You are here

Before Net Neutrality Eats the World (Part 2): An Alternative Case for Agency Neutrality

(Note: On Sept. 9, 2013, the United States Court of Appeals for the D.C. Circuit will hear oral arguments in Verizon’s challenge of the Federal Communications Commission’s December 2010 Order on “Preserving the Free and Open Internet.” This series explores fundamental issues at stake.)

Instead of compulsory net neutrality, let's mandate agency neutrality.

Something remarkable has happened without the Federal Communications Commission's “Preserving the Free and Open Internet” net neutrality order of December 2010.

At the time of FCC's 2009 notice of proposed rulemaking (CEI filing here), the agency already had been forced to admit that “broadband Internet access service adoption has increased dramatically, with broadband in approximately 30 percent of American households in 2005 and sixty-three percent today” (p. 20, paragraph 48).

That was already astounding. Now, according to FCC itself, only 6 percent of the population lacks access to fixed broadband services (I'm not even counting wireless options such as mobiles and satellite).

This progress is a genuine wonder of free enterprise; but of course, no matter how amazing everything is, people will complain ("Give it a second! It's going to space!").

A mere year or two changes the competitive landscape and broadband penetration dramatically. FCC's power grab, a snatch without congressional authority, threatens the whole works.

We live in a world where the very Internet providers being disparaged have facilitated high speeds and access to content that didn’t exist a short time ago. Middle-schoolers already have known high-speed all their lives. Kids born today will marinate in even faster, even more ubiqutous broadband and content if the FCC doesn't mangle tomorrow's infrastructure innovation.

Still, Mom and Grandma will refuse to go online, and nothing FCC does will change that. I promise.

The net is mobile, compact and fast. Only a sliver access the Internet via dialup today, even know what dialup is, or recognize this sound.

The agency’s justification for rulemaking, it claimed, is “[m]aking sure that users can express themselves freely on the Internet and receive the content of their choice” (NPRM, p. 39, paragraph 95).

I see things differently. Rather than private corporations (owned by you and me in our mutual funds) blocking access--apart from transitory instances that fall well short of justifying universal neutrality mandates--governments seem most inclined toward blocking and filtering content.

Examples include the Communications Decency Act effort, library filtering, social networking regulation, privacy regulation; FCC itself, of course, sues broadcasters in prominent indecency cases.

If you've seen the uncensored version of Robin Thicke's big summer hit "Blurred Lines" (most emphatically NOT SAFE for Work) brought to you courtesy of corporate America, you probably know denial of access to online content isn't much of a problem.

Incidentally, Thicke's now in a spat with the Estate of singer Marvin Gaye over the song's main hook. To my non-legal ears it's clearly the same beat as "Got To Give It Up," so good luck with that. Think I hear a Michael Jackson "whoooo!" in there too. To answer your next question, yes, he's the son of Alan Thicke.

Mom won't go online, but she likes Marvin Gaye. Probably Alan Thicke too.

Anyway, along with the censor posing as guardian of access to expression, the FCC's order on “Preserving the Free and Open Internet” arises in an another important context. Network neutrality activists claim not regulating network owners will leave the Internet at the mercy of a few large companies; but the activists’ backers are themselves large corporations.

For such reasons, and more to be outlined in the coming days in this "Before Net Neutrality Eats The World" series, the only category of neutrality appropriate to modern communications is Agency Neutrality.

The FCC should turn a deaf ear to politically driven business and pressure-group demands for special treatment for any sector of the communications industry.

Of course, at this point, regrettably, it will have to be the court to force the agency to do that; and if that fails, Congress will have to reduce the agency's scope.

Our entire economy is arrayed against any carrier or dominant content provider that attempts to bully others with inappropriate blockage or interference. The infrastructure and content sectors can fight it out—or even integrate. Companies may act badly, but infrastructure involved is private property, not public property, in the final analysis.

Without net neutrality, free speech -- a critical component of the challenge to FCC's order -- remains enshrined for both firms and individuals. But with net neutrality, companies' speech and policies come under needless, inappropriate, unconstitutional government oversight for the sake of government control as an end in itself.

Literally everyone can be a broadcaster if they want in today's world. Internet providers are part of the reason it's possible, not the barrier.

Net neutrality amounts to Washington picking favorites, not just among companies and industries, but among business models as such. To the extent the FCC disparages proprietary approaches to network access and pricing, it is itself “unreasonably discriminating” (one of FCC’s key prohibitions in the Order) on a far higher level than any infrastructure company alone could ever do.

Coercive neutrality represents a true reduction of competition on a vast, overarching scale of which only governments are capable. What a tragedy for it to become policy.

Agency Neutrality by contrast means FCC shall not interfere, ever, with the potentially boundless competitive mix of open and proprietary investment and management decisions in the marketplace, because when it does, it locks in an inferior industry structure for future generations.

Where bottleneck problems arise owing to the residue of the exclusive monopoly franchises once enjoyed by dominant providers, numerous coping mechanisms are available that fall far short of imposing universal restraints on broadband practices.

Liberalizing other network industries, not just telecommunications, such that all may explore heretofore unforeseen investment opportunities, would be one vastly richer objective -- which we'll explore. But you'd live many lifetimes before seeing an FCC or Federal Trade Commission NPRM on that.

Next time: FCC's Priestly View of It's Role