The FCC’s network-neutrality kangaroo court

I was surprised to learn of a letter that Vint Cerf and others wrote to the FCC in support of network neutrality last October. Cerf wrote:

One persistent myth is that “network neutrality” somehow requires that all packets be treated identically, that no prioritization or quality of service is permitted under such a framework, and that network neutrality would forbid charging users higher fees for faster speed circuits. To the contrary, we believe such features are permitted within a “network neutral” framework, so long they are not applied in an anti-competitive fashion.

I was surprised by this, because my understanding is that’s exactly what network neutrality is. But rather than argue semantics, let’s go to the FCC’s proposed rules and see what they say. How do you write a rule that dictates that all traffic must be treated equally, while still allowing you to treat some traffic differently than other traffic where appropriate?

You can’t. So here’s what they say instead:

Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

There are two keys phrases here, “reasonable network management” and “nondiscriminatory”. The latter is not defined at all. The former purports to be defined, but the definition is circular and in any case it leaves open the definition of “reasonable”:

Reasonable network management consists of:
(a) reasonable practices employed by a provider of broadband Internet access service to:
(i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns;
(ii) address traffic that is unwanted by users or harmful;
(iii) prevent the transfer of unlawful content; or
(iv) prevent the unlawful transfer of content; and
(b) other reasonable network management practices.

So we can see that the FCC’s rule is no rule at all, because it never defines “nondiscriminatory” or “reasonable”. So how is the FCC going to enforce a policy that is ill-defined? The rule doesn’t say, but the FCC’s chairman Julius Genachowski explained at a speech at the Brookings Institution in September 2009 (page 13):

I will propose that the FCC evaluate alleged violations of the non-discrimination principal [sic] as they arise on a case by case basis, recognizing that the internet is an extraordinarily complex and dynamic system. This approach within the framework I am proposing today will allow the Commission to make reasoned, fact based determinations based on the internet before it, not based on the internet of years passed or guesses about how the internet will evolve.

Here’s the rub. Genachowski recognizes that there is no way to make a rule that ensures the good intended consequences of network neutrality while averting the bad unintended consequences. It’s good that he recognizes that, since legislators and regulators typically don’t, but what he proposes is even worse. He proposes, essentially, that there be no well-defined rule at all. Instead, the FCC will decide what’s okay on a case-by-case basis, using nothing but vague principles as a guide.

Returning to Cerf’s letter, he writes:

Many now-successful companies have deployed their services on the Internet without the need to negotiate special arrangements with Internet Service Providers, and it’s crucial that future innovators have the same opportunity. We are advocates for “permissionless innovation” that does not impede entrepreneurial enterprise.

I wholeheartedly agree with the principle of “permissionless innovation”, but that’s exactly not what the FCC’s policy would ensure. It does require that future innovators negotiate their innovations; it just makes the other party to the negotiation the FCC rather than ISPs.

Moreover, while the prospect of an ISP standing in the way of innovation is purely hypothetical, the prospect of a government regulator standing in the way of innovation is nigh inevitable. Those with political connections will have their way and any innovation that threatens them will be stamped out. Today’s innovator is tomorrow’s entrenched interest.

A few brave innovators may try to run the FCC gauntlet, but, for the most part, technology companies will avoid costly battles with government regulators. Rather than innovating, they will simply adopt a policy that they know will pass muster. And that means treating every packet the same.

That’s why Cerf is wrong. His internet expertise is unquestioned, but his faith in government regulators is naive. Empowering a government agency to pass judgement on future internet innovation is a terrible idea.

(Previous post.)

UPDATE: Cerf responds.

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