Timothy M. Denton

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My reluctant agreement with Obama

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In political life you may have to agree with people with whom you would rather not. So it is with Obama's proposals for net neutrality.

Common carriage is the plainest of doctrines: if you are are a carrier, you carry equivalent traffic at similar prices. The doctrine implies the existence of a regulator to determine what constitute reasonable discriminations and just preferences, and it implies that the carrier can exercize market power in the absence of sufficient competition.

Net neutrality is no more than the expression of the traditional concerns that motivated railways to be regulated in the 19th century and carriers in the 20th, to abate unjust discriminations, to prevent carrier X favouring company Y at the expense of company Z, particularly when the carrier has the means motive and opportunity to favour Netscape, say, over Google, or buy into one but not the other.

Only the Americans can screw up government so badly that net neutrality appears like Obamacare (according to Senator Ted Cruz). Yet, through the sloppiness of their legislative processes, and a bad decision by the FCC that may have seemed plausible at the time, the Americans have managed to put the Internet into jeopardy by placing underlying carriage in the wrong stovepipe.

Obama's proposal to the FCC is that they place it in Title II (telecommunications). This would allow the FCC to regulate the underlying carriers of Internet traffic as if they were common carriers, as if they had duties of non-discrimination. If the President succeeds, and if the FCC accedes to his wishes, the United States will have arrived at where Canada has been since 2011.

I am generally inclined toward the Republicans in matters of foreign policy and management of the economy, but in telecommunications I find myself uncomfortably coalesced in the American left. You can have no idea how weird this feels, for me. The American tendency to see no harm in infinite appropriation of every public good by the private sector leaves me feeling, for want of a better word, quite Tory.

I was once sitting beside Larry Lessig at a conference, and Harold Feld (bearded, rabbinical, Democrat) was talking at the front of the room about the Internet as a creative commons, or some such communitarian fantasy. I turned to Lessig and said: "Larry, I am in deep doo-doo. I agree with this guy." Without hesitation Lessig replied: "You have been in trouble for a long time now, Tim". And so I have.

I do not think I should pay a toll to use a sidewalk, apart from my taxes. And I do not believe in special roadlanes for those who drive cars worth over $50,000. Some few things work better when their costs are collectivized. Other things work better when their prices are regulated. There exist collective action problems. and their existence refutes libertarianism. And if this displeases certain Confederates of telecommunications policy, call me a Yankee. See if I care.

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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Guest Monday, 19 August 2019
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