September 2007

Lauren Weinstein wrote a post on his blog this weekend entitled Detecting and Proving Network Neutrality Violations. The basic thesis: “Without an appropriately broad infrastructure to collect and process metrics associated with network neutrality, it is difficult to understand how anyone can reasonably assert that we would know if and when violations were taking place . . . .”

Undoubtedly. And such an infrastructure should be built in tandem with give-and-take about what consumers most want and need in terms of broadband Internet access services. That is, we need to know what “violates” net neutrality – or, if some non-neutral broadband network serves consumers better – what violates the rules for that network.

Weinstein challenges: “Not even the anti-neutrality folks should be able to logically argue against what might be termed a ‘trust, but verify’ approach.” (I’ll take “anti-neutrality folks” as a careless formulation meaning “opponents of net neutrality regulation” – and accept the challenge.)

I think Weinstein is correct in this. The community of Internet users should run a network of monitors to determine when ISPs are deviating from their Terms of Service and customer expectations, including expectations with regard to neutrality (or non-neutrality), along with all the other dimensions of Internet access service that matter.

Given that the Internet is a communications medium, that community is well-equipped to name, shame, and punish violators of consumer interests and demands. Government regulations that freeze network design in law would focus all the discussion on legal and regulatory mandates, not the best network design, or the true interests of Internet users.

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This week the Federal Communications Commission failed to muster 3 votes to deregulate the broadband access services of Qwest Communications, as it has already done for Verizon in early 2006. The nature of the relief we’re talking about is analogous to the commission’s reclassification of DSL as an “information” service rather than a “telecommunications” service in 2005. In both cases, the effect is to free broadband providers from onerous common carrier regulation, allow them to tailor their offerings to customer needs and not be forced to offer their services to competitors at regulated, cost-based rates for resale.

To be fair, the relief Verizon got didn’t garner 3 of 5 votes. Verizon’s petition was filed pursuant to Sec. 10 of the Communications Act, which provides that a forbearance petition (a petition which asks the FCC to forbear from applying a regulation) will be granted automatically unless the commission denies it for good reason within one year plus a 90-day extension. That didn’t happen, so Verizon’s petition was granted automatically. This procedure may not sound like an ideal way to conduct public business, but Congress enacted Sec. 10 because of a long history of FCC foot-dragging. The commission is a political animal, and many former staffers are employed by the companies the FCC regulates.

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