Will Net Neutrality Cure Comcast?

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his weekend, Comcast, after fixing one inexplicable problem with my home's on-demand service over the phone, sent a service tech out to look at the TiVo in my living room. He spent a lot of time on the phone with someone who I'm pretty sure was a Comcast tech but may have been a friend or family member, mumbled a lot, and walked in and out of the house without explaining what he was doing. Eventually, he left without fixing the problem, saying only that Comcast would call to schedule a further appointment with an "elite" tech by the end of day, and that I should be prepared for the possibility that it might just be that my TiVo, at just a year and a half old, is too old for their most recent upgrade. Needless to say, Comcast has yet to call to schedule that next appointment.

Why do I bring this up? Because Comcast is a key player in the debate over net neutrality, and it's important for those of us who're skeptical of mandated neutrality to be open about the failures in the ISP market. The broadband market has advanced with remarkable speed in the U.S.—just a decade ago, it was rare to have broadband in homes; now it's common—but is not some sort of high-speed utopia.

On the other hand, when neutrality advocates like Jeffrey Rosen treat Comcast as some sort of monopolist, they're wildly exaggerating the problem:

This problem is especially acute in the United States because of our lack of competition among broadband companies in most markets. In many towns, Comcast (or its regional equivalent) is the only plausible supplier of broadband.

It's probably true that there are a handful of rural localities in the U.S. where Comcast is effectively the only option. But FCC data shows that 98 percent of zip codes have at least two broadband providers and 88 percent of zip codes have four or more broadband providers. Competition isn't perfect, but it's a lot stronger than people think.

Rosen is worried that Comcast, as a monopolist, might start, say, charging for access to Facebook, or blocking Verizon's websites. But even if you agree that Comcast is a monopolist, why try to fix the problem through regulation when it might be resolved through competition?

Franchise reform, which would make it far easier for broadband providers to enter new markets, would go a long way to doing that. In Texas, reform has already led to significant improvements, provoking consumer reactions like the following: "The company that had a monopoly had lousy services until competition came, and then they improved their services." Imagine that!

Rosen also takes issue with Comcast's throttling of Bittorrent file-sharing software:

Two years ago, Comcast, America's second-largest high-speed Internet provider, blocked BitTorrent, a popular peer-to-peer file-sharing application that could be used to distribute (among many other things) high-definition TV video that would compete with Comcast's video services. The obstruction was discovered by an amateur singer who wanted to share public domain performances of barbershop quartets with his fellow aficionados. After initially denying that it was blocking BitTorrent, Comcast, which was literally denying access to the King James Bible, claimed that it wasn't blocking the file-sharing application, but merely delaying it to conserve bandwidth as part of "reasonable network management." The Comcast case is a model for the free-speech battles of the future, where Internet and wireless providers may want to favor certain content providers over others in order to maximize profits at the expense of consumer choice.

This is, indeed, a problem. But it's a problem has a lot less to do with net neutrality and lot more with honest business practices. It's one thing for Comcast to limit usage of certain application—it's quite another for them to deny doing so. But again, neutrality doesn't seem like much of a solution. The fix is to make sure that Comcast clearly discloses the limits of the service it offers—not force into a predetermined network management scheme.

Rosen also doles out silly bits like this:

You might think that a decision to block the King James Bible would violate the First Amendment, or at least raise important constitutional concerns. But, if Comcast, a private company, is blocking a particular technology, rather than discriminating against particular speakers, there's no state action and no obvious peg for a First Amendment lawsuit.

Well, no, you wouldn't think that, and the only reason to bring this up at all is to cast Comcast in an ominous light. Just as Wal-Mart can throw out a guy who walks in wearing a sandwich board with the words FUCK GOD scrawled on it, network owners can limit or decline to service certain applications. That's how private property works.

Indeed, the biggest neutrality controversy going right now is whether or not wireless data providers—the folks who provide mobile Internet to your iPhone or Blackberry—will be subject to neutrality regulations. In particular, there's been uproar over Apple's decision to block the Google Voice application from its iPhone app store. But again, the Wal-Mart analogy applies. Just as it would be unreasonable to force Wal-Mart to carry every brand or type of good that someone submits, it's unreasonable to expect the same from the Apple store. I'd even agree with Jerry Brito that selectivity can be a good thing, as it suggests carefulness and diligence.

So I'm with neutrality advocates when they complain about crappy ISPs like Comcast, and I'm happy to require Comcast to fully disclose its network management practices, as they now seem to do. But net neutrality, I think, is hardly the best way to resolve these issues; as others have said before, it's a solution in search of a problem.

I wrote about the new FCC chairman's latest bid to expand net neutrality here, and predicted that neutrality advocates were preparing to go after wireless networks here.

Update: Julian Sanchez takes me to task for using sketchy FCC data about broadband competition, which he says is seriously misleading. I actually think the presence of half-decent 3G could help keep faster ISPs honest, at least in some cases, but fair enough. Even still, I don't think we ought to set policy under the assumption that Internet service is an essentially monopolistic business. Instead, we ought to look for ways to free up markets to increase competition. And, as Sanchez says, we ought to be cautious about how regulations might affect future circumstances: "With 4G rollouts on the horizon, we may actually get adequate broadband competition in the near-to-medium term, and might want to be wary about rushing into regulatory solutions that not only assume the status quo, but could plausibly help entrench it."