An Unfortunate Misunderstanding
An Unfortunate Misunderstanding
An Unfortunate Misunderstanding

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    The concept of Net Neutrality seems to me to be fairly clear. As the Internet has existed for years, with the end-to-end architecture, the user was at one end, the Web site or service provider was at the other, and the network was in the middle, basically connecting the other two parts. The network's only job was to make sure that the party of the first part connected up with the party of the second part.

    The reason that system existed for so long was that a law called the Communications Act required that telephone carriers treat all traffic equally. This is called “common carriage,” and the concept goes back more than 100 years to the days of the railroads. It means, quite simply, that the carriers, whether railroads, or telephone companies, can't play favorites with the traffic.

    But we're now entering a new era, a game without rules. The FCC last fall declared that cable modem service wasn't subject to regulation, and the Supreme Court agreed. Then the FCC did the same thing to DSL service. The FCC order on DSL came out at the end of September last year. It was barely six weeks later that then-SBC (now AT&T) CEO Ed Whitacre made his infamous remarks about companies like Google using his network for free, and a little later that a BellSouth executive started the talk about a “fast lane” for preferred services and Verizon started talking about a “private Internet” and a “public Internet.” And guess who determines which favored services get the fast-lane treatment? My guess is that you would either a) have to be affiliated with the phone or cable company or b) pay their tolls.

    Net Neutrality is about just saying No (or the polite version, No, thank you.) No to discrimination among traffic. No to creating a mythical “private Internet” where the network operator reserves the best content for a “virtual private network.” No to a second-class Internet. No to an Internet governed by packet-sniffing, content-prioritizing phone and cable companies.

    Let us be clear what it is not about. It is not about, as the otherwise astute Cory Doctorow wrote,

    “getting the FCC to write up rules dictating what firewall rules ISPs can and can't have. I'm an ISP right now — my laptop is WiFi rebroadcasting the Ethernet Internet access I'm getting at my hotel. Anyone can be an ISP. Do we really want the Feds to tell us what we can and can't do with our network configurations? Do we believe that they can move fast enough and smart enough to do a meaningful job of it?”

    This is not about someone picking up a Wi-Fi signal in a hotel room and considering that to be an ISP. This debate doesn't apply to Cory in his hotel room, and if that's his concern, the definition of an ISP could be tightened to clarify he's not offering service to the public as the law considers it. The current legislation, and the Net Neutrality debate, applies to the network operators which have the ability to discriminate.

    Cory is right, in an abstract sense, that the answer is to have more ISPs. But that isn't going to happen. Best I've been able to figure out, and Mark Cooper has done some good writing with this, the FCC eventually killed off the industry in the dial-up days, which BTW, existed in a common carrier world.

    There are no rules on the broadband networks. The FCC and Supreme Court saw to that. The phone companies and cable companies can discriminate as they please when they please, they don't have to share their networks or follow any of the rules that made ISPs in the dial-up era possible.

    The House Energy and Commerce Committee in the next week or so is preparing to hand the control over to the telephone and cable companies. If you are comfy with that, fine. But if you are comfy with that, you might just be disregarding 100 years of history of anti-competitive behavior.

    We don't want the government writing rules about how companies should do their business. But it's perfectly legit for the government to tell business how they should not.