Demystifying Net Neutrality


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.