Internet

Demystifying Net Neutrality

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In a write-up following a debate with Chris Riley of the pro-Net neutrality group, Free Press, the Progress and Freedom Foundation's Barbara Esbin succinctly captures the essence of the Net neutrality debate:

I argued, as I have in the past, that net neutrality remains a solution in search of a problem, and Riley argued, as Free Press has, that it is required to ensure a fair and open Internet. In my presentation, I focused on the lack of evidence of a market problem or consumer harms to be redressed by this regulatory remedy; the FCC's lack of "ancillary" jurisdiction to impose the proposed net neutrality mandates; and the possibility that the rules would be found to infringe on the First Amendment rights of broadband Internet service provider. Similarly, Riley, in his presentation, argued that broadband ISPs have the incentive and ability to engage in harmful discrimination in the carriage of Internet traffic; that we should not permit ISPs unbounded discretion to decide what traffic gets priority treatment; that the government need not wait for harm to occur but may be proactive in protecting consumers and competition; and that net neutrality would protect the free speech rights of consumers, as Free Press has maintained.

Interestingly, one area where both Esbin and Riley agreed was on the issue of "unbounded agency authority"—ie: regulatory overreach—which both agreed presented a problem. Given the FCC's history of power grabs and the new chairman's declared intention to institute a case-by-case, I-know-it-when-I-see-it standard for neutrality violations, I certainly agree. Of course, as Esbin points out, despite agreement on the existence of a potential problem, the two sides have wildly differing ideas about how to restrain the FCC:

Our remedies for the problem of unbounded agency are quite different. Riley argues that the FCC needs to adopt strict non-discrimination rules to avoid the problem of a later FCC deciding, in its unbounded discretion, that a practice like that engaged in by Comcast in the infamous Le Affair BitTorrent is in fact a form of reasonable discrimination. My solution is that the FCC stick to exercising the regulatory authority that Congress has explicitly delegated to it over common carriers, television and radio broadcasters, and cable service providers without extending its reach to improbable lengths by resort to the amorphous doctrine of implicit or ancillary jurisdiction, and that Congress determine whether and how the government can best preserve the "open Internet."

The choice offered here is between clearly defining a new FCC power in advance in hopes of preventing abuse and refusing to give it a new power altogether. As ways to limit FCC overreach go, it strikes me that the latter offers a far more robust protection.

I wrote about the war over Net neutrality here.

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  1. It ain’t broke.
    So don’t fix it.

    1. Don’t just do something.
      Stand there!

    2. Why wait for problems to occur before legislating? And on that note, i’d like to propose my bill restricting immigration to planet earth by extra terrestrials.

        1. Whew. Now i can sleep easy.

      1. Speaking of new laws, where the hell was I working on that federal spending limit stuff last night? Writing staff, where were we?

      2. Think “The Science is settled!”

        I’m a big fan of minimalism. I’ve also been surfing the web for nearly 17 years. In all that time it has only gotten better. My original post —

        It ain’t broke.
        So don’t fix it.

        — doesn’t mean that at some point maybe we’ll have to address a concern or two, but I am not a fan of being alarmed into unnecessary action by a Federal agency looking to grab more power.

        Fuck the God Damn State.

        1. I was pulling a serbian-jew-doublebluff. You’ll get no (serious) argument from me.

  2. The choice offered here is between clearly defining a new FCC power in advance in hopes of preventing abuse and refusing to give it a new power altogether. As ways to limit FCC overreach go, it strikes me that the latter offers a far more robust protection.

    What say we just abolish the FCC?

  3. I’m a little surprised that the net neutrality advocates have chosen to view this issue through the lens of protecting the “equal rights” of content providers to push content out to consumers over broadband.

    Really, the way to go here is to frame it as establishing an “equal right” of consumers to receive content over the last few miles of cable.

    Every last cable company out there has, in most jurisdictions, a government-granted operational monopoly. Those monopolies make them extremely vulnerable to punitive regulation. No new authority is needed here, unless net neutrality advocates are just too lazy to fuck the cable companies one charter at a time.

    1. Best comment I’ve read about Net Neutrality, ever.

    2. Every last cable company out there has, in most jurisdictions

      Change midstream?

    3. And the reason the net neutrality people dont push this is they also want it to apply to DSL operators. Which, in many places, is already competitive as they require the local phone company to provide the last mile to any of the companies that want to offer service over them (There are at least a 1/2 dozen, and probably dozens that are too small for me to know about, offering DSL in my area).

  4. “My solution is that the FCC stick to exercising the regulatory authority that Congress has explicitly delegated to it over common carriers, television and radio broadcasters, and cable service providers”

    I tend to agree that ISPs should be treated as common carriers, with all that implies. That’s really as far net neutrality needs to go. Since there’s ample tradition behind common carrier laws and regulation, there’s less room for someone good intentions and massive hubris to open the floodgates to censorship, corruption, or worse.

    If you want to balance out the regulatory aspect (and sweeten the pill for telcos), you could push the content aspects that lie over IP (VOIP, IPTV) out of common carrier status, so long as IP itself is common carrier.

    1. I think you need to back up and think about why cable companies and broadcasters are regulated.

      It has to do with the fact they have government-granted exclusive licenses.

      ISPs? Not so much.

      1. I’m pretty sure most people get net service through telcos or cable companies. At the very least, those are the ones people talking about net neutrality are worried about.

  5. yeah because the government is so good at keeping things “fair and open”!

  6. Similarly, Riley, in his presentation, argued that broadband ISPs have the incentive and ability to engage in harmful discrimination in the carriage of Internet traffic

    See, this is what I love about lefties – they believe that vague and touchy-feely terms can pass for logical arguments.

    What’s harmful?

    that we should not permit ISPs unbounded discretion to decide what traffic gets priority treatment

    Sorta like not allowing theather owners’ “unbound” discretion (manifested in the form of admission fees) get in the way of allowing anybody in through the Exit door.

    […]that the government need not wait for harm to occur but may be proactive in protecting consumers and competition

    Now we’re in Minority Report territory: the government as soothsayers and mind readers.

    and that net neutrality would protect the free speech rights of consumers, as Free Press has maintained.

    Yeah, way to go, “Free Press” . . .

  7. Here is an article that looks at a non-neutral net.

    http://arstechnica.com/telecom…..-of-it.ars

    Regards

    Joe Dokes

  8. Unless the government is going to stop giving monopolies to ISPs in given areas, Net Neutrality is a reasonable alternative. Otherwise it’s basically government sponsored censorship, albeit by proxy.

    1. SugarFree, your student knows your ways too well!

  9. As much as I absolutely love my “unlimited” net access, I think the best way to solve this (if it becomes a problem) is to charge data rates based on metered consumption similar to other utilities. ISPs would then have no valid reason* to throttle certain protocals (such as bittorrent). Since I don’t want it subsidized by the government, they would have to stop granting monopolies to ISPs in order to allow market forces to bring down the price (and to keep them from throttling packets due to political pressure and/or pressure from rent-seeking plastic-disk makers). Since I can think of no way in which this would either increase beauracratic power or funnel money to bloated companies with pet congresscritters, it obviously will never be considered. I guess I’ll just have to be content to download as much as possible until the point my “unlimited” data plan is finally downgraded to 10MB a month via legaleese judo.

    *Though there is much to be skeptical about reguarding their “bandwith hog” claims (which are most likely being used to force metered access while retaining their monopolies), that is a much longer conversation.

    1. As much as I absolutely love my “unlimited” net access, I think the best way to solve this (if it becomes a problem) is to charge data rates based on metered consumption similar to other utilities.

      My FUCKING God, what the hell is wrong with letting the PROVIDOR offer that option if they like and take the government (and you) the hell out of it?

      No, that is not what that additional claptrap you wrote means.

      1. No, that is not what that additional claptrap you wrote means.

        Actually, that’s exactly what it means, at least part of it. I was addressing both protocol and content filtering by companies currently operating under government-granted monopolies, and giving a possible method in which to ease the service into deregulation while minimizing the chances of the MPAA/RIAA or any of the other interested parties throwing a monkey wrench into the works. Every action towards deregulation has a counter move from one or more interested parties (a little research would go a long way, try techdirt.com). Metering the service like any other utility jumps several of their blocking actions, and gets us closer towards that goal.

        But let’s not let that get in the way of an opportunity for you to use your fucking caps lock key.

        Obviously an open market provides the most choice. If it was in my power, I’d tear it all down and start over. I was proposing a way to get there (or at least closer) within the current structure. Was it perfect? No. For one thing, I couldn’t think of a way to get the congresscritters along for the ride. If you have anything constructive along those lines I would love to hear it. But if all you’ve got is snark and platitudes (“LOOK at ME. I’m a LIBERTARIAN”), then fuck off.

    2. Or, you know, allow competition to spur innovation.

      I get my 25/25 MB *residential* FIOS connection from Verizon tomorrow. It will cost me $15/month more than my original 10/2 FIOS connection.

      Comcast’s Xfinity’s bandwidth woes affect me not.

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