I fight authority, Authority always wins

I been doing it since I was a young kid

I come out grinnin’

I fight authority, Authority always wins

– John Cougar Mellencamp, “Authority Song”

Our friend and strong Net neutrality proponent Harold Feld is out with this ringing endorsement of the FCC’s existing legal authority to protect consumers’ online rights. Good for him, though we’d add that we’ve been making much the same “existing protections” argument for two years. (See here, here and especially here.)

Still, for two reasons, the more attention on this issue, the better. First, it totally undercuts the hypothetical horror stories that some Net neutrality advocates have pushed to justify a new law. Remember the refrain about Net users finding their favorite website deliberately degraded? By Feld’s own analysis, if such a thing happened, regulators and the courts already have the tools necessary to put a quick stop to it.

Second, once there’s agreement that Net users already are protected by enforceable federal rules, the whole rationale for new rules explodes. That’s when the Net neutrality debate shifts to the real issue – pushing deployment costs away from large content companies and onto consumers.

So whether you choose to believe us or Harold Feld or the FCC Chairman, the fact remains that Net users have and will continue to enjoy an open Web for years to come.

Law professor Susan Crawford just posted a lengthy legal and historical analysis on the differences between “information” and “telecommunications” services.

Two points:

1. First, in one sense, her essay is ruefully amusing since it’s all about the difficulty of keeping regulations current as technology changes. But that’s precisely the issue with Net neutrality!

   Yes, Congress or the FCC can make arbitrary distinctions about application-specific programming but if the Internet’s history teaches anything, it’s that today’s clear distinctions quickly become tomorrow’s confusing red tape. The result: litigation and uncertain deployment.

2. Second, Prof. Crawford makes a completely unfounded statement at the end that network providers have “no legal constraint on their ability to discriminate against particular uses of their networks.” This is flat-out absurd. As we’ve pointed out numerous times, Net users enjoy substantive consumer protection through unfair competition law, antitrust law, and multiple common law tort theories — and of course, the power of the marketplace.

Even Amazon’s point person for Net neutrality has conceded that Title I of the Communications Act of 1934 gives the FCC power to take regulatory action if presented with unfair business tactics by broadband providers.

While we were enjoying the beach last weekend, tech genius Richard Bennett noticed what looks like a fatal flaw with the Max Planck Institute’s Glasnost test. We’ll leave the engineering issues to Messers. Bennett and Ou but at a minimum, Bennett’s discovery should put to rest the Google-inspired idea that Net neutrality requires merely a “light touch” of FCC regulation.

Oh yes, and it will be fun to see if the Net neutrality advocates start to tip-toe away from their quick embrace of the Glasnost findings.

At least in this case, what happens in Vegas shouldn’t stay in Vegas:

“Net neutrality” is a solution in search of a problem. The Internet has delivered magnificent new opportunities to Americans precisely because it has been left free to develop with minimal government interference. Let’s leave it that way.

“Keep Congress Away from the Internet” (Editorial)
Las Vegas Review-Journal
May 22, 2008

For the whole Review-Journal editorial, click here.

Hands Off The Internet has a letter in today’s New York Times.

To the Editor:

Your May 19 editorial “Democracy and the Web” argues for broad new federal regulation of the Internet — a first in Internet history.

You say that “if Internet service providers started discriminating among content to make more money or to suppress ideas they do not like,” users will suffer. What you overlook is that there already are laws and regulators poised to deal with any such hypothetical problems.

Moreover, the first-time ever federal control of the Internet “pipes” inevitably will hinder the network management (and build-out) needed to handle the torrent of new video and other data-rich traffic flooding the Internet. Users (and democracy) then will really suffer when they face higher costs or limited service, or both.

Federal control and dumb pipes are not the answer to our broadband needs, especially when the alleged basis of the new laws is speculation.

Mike McCurry
Christopher Wolf
Co-chairmen
Hands Off the Internet
Washington, May 19, 2008

In case you missed it, The Wall Street Journal just weighed in on the Comcast-BitTorrent resolution. You can read the whole thing here but this line is the clincher:

Government’s role here, properly understood, is not to tell Comcast how to manage its network. Rather, it is to make sure consumers have alternatives to Comcast if they are unhappy with their Internet service.

When you hear the Net Neutrality folks claim that America is lagging the world in broadband adoption, remember this.

So what’s driving America’s progress in broadband deployment? For starters, the continued flood of broadband investment ($24 billion this year alone, according to the TIA) and the rapid deployment of “smart” networking technology are obviously having an impact.

Equally important, look at one of the key issues driving this investment: federal regulations don’t hamstring emerging technology. But with Net neutrality undermining that restraint, it also threatens the country’s progress in deploying affordable new broadband.

Yes, there’s much more to be done but as the Insead report shows, a light touch regulation is one of the factors that can help keep us on the right track

At a Congressional hearing on Net Neutrality back in 2006, proponents couldn’t get their answers straight when asked to define the concept. Two years later, evidently not much has changed:

Jonathan Rintels writes this week at SaveTheInternet that Net Neutrality is “a requirement that broadband Internet consumers be permitted to access the lawful content of their choice.” We agree. But if that’s the definition, then this Net Neutrality fight is over since consumers already have that right.

Google blogged a different approach recently, saying that prioritizing some types of traffic over others is completely consistent with Net Neutrality – a comment at odds with the “all data is equal” crowd. Though it’s correct about that, Google’s problem is its position that Net users, not the company, should pick up the tab for the new pipes that need to be built to handle its video content.

Then there’s Net Neutrality advocate Susan Crawford, who testified on the Hill last week. She’s argued that content-based regulation couldn’t be done without “a heavy handed regulator.” (She’s right.) So that’s why Net Neutrality requires government policies “separating transport from other activities, and separating access from backbone and backhaul transport….”

Net Neutrality advocates can help clear up the confusion by acknowledging at least this: Writing the regulations that would govern how data traffic travels across the Internet will give an army of Washington lawyers and lobbyists a lifetime guarantee of full employment.