Neutrality on net neutrality is not an option

Continuing its campaignagainst the FCC’s planned net neutrality regulation, the Washington Post launched its new Post Tech blog Thursday with an interviewwith Carnegie Mellon computer science professor and net-neutrality skeptic,  David Farber. According to Farber:

[I]t’s very hard to define [“neutrality” and “reasonable network management”]. The problem here is everyone talks about reasonable network management, but if you look at it from a technical perspective, someone trying to build new ways of operating networks is going to sit there saying, “I wonder if this new brilliant idea is reasonable or not. And if I go through all the energy of implementing it and testing it, will someone in Washington say that that violates some reasonable network management criteria?”


It is also attacking a problem which doesn’t seem to exist. The one or two cases where things that I would say fall into network neutrality have been taken care of easily. The FCC looked at this and said “You aren’t doing things right, so let’s look at it.” Having a whole set of regulations for something you don’t understand hasn’t happened is sort of tricky.

comcast_fccFair enough as far as it goes. But as a practical legal and political matter we’re way past the point of debating whether we should or shouldn’t have net neutrality regulation. The question on the table in Washington is who’s going to write the rules: Congress, the FCC or the courts?  The issue for the ISPs is to pick their poison, because the status quo is not an option.

For starters, you have Comcast’s litigation against the FCC over the agency’s reliance on its informal Broadband Policy Statementto order Comcast last year not to throttle BitTorrent traffic over its network. At this point, Comcast should probably consider dropping the case because there’s no plausible outcome that could benefit the ISP. Should the DC Circuit Court rule that the FCC’s “principles” have no legal force, or that the agency overstepped its jurisdiction — technically a “win” for Comcast in a narrow legal sense — the key committee chairs on the Hill would almost certainly move quickly to give the FCC to “correct” the jurisdictional problem. The FCC, meanwhile, would simply have more incentive to conduct a formal rulemaking so it wouldn’t have to rely on legally dubious policy principles.

If, on the other hand, the court were to uphold the FCC’s 2008 action, momentum toward formal regulations might temporarily be blunted. But ISPs would then be left subject to essentially arbitrary enforcement of vaguely defined “principles.” Not a good business outcome.

Congress, meanwhile, isn’t bothering to wait for the court’s ruling in the Comcast case. Net neutrality legislation is already moving in the House, and from the ISPs’ point of view the bill in question probably represents the worst of all possible outcomes. Any bill that comes out of Congress, moreover, is likely to direct the FCC to fill in the blanks anyway, only now the terms of debate would have been established on political terms.

spankingGiven the available options, network operators are probably best off having the FCC take the lead. At least with the FCC they can be assured of some degree of technical expertise to grapple with the genuinely difficult engineering challenges involved in network management–something they cannot count on with Congress. As unappetizing a choice as it may seem to some, legislation by politicians is likely to be far more blunt an instrument than regulation by technocrats.

In any case, official neutrality on net neutrality is not in the cards. The only question is who the dealer will be.