The mere announcement of an FCC hearing on “broadband network
management practices” was a notch in the gun of network neutrality
advocates. The achievement was reinforced by the line-up at Harvard
University’s law school today. The Comcasts and Verizons were
outnumbered and outmaneuvered by the left wing of the network
neutrality movement, which included such leading lights as Yochai
Benkler, David P. Reed, and the honorary host of the event,
Representative Edward Markey, who heads the House’s Subcommittee on
Telecommunications and the Internet.
Yet to a large extent, the panelists and speakers were like
petitioners who are denied access to the king and can only bring their
complaints to the gardeners who decorate the paths outside his gate. I
believe that the FCC commissioners see distinct limits to what they
can accomplish, and that their compromise will come out much closer to
the current practices of the Comcasts and Verizons than to the more
idealistic calls for an Internet that we should have had seven or
eight years ago.
I feel a natural pull toward network neutrality, which I knew for many
years in slightly different versions and different terms (common
carriage, the layered protocol stack, the end-to-end principle, the
stupid network) before the current buzzword emerged. But I soon
realized that the subject was a thornbush from which it is hard to
untangle a solution, and wrote a major
analysis two years ago
that I really think still stands as an accurate representation of the
But where do industries, the public, and the government stand today?
That’s what I’ll explain in this article. I’ll drill down tomorrow in
another article about some interesting details at the hearing.
Format of the event
Today’s hearing was the first event in a stated policy by the FCC to
get “outside the Beltway” and go before citizenry around the
country. If bringing the FCC to us contributes less of a carbon
footprint than bringing us to the FCC, I’m all for it, but I
personally didn’t get much more of thrill than when I saw a live
webcast of the Senate’s
network neutrality hearings
two years ago.
Still, I appreciate the commissioners’ willingness to appear before an
audience of hundreds, and I thank them along with the Harvard Law
School and Markey’s office for organizing this event. With my praise
echoing in your ears, I have to note three missteps I think the
The first was to hold the hearing in Harvard Law School’s Ames
auditorium instead of the FleetCenter sports arena, which would have
been more suited to the size of the crowd as well as the emotional
mood of the attendees.
The second misstep was to change the date at the last moment, which
made it hard for people such as me (who arranged my schedule around
the event) to attend the whole thing.
The third was the format. As I mentioned at the start, the line-up was
slanted toward network neutrality advocates. It made me suspect that
this public hearing was a sop to these idealists, and a
counter-balance to the actual policy that the FCC will adopt.
But the line-up at any hearing is always a stunted representation of
the range of creative ideas on a topic, just as presidential campaigns
are. Benkler, for instance, has tremendous vision and gave a
stunningly eloquent presentation of his view of the Internet’s future,
but he still represents just one branch of a very bushy movement that
I’ll categorize a bit later.
(who also had a panelist) set up a studio in the Law School to take
testimony from any and all comers. The results will no doubt be a
YouTube of network neutrality. I’m sure there is much in the
recordings that is insightful, heartfelt, and stimulating, but the
gems will be hard to pick out and organize coherently. Isn’t it time
to use available technology to organize public input in some rational
way that’s more diverse and representative than hand-picked panelists
but more useful than a barrel of impetuous commentary?
Broadband network management practices–the subject of today’s
hearings–have an impact far beyond the number of bits in the network
mask used to route IP packets. Issues on which the hearings focused
The “four freedoms” of telecommunications, inspired by Richard
four software freedoms
and enunciated by none other than Michael Powell, the chair who
redirected the FCC along its current free-market path. Powell’s
freedoms are the right (within the limits of the law) to access any
content of your choice, to use any applications of your choice, to
attach any devices of your choice, and to understand the parameters of
the network service you receive.
The future of innovation in Internet applications, services, and
The attainment of bandwidth that is ten or a hundred times the current
standards, an increase we need for today’s Internet applications and
that are being achieved in several other developed nations.
Open content, which can promote democracy and provide alternatives to
an ever more concentrated mainstream media. In this regard, it is not
irrelevant that the FCC has permitted far greater cross-ownership in
the media than before, and that the NAACP organized a protest about
the decreasing racial diversity of mainstream media at today’s
hearing. (On the other hand, Verizon is a corporate sponsor of the
NAACP. You make your alliances where you have to.)
Within the parameters suggested by Powell’s four freedoms (not to
mention the 1996 Telecom Act), three different points of view have
emerged in the network neutrality debate.
The large Internet providers, limited in the money they are willing or
able to spend to increase bandwidth, want leeway to control traffic
toward two ends: to balance out current bandwidth, and to generate
extra revenue that they claim they will spend to add bandwidth.
Balancing out current bandwidth is the less noxious goal, and one
companies would probably try to apply lightly in order to keep all
customers as happy as possible. Comcast’s infamous restrictions on
peer-to-peer traffic, which many critics claim to be a monopolistic
blow against video downloads that compete with Comcast’s cable
offerings, are probably an outlier case.
But such traffic shaping still has the unintended consequence of
introducing distortions into the choices made by those who offer or
consume network services. As law professor Timothy Wu pointed out on
one of today’s panels, investors would be reluctant to fund innovative
Internet companies if their services could be choked off unexpectedly.
Generating extra revenue is even more alarming, because here the
vendors are playing favorites. There is also no guarantee that they
would actually use the money they skim off the top to fund higher
bandwidth. (Why would they?)
On the other side of the debate, observers have actually gone beyond
network neutrality. It is now seen as a stop-gap at best, and more
often a distraction from the real goal of increased competition.
Some advocates want to nationalize the physical network or build out
new networks with government funding; some want to leave the network
in its current hands but strip the incumbent companies of all their
higher-level services so they have no incentive to discriminate. And
yet others want to amend interconnection rules and beef up enforcement
of rules against discrimination so that new competitors arise
As I said before, this competitive, high-speed Internet is what we
should have had seven or eight years ago, and I’ll explore that in
But what we’ll end up getting is the third stance, which FCC
commissioner Michael J. Copps described in his opening comments: a
formal endorsement of non-discrimination as a policy that Internet
providers must follow, leading to continual FCC review of current
practices by telecom and cable companies in order to build up, over
time, a collection of case law that can ensure fair access without
altering the basic ownership of the physical network.
Benkler argued strenuously against this continual fussing and fixing,
but after years of actions in favor of the incumbent operators, the
FCC can’t do much more.
This is the essential message I took away today about the current
state of Internet policy and the relative positions of the major
players. To some extent, the rest is all rhetoric, but I’ll go into