Ed Felton is one of the good guys. And he’s a bright cookie, too (perhaps I’m mixing metaphors). So when he speaks about net neutrality, I read it with the expectation that what he says is better than what I would come up with on my own. With that in mind, I looked at his latest net neutrality article and saw his the commentary by others on this topic.
First, Felton highlights the end paragraph from his net neutrality paper (the first link above).:
There is a good policy argument in favor of doing nothing and letting the situation develop further. The present situation, with the network neutrality issue on the table in Washington but no rules yet adopted, is in many ways ideal. ISPs, knowing that discriminating now would make regulation seem more necessary, are on their best behavior; and with no rules yet adopted we don’t have to face the difficult issues of line-drawing and enforcement. Enacting strong regulation now would risk side-effects, and passing toothless regulation now would remove the threat of regulation. If it is possible to maintain the threat of regulation while leaving the issue unresolved, time will teach us more about what regulation, if any, is needed.
With this starting basis, he then writes on a response by Bill Hermann, from the Public Knowledge blog. Essentially, Hermann writes that Felton’s wait and see recommendation is not smart. If we wait too long, he argues, the topic will no longer be highly visible, and getting policy-makers to see things our way will be harder and more likely to fail. This sounds well-reasoned to me. I can certainly see the point, and after reading Hermann’s article, I’m starting to think maybe he is thinking better about this than Felton. Then, however, Felton puts up part of the rebuttal to this from Tim Lee over at The Technology Liberation Front.
Lee’s response is extremely well-written, I believe. And after reading it, I start to feel swayed back to Felton’s way. Of course, since I’m not as good about thinking these things through carefully, I find myself writing about others far more often than writing my own commentary. Lee points out how many times laws and regulations have been put in place to stop big business from taking industries over only to have those laws bent, twisted, and modified over years and years. In the end, these bastardized laws then become the things which support big business controlling what was once off-limits and erecting barriers to entry to stifle competition.
So let’s say Herman is right and the good guys have limited resources with which to wage this fight. What happens once network neutrality is the law of the land, Public Knowledge has moved onto its next legislative issue, and the only guys in the room at FCC hearings on network neutrality implementation are telco lawyers and lobbyists? The FCC will interpret the statute in a way that’s friendly to the telecom industry, for precisely the reasons Herman identifies. Over time, “network neutrality†will be redefined and reinterpreted to mean something the telcos can live with.
But it’s worse than that, because the telcos aren’t likely to stop at rendering the law toothless. They’re likely to continue lobbying for additional changes to the rulesâ€â€by the FCC or Congressâ€â€that helps them exclude new competitors and cement their monopoly power? Don’t believe me? Look at the history of cable franchising. Look at the way the CAB helped cartelize the airline industry, and the ICC cartelized surface transportation. Look at FCC regulation of telephone service and the broadcast spectrum. All of those regulatory regimes were initially designed to control oligopolistic industries too, and each of them ended up becoming part of the problem.
. . .
Finally, it’s important to note that the iron triangle goes both ways: once you pass network neutrality regulations, repealing them will be very difficult. This follows from the same iron triangle analysis he used aboveâ€â€if the telcos figure out how to use the rules to their advantage, they’ll lobby just as hard against repealing them. (just look at the legal fight to liberalize cable franchises) Which means that no matter how competitive the broadband market gets (and there could easily be dozens of wireless broadband providers a decade from now) the regulations will likely stay on the books.
All in all, a very compelling argument for waiting to see what happens. As noted above, if laws are pushed through to protect ‘net neutrality, we are probably just as likely to find ourselves wanting, but unable, to repeal or change them in the future as we are to be satisfied with them and be happy we have them. So protect your ‘net rights – don’t do anything about them until you have to.
[tags]Net Neutrality, Internet regulation[/tags]