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Saturday, September 16, 2006

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Hmmmm.... this is a complicated issue, and I definitely need to do quite a bit more research before coming to a definitive conclusion. But I do have a few thoughts to consider.

First, props to TK for addressing the issue. But this video treats a complex issue in a pretty simplistic way. Yeah, OK, it's only 3 minutes and it's a freakin' politician doing the talking, so how detailed can you expect him to get... but still, it just feels like too much hot air.

Second, as I understand it, the core technological/functional issue at stake here is whether transport providers (backbone networks, etc.) can differentiate communication packets for distinct handling, and then charge fees for different qualities of service. I'm not aware of any proposals to not handle any packets, just that some packets would get priority delivery over others. Granted, with limited bandwidth it would be possible for those who have paid for guaranteed high priority delivery to squeeze out the unpaid traffic.

Third, the whole "free speech"/"freedom of communication" angle rings a little hollow to me. The Internet is one communication medium. There are certain unique aspects about it, to be sure, but it's not the only possible venue for speech or communication. So even if people were completely shut out from using it, it would not be the end of the world. It would be (*gasp*) the 1980s. Think about it. I'm not saying that regression is a good thing, of course, just that it's not the end of the world. Convenience and necessity are two distinct things.

Fourth, the whole telecom infrastructure in the country is based on a whacked out mix of private providers in a heavily regulated environment. So, it's also not the end of the world if one more regulation is added to the mix. It seems to me, though, that if the argument is going to be made that the ability to forward chain letter e-mails to Aunt Minnie in Des Moines is a basic human right, perhaps the government should be providing that infrastructure?

Fifth, while I detest the "information superhighway" as an inordinately poor metaphor, here's a thought based on that. Our public highways are currently just that -- public, provided by the government -- and anybody has the right to get on the highway and drive wherever they need to go. But what if a private company had built and owned I-5? And at first, it operated just like I-5 does now, anybody can get on and ride it to their destination without discrimination. But then long-haul companies found that in certain spots, there were so many other cars on the road, just tooling around out for a Sunday drive, that their time-sensitive shipments were being delayed. And they approached the private owner of I-5 and asked if they could somehow provide a reserved lane for them, one they'd be willing to pay for because of the commercial importance of their traffic.

Should the private owner of I-5 in this hypothetical be allowed to provide (and charge for) a solution that meets the needs of business at the expense of those who use the system for free? Or should the private owner be required to provide the same service to everyone at the same rates regardless of the content of the traffic?

Where you come down on that hypothetical question, I suspect, will determine where you come down on net neutrality.

I for one don't see a clear-cut answer.

Your highway analogy is a pretty good one, but you repeatedly refer to a "private owner" and I think the essence of my point is that neither the roads nor the internet are private. Because we granted these owners right-of-ways and other considerations, we aren't using it for free, we are part owners, we have some say. It is a public/private partnership and the "owner" doesn't get to treat it like it is private property.

The roads and the Internet work very differently, starting with the fact that the roads, while perhaps built by private contractors, are wholly owned by the government. Whereas "the Internet" (depending on how broadly you intend to use the term) is made up of a whole lot of different pieces, some of which are public and some of which are private.

I'm not sure with regard to Internet communications specifically what sorts of "rights of way" or other considerations have been granted by the government to these private telecom companies. Perhaps someone can enlighten me on this point, but is there any sort of government-granted exclusive arrangement whereby one and only one telecom company is providing all network bandwidth from one specific point to another in the country? I understand about the "last mile" providers at the local level, but my understanding about net neutrality is that it's primarily related to the nationwide network access, not so much specifically the local ISP to consumer connection. So if some company has been granted a government concession for all network traffic from say Portland to Los Angeles, you'd have a strong case to be made for the public regulation of that network traffic.

And to build on my hypothetical highway metaphor, since the government paid for I-5 to be built, and I-5 is very much a public throughfare, obviously anybody should be able to access that resource. But if I-5 had been built by a private company, with private funds, I think perhaps that private company might have a stronger case for being able to differentiate service across at least part of that highway. In particular, I would note that while I-5 makes it very easy, fast and convenient to get from Portland to L.A., it is entirely possible to travel by car between those two cities without spending any time at all on I-5, going from one local road to another. It'll take a LOT longer, but it'll still get you there.

So for the Internet backbone specifically, who really owns the lines? Who owns the networking equipment that deals with the traffic at both ends of the line? Is that infrastructure really publicly owned, or was it paid for with private investment?

In any event, as I said before there is ample precedent for strict regulation of private companies providing infrastructure type services (phone, cable, power, etc.) So the fact that company "A" actually does privately own the line upon which some network traffic travels (if that is the case) does not automatically guarantee that they have (or should have) the right to charge whatever they want and/or restrict access to whomever they want.

But generally speaking, I like to see an overriding public interest that requires regulation of a commercial activity, before signing off on that regulation. I think it's very possible that there may be such a public interest here, but I don't think it's blindingly obvious that this is the case.

Personally, I'd like to see perhaps some kind of compromise deal that allows bandwidth providers to differentiate services, but limit the total proportion of overall bandwidth capacity that may be used to transport such differentiated traffic. So, for example, say 30% of network bandwidth from a provider may be used to service designated "high-priority" packets. The remaining 70% of bandwidth must be available to service all other traffic in a neutral fashion. This would allow those users who have a genuine economic interest in gaining high-priority transport an option for obtaining that service, while also guaranteeing that substantial neutral bandwidth would remain available for everyone's general use.

Just a thought. Seems like a win-win solution to me...

This isn't just about the backbones. If the FCC can't regulate an Information Service (which is what Chairman Powell declared in 2002, but deregulation is incomplete and now Congress is involved) then there is nothing stopping Verizon et al from discriminating against traffic to Vonage and Skype, their direct competitors. They have the means, motive and opportunity. Why wouldn't they blackmail (an ugly word, I know) Google?

"You got a nice business running there. Lots of packets from my customers to your servers. It would be a real shame if some of those were to get lost, or suffer slow delivery. Yeah, a real shame. But we can protect your traffic for a small fee."

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