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Trying to explain net neutrality in the US

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When I read conservative blogging treatment of net neutrality before the FCC, I despair of US politics. Here is Glen Beck, for example. Here is Ajit Pai, Republican appointed FCC Commissioner.

Why is a choice between control of what you send or receive that is exercized by large carriers without a referee, on the one hand,  and control by large carriers refereed by government, on the other, treated as the Apocalypse?

No one on the carrier side is saying, as they ought, that the right to control what goes over the Internet is theirs alone. They do not assert that they, as carriers, have the sovereign inherent right to control what you send, or see, and they shall determine its price, speed, availability, and whether they can take an ownership position in your company for the privilege of sending traffic across their facilities.

That would be an honest argument. They would say that the degree of competition in the carriage industry is such that they cannot abuse a dominant market position.

To put it that way would be to cause reasonable people to ask whether they trusted Verizon, or Comcast, more than the regulatory agency, to mediate disputes between senders and carriers. That would be a no-brainer.

So they claim that net neutrality threatens innovation and - as Ajit Pai maintains - gives aid and comfort to authoritarian regimes, such as North Korea, to intervene in similar ways.

Net neutrality a threat to innovation? Whose innovation? It is the edge supplier, not the carrier, which has been the source of innovations since the Internet liberated us from the regime of carrier-permissions. Would Tim Berners-Lee have managed to develop the world wide web if he had had to seek world wide permission from carriers in order to offer the program from the CERN website? Would the email program have been distributed if the AT&T then monopoly had to establish a company-wide committee to consider its implications?

Openness to innovation was a major point in favour of the FCC's concerns in Verizon v FCC, where the US Court of Appeals found that the Commission had justified its concerns that low barriers to innovation drove a virtuous circle of innovation and investment in broadband (at pp-35-36).

"Equally important, the Commission has adequately supported and explained its conclusion that, absent rules such as those set forth in its Open Internet Order, providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment". (pp-36-37)

The Court found that broadband providers have the technical and economic ability to impose restrictions that would have the effect of decreasing end-user demand for broadband. They "have the ability to distinguish between and discriminate against certain types of Internet traffic."

The Court also upheld the Commission's finding that users might not know if carriers were engaging in discriminatory activity, and even if they did, whether the costs of switching carriers would be too high (at p39). The Court further found the FCC justified in finding that such carrier power had been exercized (p.42) unfairly against edge providers at various times.

The Federal Court of Appeals agreed with Verizon only as the the inadequacy of the legal basis upon which the FCC had founded its Open Internet Order; it maintained that the Commission's decision to regulate the broadband providers as "information services" was the error.

That error in law is about to be fixed.

The fear that the Glen Becks of this world express  is that the government is about to take over the Internet. I would share that concern if the Internet was to be declared "broadcasting", and made subject to state licensing. But that is not happening (so far). Neither the state, nor the carriers, are being allowed to control what gets published. Controlling private interests is often as important and restraining the power of the state. Try to tell that to a Republican these days.



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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 Thursday, 02 July 2020
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