Balkinization  

Thursday, April 27, 2006

The Democratic Case for Network Neutrality

JB

The current fight over network neutrality concerns whether broadband providers (owned or controlled by phone and cable companies) can discriminate between different types of content or sources of content. For example, they might allow content from their favored media partners to move more quickly, or, in some cases, they might filter content. A network neutrality rule would prevent such discrimination among content flowing through the "pipes" owned and operated by these broadband providers.

The reason we are having a fight over network neutrality now is that the government took a wrong turn about five or six years ago, and decided not to require open access by broadband providers. Open access means that phone and cable companies would not be permitted to provide only one ISP (or a chosen few) for their customers. Instead, they would have to open their facilities so that many different ISP's could provide hardware and software services that allow Internet traffic to move along the pipes owned by cable companies and telephone companies. In particular, open access would require cable companies and telephone companies to provide access to the so-called "last mile" between the cable company facilities or telephone exchange facilities and individual homes. The ISP's would connect their Internet services at that point and then route to the Internet backbone; this would allow them to offer an alternative to the Internet services provided by the ISP's chosen (or owned by) the cable company or phone company.

Because the U.S. rejected an open access policy, we now have a duopoly in broadband access in the United States. In most cases, you either get your broadband from the local cable company or the local telephone (DSL) company. Because these companies allow only favored partners to be ISP's and provide Internet connection services, there is less competition among ISP's to provide faster and more efficient broadband services. For example, broadband services could be much faster than they currently are, and we don't have to have the current rules that keep upload speeds (from end user's homes) much lower than download speeds (to their homes).

Perhaps more important, having multiple ISP's to choose from would mean that if cable companies or phone companies tried to discriminate among content or among speakers, they would be countered by ISP's who would offer their customers a non-discrimination policy. Put another way, with a genuine open access rule that did not allow cable and phone companies to discriminate in any way against competing ISP's, network neutrality might not even be necessary. It's possible that both rules are necessary, but if I had to choose between them, I'd pick open access first.

Thus, the demand for network neutrality arises because there is no competition to force cable companies and telephone companies to behave themselves properly. Having lost the battle over open access, people are now retreating to a demand for network neutrality. They may lose that struggle too. But nobody should think that network neutrality by itself is the best solution. Rather, it's a second best solution produced by the unwise policies of Congress, the FCC and the courts.

There are two general arguments made for network neutrality. One is that network neutrality prevents anticompetitive practices by cable companies and telcos, who enjoy a duopoly. The second is that network neutrality will help promote innovation. These are both good arguments. However, I would like to offer a third. Network neutrality (and, before it, open access) are the best way to implement the goals of good information policy and democratic and free speech values. I am not claiming that network neutrality is required by the First Amendment or that courts could enforce such a policy on telcos and cable companies. Rather, my claim is that free speech values and the values of a democratic and participatory culture are best furthered by legislative and administrative rules that promote open access, and, failing that, network neutrality. These arguments are separate from arguments from competition (which primarily concern how to maximize consumer welfare) and innovation (which concern how to promote technological development)

Open access and network neutrality promote the values of free speech and democratic culture because they prevent cable companies and telcos from structuring the Internet to hinder end users who want to produce and broadcast their own information rather than simply consuming information provided by cable companies, telcos, and their content partners. That is to say, cable companies and telcos hope to make money by viewing the internet as a device for content delivery, much as cable television, broadcast television and radio deliver content to a mass audience. Hence cable companies and telcos hope to charge content producers (including services like Google) for fast speeds to end users' homes. End users who want to broadcast their own content, including streaming content, will have to take the slow lanes. They won't be in the same league as the favored content partners. Cable companies and telcos want end users to be consumers of information provided at high speeds by their content partners, not producers in competition with their favored content partners. Don't get me wrong: they are not opposed to the interactivity that goes with the Internet; they just want the interactivity to be on their own terms.

This model-- Broadband access as content delivery system from favored content providers to the home-- undermines the great promise of the Internet as a medium in which everyone, no matter how big or small, could be their own speaker, creator, and broadcaster. It undermines the participatory promise of the Internet, the promise of a technology that allows a truly free and democratic culture. This promise of equal opportunity and democratic participation in the forms and practices of knowledge production and cultural production is at the heart of the values behind the First Amendment. (Or so, at least, I have argued.) It is also a central goal of good information policy-- because it allows information to flow to and from the widest possible group of speakers and to and from diverse and antagonistic sources of information.

Allowing cable companies and telcos to discriminate in speed and content won't keep people from having their own blogs and websites with primarily text-based applications that consume relatively little bandwidth (although traffic to these websites may still have to take a backseat). But content and source discrimination will put a damper on individuals and small groups using more sophisticated applications-- and applications that consumer greater bandwidth (like streaming video or audio)-- that could seriously compete with favored content providers in the future. If you believe that the future of the Internet is not just text but also moving pictures and streaming audio, and if you want everyone, no matter how rich or poor, to have the opportunity to communicate using this powerful medium, then you should be concerned about a legal regime that allows the most powerful media companies in the United States to gain favored access and allows discrimination against everyone else.

The argument that network neutrality will promote innovation follows a similar logic; you want new businesses to be able come up with new applications that can be laid on top of the existing network, and you don't want incumbents to be able to stifle them easily by manipulating the flow of Internet traffic. Some of those new applications will be from large companies, some from small companies that may someday become large companies, and some applications will be from individuals and hobbyists whose efforts may grow into small and later large and successful companies. My focus in this post, however, is on ordinary individuals who want to express themselves using emerging new technologies for communication. We should build and maintain the Internet so that their ability to create, their ability to speak their minds, their ability to share new forms of expression and reach new audiences is honored just like everyone else's. In particular, we shouldn't allow end users' ISP's deliberately to slow down their traffic. Empowering people to spread their creativity and their ideas far and wide, to work with and reaching other people from around the globe, is what the free speech principle is all about. Given a choice in telecommunications policies, and all other things being equal, we should choose the one that best promotes these goals.


Comments:

Maybe we could try something goofy, like prohibiting local governments from granting monopolies, instead of trying to make monopolies act like part of a competative market?

After all, it's not a law of nature that you can't have two (or more) cable companies offering you broadband. It's usually just a law of your local government...
 

Because of many factors, I exited the telecom history saga, and, felicitously, around the time of the retrenchments beginning around Y2K.
Your 2004 NYULawRev paper looks interesting for the speech-related issues; I plan to give some time to it.
When Congress set bitrate guaranteed minima in 1996 14Kbps was a little slow given 28K modems were the most common; but, that's congress, especially, congress as it accommodates telcos.
Dereg was all the rage, at least on paper, worldwide; and a lot of third world private enterprises were making a hefty dime from gaming that process.
To this day, if you are not in a DSL neighborhood, 14k is all your local telco is obliged to provide; and in some universal access areas, rural zones, that is all that is available.
As Brett may have been alluding, the history of cable rollout was one of exclusivity of territory and limiting competition.
There is another technology besides DSL, called broadband wireless; bitrate 768Kbps works alright for small neighborhood associations, but it is less reliable than your premium service telco or your cable modem link.
Congress designed telco dereg with components like CALEA and E911. I know CDT has lots on this, as well.
When the baby bells won fairly recently in court the dispute over UNE, unbundling of network elements, once again the handwriting was on the wall for small portal providers; a new wave of consolidation was about to begin; or ingenuity would have to look to other methods of enhancing revenues. The sheer proliferation of internet access in first world countries has given new meaning to the concept of a fully meshed network of internet portals.
Though, as I mentioned at the start, I am outside the information stream on the latest developments, I find your concern for a transparent infrastructure refreshing. I think we need more technically informed people in congress to advance such concepts. It is as charged an atmosphere to discuss as the relatively staid contention over cameras in the Supreme Court, though perhaps more do-able.
 

Jack is right that the debate stems from the change in paradigm of the Powell FCC and his allies on the D.C. Circuit.In the first generation of the
Web, the narrowband version, the FCC under my chairmanship and that of Bill Kennard, 82?YLS, imposed a common carrier regime on Net access that effectively created network neutrality.
 

I certainly defer to Reed, and to Bill Kennard on this, who both did legion work then.
 

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