitTorrent traffic, and other ISPs have not rushed to emulate Comcast’s example.
It remains true that the Internet remains an overwhelmingly open and decentralized medium, and there’s no evidence that those 4, 7, 11, or however many major broadband providers have the ability to change that. The legal right to discriminate does not confer the practical ability to do so. The evidence thus far, three years after Brand X, is that discrimination is clumsy, rare, and subject to public backlash.
In my view, that’s a good thing, and we should be debating the best way to keep it that way. But that debate isn’t going to be very productive if the pro-regulatory side insists on pretending that we’re already living in a dystopian world in which four companies exert despotic control over the online activities of every American.