Herman on the Wait-and-See Strategy

I’m going to wrap up my series on Bill Herman’s paper by considering his response to counter-arguments against new regulations. I think he has the better of the argument on two of the criticisms (“network congestion” and “network diversity”), so I’ll leave those alone, but I disagree with his other two criticisms. Here’s the first, which he dubs the “better wait and see” argument:

Several opponents of network neutrality believe that the best approach is to wait and see. They are genuinely scared of broadband discrimination, but they would rather regulate after the situation has evolved further. The alleged disadvantage is that regulating now removes the chance to create better regulation later, and it accrues the unforeseen consequences described below. Felten provides a particularly visible and eloquent example of this argument. He agrees that neutrality is generally desirable as an engineering principle, but he wishes the threat of regulation could indefinitely continue to deter discrimination.

Unfortunately, the threat of regulation cannot indefinitely postpone the need for actual regulation. In the U.S. political system, most policy topics at most times will be of interest to a small number of policymakers, such as those on a relevant Congressional subcommittee or regulatory commission. This leads to periods of extended policy stability. Yet, as Baumgartner and Jones explain, this “stability is punctuated with periods of volatile change” in a given policy domain. One major source of change, they argue, is “an appeal by the disfavored side in a policy subsystem, or those excluded entirely from the arrangement, to broader political processes–Congress, the president, political parties, and public opinion.”

A key variable in the process is attention. Human attention serves as a bottleneck on policy action, and institutional constraints further tighten the bottleneck. Specialized venues such as the FCC will be able to follow most of the issues under their supervision with adequate attention, but most of the time the “broader political processes” pay no attention to those issues.

As I’ll explain below the fold, I think this dramatically underestimates the success that the pro-neutrality side has had in raising the profile of this issue.

The idea here is that the public is focused on this issue now because the political and legislative stars are aligned, but that once a new telecom bill is passed, public attention will wane and no more opportunities will present themselves. Ordinarily, I would think this is a pretty good argument, but it ignores the success that the pro-regulation side has had in enshrining the idea of a neutral Internet in the public imagination. I’ve had several friends and relatives who ordinarily pay no attention at all to telecom policy ask me to explain this network neutrality issue to them. Moreover, the pro-regulation side has gotten many of their opponents on record saying that the most harmful kinds of discrimination, such as blocking disfavored services outright, are not appropriate.

And they’ve managed to do this at a time when discrimination is an almost entirely hypothetical problem. Which suggests, I think, that the groundwork has been laid for a resurgence of activism if a telco engages in egregious network discrimination. The Do Not Call issue is a good example here: that wasn’t anywhere on Congress’s radar screen, but when a court struck down the concept as exceeding the FTC and FCC’s authority, Congress swung into action and passed enabling legislation.

It seems likely that if any of the horror stories discussed here were to happen; if, say, Comcast were to start blocking websites based on their content, the public backlash would be intense enough to spur Congress to action regardless of whether the political stars were otherwise aligned. So while it’s possible that mild encroachments of the end-to-end principle could be snuck through without public notice, major violations of the principle seem unlikely.

This strikes me as especially implausible:

If network neutrality fails to become law, nonprofit, educational, and
citizen groups–those who have led the call for network neutrality–will all
lose some degree of communication power on the tiered Internet. This will
erode their collective ability to make the call for reform in the future. If
network neutrality is the right policy, the time to strike is now.243 Without
strong neutrality mandates, the Internet will be profoundly different by the
time there is enough public attention to force the issue again–if that day
ever returns.

I’m struggling to come up with any plausible scenario in which non-profit groups lose “some degree of communication power” on the Internet. As I’ve argued before, it’s wildly implausible that a telco would start engaging in widespread censorship of websites based on their content. And if anything, such efforts would raise the profile of the sites targeted and galvanize the movement for new regulations. Nothing drives a movement forward like a sense of persecution.

In my final post I’ll consider Herman’s response to my regulatory capture arguments.

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