THE BLOG

Are We All Talking About the Same Thing?

03/04/2015 12:37 pm ET | Updated May 03, 2015

By the time I get around to finishing this piece, the FCC's recent net neutrality ruling will be older news than #dressgate. But, somehow, I don't think its need to be understood will be any less relevant.

Like many debates in America, it is stereotypically polarized. If you take one stance, for example in favor of net neutrality, you are either an open Internet crusader or misguided liberal drone. If you oppose, you are a rational free-marketeer or conservative bane of innovation. As in anything remotely political, there is no middle ground. And that's unfortunate. For regulation so entwined with the means through which we increasingly communicate, interact, learn, work, and develop should be critically examined for what it does and does not do, not blindly disregarded or supported by demagogic rationales.

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For those who haven't been following, the basic tenet of net neutrality is that all people should have equal and unrestricted access to the Internet. To ensure this credo, after much anticipation, the FCC reclassified broadband Internet access providers on February 26 under what is known as Title II regulation to treat them as "common carriers" with "the basic duty to serve the public indiscriminately." Amusingly enough, the two sides of the issue actually have more in common than they probably realize, such as the beliefs in a free and open Internet, investment in innovation, and no throttling of basic Internet service.

So what are people really arguing about? As Julia Boorstin explains:

Proponents of the new rules say regulating the Internet...protects consumers and innovation. Opponents say it stifles innovation and restricts capitalism. Essentially, the debate has become ideological and partisan.

Predictably, critics lament the fees that could be introduced over time, stagnated or decelerated investment which could lead to slower speeds, and the regulatory creep into the private sector that will leave any ardent capitalist shaking in his boots. The reclassification is portrayed as outdated and, moreover, unnecessary government intrusion. Verizon's public policy response in morse code and smudgy typewriter font -- mocking the regulation dating back to 1934 -- is sophomoric, albeit entertaining.

On the other hand, the idea of paid fast lanes is terrifying. Anyone could tell you that an equal standing is the key to digital entrepreneurship. The net neutrality furor came more preemptively - from the idea that ISPs could make this happen - than reactionary based on what was really happening. In other words, it was more of a solution to a problem that did not quite yet exist. But why Title II regulation would be the most logical conduit to tackle this anyway is unclear. If anything, we should be paying attention to legislation that has not yet passed, namely the "Internet openness" draft bill to amend the 1934 Communications Act (you know, the one we just invoked) which would leave the Internet both regulated and vulnerable or, simply put, worse off than where we started. Similarly (and disturbingly), well-meaning regulation has led to legislative bloat in the past, as in the case of software patent laws.

So what was the matter with our Internet before it was reclassified? Yes, the U.S. has among the slowest and most expensive broadband in the world. Title II won't help that. Fast lanes, in their totally unregulated context, threaten innovation and limit new entrants into the market. However, the idea in itself is not totally vile. As Mark Cuban sarcastically noted, wouldn't you want some things (keyword: "some") to have top-notch Internet speeds, such as your self-driving car? Either way, Title II will not necessarily keep the Internet immune from these "lanes" forever. You only have to look at the "Internet openness" bill (see above) or wait for a new administration or FCC chairman to usher in their take on the matter. In essence, the Internet is not black and white, and it is most certainly not sacred. We seem to have merely added more complexity to its already nuanced nature. But we rarely get beyond the two sides' echo chambers to question whether Title II is the most appropriate means to the end of a genuinely neutral Internet.

Contrary to what the media has reported, the Internet was not made a public utility. And, yes, Title II is meant to be "light touch", but we should take this assurance with a grain of salt. What does light touch actually mean? ISPs and phone and cable companies, such as Verizon, AT&T, and Comcast, do not oppose net neutrality itself, but the potentially onerous legislation and government overreach meant to achieve it. As Craig Moffett claims, there is a risk that Title II - even with exceptions or "forbearance" on its more burdensome aspects - will lead to price regulation "because the statutes that are being imposed do include requirements around, quote unquote, just and reasonable pricing." The FCC has explicitly said it would not regulate pricing. But how much this promise means, or how its official stance could change, remains to be seen.

What about increased competition? Telecoms would still be incentivized to improve service and decrease prices with minimal governmental intervention. Ot van Daalen, a privacy lawyer who helped pass similar net neutrality rules in the Netherlands told the New York Times that net neutrality is moot if there is healthy competition, a reality that is not so in the U.S. In this light, we are not addressing the cause, but merely treating the symptoms. Sadly, the FCC ruling does not hinder the Comcast-Time Warner Cable merger and introduces only marginal (however welcome) advancements to tackle the lack of competition in broadband. Why that's seemingly the end of that - at least in popular public debate - is puzzling.

We categorically villainize telecoms and big business somewhat hypocritically. We have to realize that the YouTubes and Netflixes of the world are very big businesses that are rallying behind the cry of net neutrality in large part because it suits their business models, not in the name of some digital utopia. (They benefit when they do not have to pay extra for their data-heavy video services.) Big business is one and the same, but this is not a rant on the merits of capitalism. If we want to villainize something, we should turn our gaze toward the monopolies and oligopolies and address the issue of competition, which is the real culprit. Countless others, some of whom I've referenced here, have spoken about these underlying issues, and the idea of competition vs. regulation to solve very real problems is not novel. Unfortunately, this conversation failed to take main stage in the most recent FCC showdown.

Of course I support net neutrality. However, the direct connection between it and more regulation has yet to be demonstrated, either theoretically, empirically, or with basic common sense. I know there is a debate to be had here in this respect. I just wish we, well, had it.