A Neutral ‘Net?

This week I’m going to step off the beaten path for a moment and talk about ‘net neutrality. It appears we are about to enter a new phase in the life of the Internet — at least in the United States — as the FCC is out and about implying we should expect a ruling on Title II regulation of the ‘net within the United States in the near future. What the FCC’s chairman has said is —

• The Internet would be reclassified as a Title II communication service, which means the portions within the United States would fall under the same regulations as telephone and television service.
• “comma, but…” The ‘net infrastructure in the United States won’t be subject to all the rules of Title II regulation.
• Specifically mentioned is the last mile, “there will be no rate regulation, no tariffs, no last-mile unbundling.”

A lot of digital ink has been spilled over how the proposed regulations will impact investment — for instance, AT&T has made a somewhat veiled threat that if the regulations don’t go the way they’d like to see them go, there will be no further investment in last mile broadband throughout the US (as if there were a lot of investment today — most of the US is a “bandwidth desert” of single vendor territories, and the vendors often treat you poorly). But while these are concerns of mine, I have a deeper concern, one that’s not really being voiced in the wide world of technology.

Here’s the problem I see — the “comma, but…” part of this game. The Internet developed in a world that was encouraged by the government, through direct investment in the technologies involved, by buying the first few truly large scale networks, by encouraging and/or tolerating monopolies in the last mile, by unbundling companies that seemed to be “too big,” and many other things. Internet infrastructure, in other words, hasn’t ever really been a “free market,” in the Adam Smith sense of the term. Content and connectivity have, however, largely been a “free market,” to the point that IP is in danger of becoming a dial tone to the various “over the top” options that are available (we can have a separate discussion about the end to end principle, and the intentionality of being dial tone).

We might not have understood the rules, but at least there were rules. What we seem to be going into now is a world where there are no rules, except the rules made up by a small group of “experts,” who decide, well, whatever they decide, however they decide it. The process will be “transparent,” in much the same way the IETF process is “transparent” — if you can spend almost all your time paying attention to the high volume of proposals, ideas, and trial balloons. In other words, the process will be transparent for those who have the time, and can put the effort into “paying attention.”

And who will that be, precisely? Well, as always, it will be companies big enough to carry the load of paying people to pay attention. Which means, in the end, that we may well just be seeing yet another instance of rent seeking, of setting things as they exist “in stone,” to benefit the current players against anyone who might come along and want to challenge the status quo. The wishy-washiness of the statements on the part of those speaking for the FCC lends credence to this view of things — “we’ll implement the parts of the regulations we think fit, a determination that might happen to change over time.”

And here we reach a point made by Ayn Rand (no, I’m not a Rand-head, but I still agree with many points Ms Rand made over the course of her work). There is no difference between having an overly broad set of selectively enforced regulations in place and simply allowing a small group of people do what they like on a day-to-day basis. There is, in fact, a word for governments that don’t live by the rule of law — you might think it’s harsh, but that word is tyranny.

So what bothers me about this isn’t so much the regulation itself — though the regulations outlined thus far indicate a clear preference for the status quo big players than for real innovation by smaller players. It’s the way the regulations are being approached. “We’ll know the right regulations when we see them.”

Down this path lies regulation of content because “it’s offensive,” and gaming the system towards those who make the largest contributions, a vicious brew of political correctness and rent seeking on a grand scale.

And, in the end, this is one of the quickest ways to effect the obsolescence of the Internet as we know it. On the other hand, maybe that’s the point.