Broadband & Neutrality Regulation

[A guest post from Tim Wu]

Well its always fun to have two people you respect read your work and such is the case with Tim and Adam, though to be honest I probably enjoyed Tim’s analysis a little more.

Adam’s reaction is too strong, and doesn’t really get at the main points in the op-ed. The main point was this: that bandwidth has become an essential input in an economy that depends heavily on moving information. For that reason we must gain a sensitivity to the issues of supply and demand surrounding it. If anyone disagrees with that, I’d love to hear why.

I use the comparison to gas and energy because we all know that when gas prices go up or down, large parts of the economy are affected, from tourism through, say, bowling alleys. What I am saying is that bandwidth may have a similar nature: that if prices are high, it effects all of the information-related markets in interesting ways, from startup video services through google. It is still early in the age of the internet economy, so this may be less obvious at this point.

If you agree with this, you must care about industry structure and government’s role in suppressing or helping competition in that market.

Meanwhile, while the OPEC example may be a tad dramatic, harping on the fact that OPEC is comprised of nation-states, as opposed to firms, is a mistake. From an economic perspective, why do we care if it is, say, a worldwide private conspiracy setting prices as opposed to a conspiracy of nation states? The effect on prices is the same whether its four firms setting food prices (like in the 1990s, with the Archer-Daniel Midlands price-setting cases), as opposed to four foreign governments. It is harder to stop the governments, because they rarely respond to lawsuits — but the economic consequences, so long as the price-fixing conspiracy lasts, is no different.

A point made in the comments is also true – which is that telecom tends to be in the realm of state-supported or regulated monopoly, and so there is some confusion as to whether what we are talking about are really private actors in a pure sense. This is a point Hayek made quite well. If government helps create a monopoly, as it has in cable and telephone markets – then being concerned about the consequences of that monopoly makes much sense.

Finally, on Tim Lee’s post – I take much less issue. I’d just like to point out that I am also an advocate of greater propertization as well as more dedication to the commons—its the stuff in the middle I don’t care for. For example, as Tim knows, I would like to see the development of ways for people to own their own fiber connections (homes with Tails). I also believe that, in broad spectrum reform, there should be more propertization of the airwaves. The only silly position, it seems to me, is to maintain on principle that either a commons or private property is of no use whatsoever.

Web Pro News’ Jason Lee Miller seems to think he’s hoisted my colleague Bret Swanson, and The Progress & Freedom Foundation in general, on our own collective  petard.  Bret had responded to Tim Wu’s NYT op-ed by questioning Wu’s argument for developing “alternative supplies of bandwidth” to free us from the tyranny of the OPEC-like broadband cartel:

Unlike natural resources such as oil, which, while abundant, are at some point finite, bandwidth is potentially infinite. The miraculous microcosmic spectrum reuse capabilities of optical fiber and even wireless radiation improve at a rate far faster than any of our macrocosmic machines and minerals. It is far more efficient to move electrons than atoms, and yet more efficient to move photons. Left unfettered, these technologies will continue delivering bandwidth abundance.

Miller suggests that this response to Wu destroys arguments Bret and others at PFF have made against net neutrality regulation–a crusade led by Wu (who taught me Internet law, as it happens):

So what [Swanson is] saying is bandwidth scarcity is a notion invented by internet service providers and wireless providers to jack up prices and provide excuses for interfering with competing services on their networks. Nice. In a weird way, Swanson focuses so hard on disproving Wu’s analogy one way, he misses how the analogy is proved in another: a few organizations (government or not) controlling an important resource and forcing artificial scarcity in order to control the market for that resource is called a cartel.

Miller’s “Gotcha!” rests on the seemingly undeniable premise that broadband can’t be both abundant (as Bret argues) and scarce (such that ISPs must management traffic on their networks, however non-neutral that may be).   But in fact, this seeming contradiction is inherent in the very nature of the Internet–and the way Internet access is currently priced. Continue reading →

…to cover the hearing at which Comcast is expected to be punished for violations of Network Neutrality. Fortunately, the Federal Communications Commission did not start on time. The great thing about the Kevin Martin FCC is that you never have to worry about being late. For example, we’re live at the FCC for the 9:30 a.m. meeting:

The FCC, 9:49 a.m.

The FCC, 9:49 a.m.

I’ll be live-Twittering the event, so check back on DrewClark.com (look at the column on the right – or just go to Twitter and “follow” me) for the latest updates. Later in the day, I’ll be posting a story about the event at BroadbandCensus.com.

FCC Chairman Kevin Martin received a reprimand from the Republican Leader of the House of Representatives, John A. Boehner, based upon reports that Martin plans to side with the commission’s two Democrats on Friday to interfere with the network management decisions of broadband providers in the matter of Comcast delaying the uploading of P2P file sharing when necessary to relieve network congestion:

When a small minority of subscribers – often using these applications to share pirated music and movies – began clogging the networks to the harm of the large majority of users, broadband providers began taking steps to alleviate the congestion. This, in turn, has prompted peer-to-peer developers to collaborate with broadband providers to find better ways to manage traffic.  It is this market-based self-governing nature of the Internet that is the key to its success.  Your heavy-handed attempts to inject the FCC into the middle of that process threaten to hijack the evolution of the Internet to everyone’s detriment.  It will also deter the very broadband investment we need for the Internet to continue growing to meet the increasing demands being placed upon it.

Comcast has already adjusted its policy based upon public reaction and perhaps the threat of regulation.  The question is whether this incident needs to be enshrined in permanent regulation or whether it indicates that the market actually works to protect legitimate consumer interests in the absence of reglation.  I think it’s the latter.

For the FCC commissioners, this is a choice between good politics and good policy.  Good politics would be to hammer Comcast, although that wouldn’t buy popularity for the Bush administration or any of its appointees.  Their enemies are their enemies.  Good policy would be to declare that this matter has been resolved.  Ultimately, appointees of the Bush administration will be judged on their policies, not their politics.

Om Malik has a hot-headed screed on his blog today about the supposed evils of capitalism, full of tales of corporate conspiracies and the such. But I love the way most of his reader have taken him to task for calling on FCC Chairman Kevin Martin to become a true “21st century Robin Hood who is looking out for the U.S. Internet consumer” by “putting an end to this metered broadband nonsense right now.”

Just jump past Om’s irrational rant and go right the really excellent discussion taking place among his readers in the comments. It’s the best discussion I have seen on the issue in a long time.

My last post sparked some interesting discussion about the economics of the Internet. With all due respect to my co-blogger Hance, though, this is precisely the sort of thing I was talking about:

[Tim’s post] unfortunately overlooks the essence of what NN regulation is really about as far as commercial entities are concerned, i.e., profitable online properties don’t want to be asked or obliged to negotiate service agreements with network providers in which they agree to share some of their profits with network providers for the upkeep of the Internet and for the improvement of the overall online experience — just like retailers in a shopping mall share a small percentage of their profits with the landlord.

Bret likewise says that “NN advocates have for several years now wanted to force service providers into one business plan where the end-user pays ALL the costs of the network.” It will surely be news to Eric Schmidtt, Steve Ballmer, and Jerry Yang that they aren’t “obliged to negotiate service agreements with network providers.” In point of fact, Google, Microsoft, Yahoo! and other big service providers pay millions of dollars to their ISPs to help finance the “upkeep of the Internet.” The prices they pay are negotiated in a fully competitive market.

Here’s a thumbnail sketch of how the Internet is structured: it’s made up of thousands of networks of various sizes, with lots and lots of interconnections between them. When two networks decide to interconnect, they typically evaluate their relative sizes. If one network is larger or better-connected than the other, the smaller network will typically pay the larger network for connectivity. If the networks are roughly the same size, they will typically swap traffic on a settlement-free basis. Continue reading →

Customer-Owned Fiber

by on July 30, 2008 · 8 comments

I’ve got a new piece up at Ars Technica that explores the concept of customer-owned fiber. It was inspired by a post by Google’s Derek Slater, who is working with Tim Wu on a paper making the case for customer-owned fiber in more detail.

The structure of today’s telecom market is roughly analogous to a road system in which most peoples’ driveways were owned by a private company. (To make the analogy, you’d have to imagine that most homes have two driveways owned by different companies) If another company owns your driveway, that company has a significant amount of leverage over you. Regulatory proposals like “open access” and “network neutrality” are like taking this system of third-party-owned driveways for granted and trying to use regulatory levers to ensure that companies don’t abuse that power.

But a much better approach may to recognize that the whole setup is screwy: it makes more sense for the owner of a particular piece of property to also own that part of the telecommunications infrastructure that’s exclusive to that property. A world of customer-owned fiber would solve a lot of the thorny policy problems because the barriers to entry in telecommunications markets would be radically lower. Entering the ISP market in a given neighborhood would simply require running a single strand of fiber to that neighborhood’s peering point.

The question is how you get there from here. In the near future, this will no longer be just a theoretical discussion, as a private company in Ottawa recently completed construction of a 400-household fiber network that it plans to sell to local homeowners. The preliminary cost estimate, based on 10 percent take-up, is $2700 per participating home. A higher sign-up rate means a lower cost per home. We’ll know in a few months if that estimate was optimistic or pessimistic.

In my piece, I talk about the economics of fiber rollout and the likely obstacles. I’m skeptical that it can be made to work because the costs are substantial and this is an obstacle with a lot of interia. There is also a group of incumbent companies—not a cartel—who are likely to do everything they can to kill such an effort if it gained momentum. But I think it’s absolutely worth trying, because if it could be made to work, the benefits would be huge.

Over at Techdirt I respectfully disagree with Adam’s broadside against Tim Wu’s “absurd” piece on the broadband cartel.

Tim Wu’s an ideologically savvy guy, and he’s a master at deploying libertarian rhetoric in defense of not-very-libertarian proposals. I get that, and I’m perfectly willing to call him out when he does so. But in other cases, Wu makes arguments that are just straight-forewordly libertarian. For example, I’m finding it hard to detect the hidden socialist message in this passage:

Our current approach is a command and control system dating from the 1920s. The federal government dictates exactly what licensees of the airwaves may do with their part of the spectrum. These Soviet-style rules create waste that is worthy of Brezhnev. Many “owners” of spectrum either hardly use the stuff or use it in highly inefficient ways. At any given moment, more than 90 percent of the nation’s airwaves are empty.

Now, as I say in my Techdirt post, Wu would take this line of reasoning in a somewhat different direction than most of us libertarians would. Wu wants to allocate more spectrum to use as a commons, whereas TLFers would generally like to see it allocated to a system of private ownership. But the op-ed isn’t an argument for spectrum commons, it’s an argument against the FCC’s current command-and-control model.

Even if Wu’s article were a brief for spectrum commons, I think we should remember what Adam so eloquently wrote in 2002:

The intellectual battle between adherents to the property rights and commons models of spectrum governance has been a refreshing telecommunications debate for two reasons. First, at the heart of both models is a desire to promote increased flexibility, innovation, and efficient use of the spectrum resource. More important, both groups generally agree that the current command-and-control system is a complete failure and must be replaced. Indeed, both commons and property rights proponents question the continuing need for the FCC in this process at all. Second, and perhaps because of these preceding points, this war of ideas has not been characterized by the rancor typically witnessed in other telecom industry disputes.

Exactly right. So I hope we can dial down the rancor a couple of notches, acknowledge that Wu makes some valid (even, dare I say it, libertarian) points, and engage the arguments Wu actually makes, rather than trying to ferret out the secret agenda lurking behind his words.

Tim Wu has an absurd piece in today’s New York Times comparing America’s broadband marketplace to OPEC. This really is quite outrageous, beginning with the fact that OPEC is a GOVERNMENT-RUN cartel. Wu also had a comment in the Washington Post today saying that he didn’t think broadband metering was an outrage. Well, that’s nice. I’m happy that we have Tim’s permission to experiment with new business models for financing broadband networks going forward!

This is indicative of what we can expect in the future once Net neutrality laws get on the books: A world of incessant “Mother may I?” permission-based forms of preemptive Internet regulation. Tim and his radical band of regulatory advocates over at Free Press will incessantly petition the FCC to review each and every business model decision and encourage the unelected bureaucrats at the agency to manage the Internet to their heart’s content.

And what does Tim offer for an alternative vision of the way the world should work since he doesn’t believe private markets can handle the job? Well, it’s back to the Big Government drawing board for more tax-spend-and-subsidize solutions! “Amsterdam and some cities in Utah have deployed their own fiber to carry bandwidth as a public utility,” he says. Yeah, that’s the promised land. After all, it’s working out soooooo well at the municipal level. Please.

What Mike Said

by on July 29, 2008 · 10 comments

Sometimes Mike Masnick has posts that are so spot-on that I can’t resist quoting them almost in their entirety:

As you may recall, a few years back, the entertainment industry pushed for the FCC to mandate a broadcast flag that would allow it to define rules for whether or not its content could be recorded by DVRs. The courts rightfully determined that such a mandate was outside the scope of the FCC’s authority. However, an FCC ruling on net neutrality is basically covering identical grounds, yet many of the groups cheering this decision are the same who fought against the Broadcast Flag, claiming the FCC had no mandate. Now, to be clear, the concept of network neutrality is definitely a good thing — but having the FCC suddenly put itself in charge of regulating such things (even if it’s regulating it in a reasonable manner) is really dangerous. Those who are celebrating this decision should be worried about what it means. Specifically, they’re going to have little leg to stand on when the FCC next tries to mandate something outside of its authority (which is almost certainly going to happen in the near future). That doesn’t mean that the apocalyptic predictions from the industry will come true, however. Represented by a positively ridiculous and blatantly silly editorial in the Washington Post by FCC commissioner Robert McDowell, it’s pure rubbish to suggest that this ruling by the FCC means the internet might “grind to a halt” is totally unsubstantiated sensationalism that has been shown time and time and time again to be false. There isn’t a serious bandwidth crunch — and whatever potential crunch may be coming could be dealt with by some modest improvements in infrastructure, not necessarily by breaking network neutrality, which is more of an attempt to double charge for bandwidth than anything else. However, supporters of net neutrality may be making a big mistake in cheering on the FCC as it expands its authority in this area. The FCC has never been about protecting consumer rights, and granting them this authority (which the law appears not to do) opens the door to a lot more trouble down the road.

Lucky for me, Mike isn’t a stickler about enforcing his rights under copyright.