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The FCC is a bigger Joke than the SEC. Its called the Fleecing of America.

http://www.newnetworks.com

The FCC is a bigger Joke than the SEC. Its called the Fleecing of America.

As Adam Thierer and I recently warned in our Forbes.com editorial, Net Neutrality, Slippery Slopes & High-Tech Mutually Assured Destruction:

Sincere defenders of real Internet Freedom—that is, freedom from government techno-meddling—recognize that there will always be disputes over how companies deal with each other online across all layers of the Internet. The question is not whether we need a technical coordinating mechanism for handling such disputes. Someone should mediate conflicts over alleged deviations from abstract neutrality principles. But should that arbitrator be an inherently political body like FCC? Or should we instead look to truly independent, apolitical arbitrators like the Internet Engineering Task Force or collaborative efforts like the Network Neutrality Squad? Such alternative dispute resolution mechanisms and fora need not have the power of law to be effective: The weight of their expert opinion, based on careful investigation of the facts, would likely resolve most disputes, because companies have strong reputational incentives to comply with reasoned rulings by truly neutral experts. And the white hot spotlight of public attention has a way of disciplining marketplace behavior as well.

Government would still have a role to play, of course, in enforcing antitrust laws where anticompetitive harm to consumers can be proven, and in enforcing the promises companies make to consumers. Ultimately, however, certain business models and technologies require non-neutral treatment, and the best remedy for concerns about non-neutrality is competition itself: In the high-tech sector more than any other, disruptive innovation makes it difficult for even the most successful companies to stay on top forever. Competitive entry—or even the threat of new entry—provides a powerful check on the power of so-called “gatekeepers,” but even more important is the prospect that today’s leaders will be tomorrow’s laggards: There’s little reason to think Google (search and advertising), Apple (smart phones and music) and Facebook (social networking) won’t someday find themselves playing catch-up, just as IBM (computers), Microsoft (desktop software and search), Friendster and MySpace (social networking), and Yahoo! and AOL (web portals) have had to do.

“Digital Détente” would require that all parties concede something and work constructively toward a more “peaceful” (i.e., less regulatory) resolution. And yet, no Internet company wants to disarm unilaterally, foreswearing politics as a continuation of competition by other means. Only through multilateral disarmament could they break out of the current cycle of regulatory one-upmanship: If the companies in the Internet ecosystem could form a united front against increased government regulation and in favor of removing existing regulatory obstacles to competition, they could all return to their core competencies of creativity and innovation.

The alternative is a regulatory “nuclear winter”: high-tech titans turning their political fire on each other, catching innocent third parties in the cross-fire and bringing a dark cloud of government regulation over the entire Internet. Such increased regulation would stifle investment and innovation throughout the Internet ecosystem. Thus, it is consumers who will ultimately suffer most from the tech industry’s suicidal impulse, as their choices and digital lives are impoverished. For their sake, we hope all industry players will step back from the brink to avoid such high-tech mutually assured destruction.

And thanks for your further reply, Andrew. It highlights, and alas does not narrow, our differences. Because the fulcrum, once again, is who should decide how networks are managed, not what are good and bad network management practices.

Technical Infrastructure Amenable to Totalitarianism

I take it you believe that corporate control of networks is more amenable to totalitarianism than government control of networks. Really? In what scenario does government control of network management inure networks against government control of content? I would think that having networks never answer to government would make them the most resistant to government control.

But perhaps you mean “corporate totalitarianism” (a concept that is wordplay to me because governments monopolize the use of force). I suppose it's possible to imagine a situation where a “corporate dominated media” has effects here in the U.S. something like China's government does in China. But that's quite an exercise in imagination (which doesn't stop many on the far left, I guess). Do you think that China's network management, censorship and all, is preferable because the government is protecting the people from corporate dominated media?

“It”

Originally, I took “it” to be your conflation of network management by private ISPs in the U.S. with government censorship in China.

I was willing to take the definition of “it” in your first comment: “the techniques of network-level content filtering.”

But your latest definition – “political censorship” – reinforces my point about moral equivalency. You appear to see packet-based discrimination by private U.S. ISPs as equivalent to government censorship in China. They are not. China imprisons and kills people who organize or air views contrary to government policies. If they did content-based discrimination, ISPs would simply drive people to other services. This is not worrisome. Indeed, we should foster competition to increase the likelihood, which is a risk to ISPs, not people.

The Better Enforcement Mechanism

Competition is the better enforcement mechanism. I do give credence to the possibility of scenarios where ISP packet discrimination might be driven by opportunistic, scarcity-enabled rent-seeking – exclusive deals that benefit one competitor (the “preferred” video service of the ISP, for instance).

For reasons articulated well in Tim Lee's paper (again, please read, all), I think such arrangements would fail in the marketplace. But let's put a lens on the agar in which that kind of arrangement might grow.

Corporate opportunism? The adjective “opportunistic” doesn't really add or detract. Let's put aside whether businesses are simple economic machines or whether they can be imbued with some kind of moral core. (We can be certain to hear from TLF regular “Steve R” on that score.)

Scarcity? Similarly, not the key point. All selling is scarcity-enabled, just like all buying is scarcity-driven. The question is what produces, and what alleviates, the scarcity that would strengthen the hand of now-dominant ISPs.

Rent-seeking. In modern economic parlance, “rent-seeking” is the pursuit of profit not from productive activity, but from capturing special monopoly privileges, such as through government regulation. If you meant it that way, I'll take it as an admission that existing regulation – tight government control of spectrum, for example – has created artificial scarcity in broadband and thus paved the way for whatever unattractive, non-neutral deals ISPs might try to enter into.

The solution, of course, is not to let bad policies affecting broadband availability today metastasize into network management regulation, but to reduce the regulatory intrusions that reduce competition, don't you think? I imagine you don't. But I'm curious as to why.

Following their natural economic incentives, government officials almost always choose the path that increases government power. It would be doubly contrary to your incentive structure to a) reduce government control over spectrum so as to b) reduce the need for regulation of ISPs. But such incentives have been overcome in the past. I think Ira Magaziner did so when he helped put a wall between the DNS and the U.S. government, something you're intimately familiar with (including its warts).

Perhaps Magaziner was so circumspect because he was stung by the failure of the Clinton health care plan. By extrapolation, we have only to wait for the failure of Obamacare to see net neutrality regulation abandoned in favor of policies that permit new broadband platforms and platform-based competition….

The American Public and the FCC need to keep an eye on ISPs. Comcast has been censoring conservative message board posters in my opinion. Because dominant ISP Comcast is a gateway to the internet, they control many eyeballs. Comcast's systematic censoring of conservative opinions on their News & Current Events message boards needs to cease and desist. If Comcast gets tax breaks from local government, then they have a civic, ethical, moral and perhaps legal obligation to provide fair and balanced moderation of their message boards. This type of social engineering is an outrage. Please get involved. Silence is consent. Post a conservative response to a News or Current Events thread here and see for yourself.

http://community.comcast.net/comcastportal/boar...

This is America…Not CHINA

While this might work in a common carrier scenario – where a common carrier's charges and practices are regulated; there would be compensation for such access – in the new scenario, outside of Title 2, I think the FCC runs afoul of not only the '34 / '96 T-Com Act, but also the 1st and 5th Amendments of the US Constitution.

I guess the short of it – Chevron deference only goes so far. Congress, not the FCC, should give the FCC clearer authority in this (very) murky area. Lacking this authority, the FCC performs its own version of “censorship,” albeit in a more benign sense than the Chinese.

Agreed! Ergo, the FCC proceeding to assess whether and when arguably-useful-but-potentially-abuse-able forms of packet discrimination should be considered to cross the line. [See, we're narrowing our differences. ]

> “The purpose when ISPs do it is customer service which is morally right (if poorly directed in rare instances).”

We seem to be using two definitions of “it”. The “it” in my (semi-de-contextualized, but that's another matter) quote is “political censorship”. I argue that's bad wherever it happens. The “it” in your quote above seems to be “reasonable network management”, which leads you to label “it” as a “customer service”. Using my “it”, how would you write that sentence?

> “But the better enforcement mechanism is to have engineers — driven by ISP owners who are driven by Internet users — maintain the networks.”

Do you give credence to a scenario where ISP packet discrimination (and I mean that in a morally neutral sense) practices might be driven not by their users or engineers, but rather by opportunistic, scarcity-enabled rent-seeking in the form of, e.g., exclusive deals that benefit one competitor among the many?

–andrew

Same goes for you, Andrew. Thanks for your reply. But I think your parry of the moral equivalency argument actually fails to dispel it. Given the technical equivalency of Chinese censorship and U.S. ISPs' network management, a person recognizing the moral distinctions would say: “If it bothers you that the China government does it, it should NOT bother you when your cable company does it.” This is because the purpose when China does it is oppressive and morally wrong. The purpose when ISPs do it is customer service which is morally right (if poorly directed in rare instances).

Some disagree, but I think (as does Tim Lee – read his paper) that neutrality is a good architectural principle that should generally be maintained. But the better enforcement mechanism is to have engineers — driven by ISP owners who are driven by Internet users — maintain the networks.

You obscure the key point when you characterize the project as “establish[ing] principles by which we can bless essential network management techniques.” Who is “we”? If by “we” you mean the government, that's one side of the debate. If by “we” you mean consumers, that's the other side. The search for a line between good and bad network management is not the key issue.

The key issue is whether the U.S. government will manage networks or whether the private sector will manage networks. Everyone would hope that the U.S. government would do a good job of it and would be more beneficent than the Chinese government, but the regulatory process has not proven to be foresighted and nimble in the past, and times can and do change. U.S. government control of networks could prove to be a ghastly mistake in our unknown future.

Engineers working for consumers will do a better job of running networks. Insulating networks from government control is good civic hygiene. It's wrong to build technical infrastructure that is amenable to totalitarianism, and your comments reveal that government network neutrality regulation is a step in that direction.

Thanks again for your reply. Please stay curious and willing to learn. Most people in your position abandon curiosity, thinking that by dint of role their job is to teach, to manipulate if needed, and, when the chips fall, to dictate.

(P.S. Trekkie geek!)

Rather, my point was about the implications of technical equivalence. In other words, the techniques of network-level content filtering are the same (more or less, depending on implementation) whether the ISP is doing political censorship, or reasonable traffic management. That's why the FCC's current inquiry is so important — to establish principles by which we can bless essential network management techniques while disallowing those that would damage competition, innovation, and users' freedom of expression.

What's interesting about this debate is the way all sides seem to agree about the edge cases (it would be bad for ISPs to restrict website access based on content; it would also be bad if ISPs couldn't reasonably manage their networks), but disagree about where precisely to draw the line. In that situation, one would expect the debate to converge around the details, but instead we keep seeing different sides rush joyously to tear down cartoonish straw men (like, ahem, nonexistent “moral equivalency” claims). The real meat of this debate, IMHO, lies in the detailed questions posed the FCC.

Happy Thanksgiving! (And all power to shields, Mr. Scott!)

–andrew

Further, in the US, government investment has led development of much of our current internet infrastructure. The implicit deal is `we subsidize the rollout; you provide internet access'. If those companies then provide materially censored or limited internet access, they are effectively reneging on that deal, despite their ostensibly private status.

“McLaughlin has it backwards. The First Amendment protects even bad business decisions from interference by the government. “Free speech” doesn’t underlie the open network. Rather, it restricts the FCC from telling access providers what content they can or cannot promote or block.

Thank goodness it does. Because there’s absolutely no doubt what the government would do if it had that power. In the last ten years, administrations under both Republican and Democratic control have passed three different laws banning “indecent” content from appearing on the Internet. (President Clinton signed the first and worst of these, “The Communications Decency Act.”) State governments have tried even more offensive “experiments” with controlling Internet content…

The Supreme Court rejected two of the federal laws as violations of the First Amendment; the third was narrowly upheld as a restriction on libraries accepting government funding. The FCC, meanwhile, still relishes its narrowly-allowed content control powers over broadcast television to ensure errant nipples and swear words don’t appear on live broadcasts.

It’s more than a little ironic that the White House is accusing cable companies of Chinese-style censorship for twice blocking bandwidth-hogging peer-to-peer applications. All the evidence we have is that it is the government that would have done the real damage to the free flow of information on the Internet. Would have, that is, if they hadn’t been blocked by the First Amendment.”