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The Network Neutrality Debate

By John Cimko

 

The phenomenal growth of the Internet is largely a product of how the Internet works. Web surfers can pretty much go anywhere and do whatever they want on the Internet. The survival of the fittest governs the fate of new Internet services and applications. The Internets open and unrestricted platform enables these innovations to be tested, and either embraced or rejected, by Internet users.

This way of doing things has been supported by broadband Internet access providers. The unwritten rule generally has been that these providers operate like common carriers. Subscribers get to use their pipes in an unrestricted manner. Nobodys services or applications are blocked, no Web sites are off limits, and nobody gets any special preferences from the broadband providers.

But now all this could change. Debate is swirling around this question: Should network neutrality the principle, as Vinton Cerf explains it, that there are no gatekeepers over new content or services be codified, or should Internet ground rules move in a different direction?

Broadband providers argue that the current Internet model is not carved in stone, and that they are short changed by the existing scheme. They say theyve made large investments in Internet infrastructure, and they should be allowed to implement business models that maximize their return on this investment. They claim to support network neutrality, but they qualify their endorsement with the mantra that network neutrality is a solution in search of a problem and does not need to be enshrined in federal laws or regulations. Kerry Knott, Comcasts vice president for government affairs, explained it this way in a recent interview: It is better to let the market work and, if there are instances that pop up, you deal with them.

Some broadband providers want to supplement market forces with legislation of their own. As Michael Geist, a professor at the University of Ottawa, recently observed, BellSouth and AT&T are lobbying Congress for the right to create a two-tiered Internet, where their own Internet services would be transmitted faster and more efficiently than those of their competitors.

Network neutrality advocates are crossing swords with Internet access providers, arguing that moving away from a common carriage model would clear the path for closed broadband networks that stifle competition, impose costs on consumers, and dampen innovation for new Internet applications.






Professors Tim Wu and Lawrence Lessig cite two reasons to support a regulatory guarantee of network neutrality. First, it would eliminate the risk of future discrimination against services and applications, thus providing greater incentives for investment in broadband applications, content, and services. The potential of discrimination itself has a dampening effect on innovation. Second, network neutrality brings fair competition among applications and services, ensuring that those favored by biased network platform providers are not given an advantage. Competitive innovation marked by the edge-to-edge design of the Internet is promoted by network neutrality. Wu and Lessig argue that consumers, not network operators, should decide what applications, content, and services succeed or fail on the Internet.

Federal policymakers are grappling with the issues raised by this Internet debate. Last September, the FCC adopted a policy statement about how to encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet. The non-binding policy statement included these principles: consumers are entitled to access the lawful Internet content of their choice; theyre entitled to run applications and use services of their choice (subject to law enforcement needs); and theyre entitled to competition among network providers, application and service providers, and content providers.

Meanwhile, network neutrality has become a centerpiece of the telecommunications reform efforts on Capitol Hill. Several different approaches are in the mix as Congress attempts to move forward with a telecom rewrite package. A House Commerce Committee staff counsel predicted in a January press interview that legislation will pass this year, and will be market-based and market-driven.

Whats a reasonable solution to the network neutrality debate? A touchstone for government policymakers should be that broadband providers must not be permitted to leverage their control over Internet platforms to gain advantage through discriminatory or anti-competitive practices. TMCnet Associate Editor Patrick Barnard recently pointed out, for example, that [p]erhaps the most compelling arguments against a second [Internet] tier center on the issue of fairness in competition.

Restrictions on broadband providers operations make sense because the Internet access pipes are bottlenecks. The phone companies and cable operators who control the pipes argue that their head-to-head competition is all thats needed to safeguard network neutrality. But how likely is it that a duopoly broadband market will produce true competition? A choice between only two providers is not a competitive choice. In some cases, enterprise and mass market users only have one choice for broadband service.

Internet access providers should be able to recoup their infrastructure investments, and they should be permitted to develop business models that seek new sources of revenue from their Internet infrastructure. But they should not have a blank check to impose restrictions that turn the Internet into a closed network driven by anti-competitive preferences. IT

John Cimko served for fifteen years at the FCC, and currently practices law at Greenberg Traurig LLP in Washington, D.C. The views expressed are solely those of the author and should not be attributed to his firm or its clients. For additional information, visit the firms Web site at www.gtlaw.com (news - alerts).

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