My Problem with the Modern Network Neutrality Debate

image Generally I find the topic of Network Neutrality to be cumbersome and energy draining, but two weeks in a row, I’ve listened to TWiT give the other side of the argument a half-hearted treatment, and Jason Calacanis this week simply pleaded with the listeners for 15 minutes to go write their congressman to vote for Network Neutrality.  I tuned out at about the time Jason started invoking John McCain’s imprisonment in POW camps as evidence as to why we need a network neutral internet.

It was just too much.

Look, I’m not against network neutrality, per se.  It irritates me like no one’s business that Comcast discriminates against BitTorrent protocol, as if everyone who uses it is some sort of a criminal. I’ve been writing about how this is a bad practice for broadband companies to engage in for, quite literally, years and years (both on my somewhat low profile soapbox of my personal blog as well as during my considerably higher profile stage of Mashable when I was Associate Editor there).

The bill that has everyone up in arms is Senate Bill 1836 IS by John McCain, the aptly titled Internet Freedom Act of 2009.

Here’s the bill in it’s entirety:

SECTION 1. SHORT TITLE.
    This Act may be cited as the `Internet Freedom Act of 2009′.
SEC. 2. LIMITATION ON AUTHORITY OF THE FCC.
    (a) In General- The Federal Communications Commission shall not propose, promulgate, or issue any regulations regarding the Internet or IP-enabled services.
    (b) Exception- The limitation set forth in this section shall not apply to any regulations that the Commission determines necessary–
      (1) to prevent damage to the national security of the United States;
      (2) to ensure the public safety;
      (3) to assist or facilitate any actions taken by a Federal or State law enforcement agency; or
      (4) to ensure the solvency of the Universal Service Fund established under section 254 of the Communications Act of 1934.
    (c) Rule of Construction- Nothing in this section shall be construed to supersede, repeal, or negate any regulations regarding the Internet or IP-enabled services that were in effect on the day before the date of enactment of this Act, including any regulations established pursuant to the Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 note).
    (d) General Principles- Congress finds that–
      (1) the Internet and all IP-enabled services are services affecting interstate commerce; and
      (2) such services are not be subject to the jurisdiction of any State or municipal locality.

image This is, in my opinion, good.  I think that the government should stay out of regulation on the web.  Every time they try to get into regulating the web, it turns out to be an incredible disaster. 100% of the time.  No exceptions.  At no point in our nation’s history has regulation of the Internet ever been a good thing.  We all know this, we’ve all participated in various Blue Ribbon campaigns, and we’ve all called our congressman over this or that.

It seems, though, that when it comes to Network Neutrality, that somehow this time it’ll be different.

Like a battered wife, for whatever reason we believe them.

Let’s Refresh Our Memory on US Internet Regulatory Efforts

Back in 1995-1996, it was the CDA (The Communications Decency Act). The CDA made it a felony to knowingly expose a minor to "indecent" material over the Net.  This was publicly rallied against by many on the ‘Net led by the EFF, and eventually struck down in 1998 as unconstitutional. You may remember it, if you used the web back then, from all the blue ribbons on everyone’s home pages and Geocities sites.

There have been dozens more attempts by the government to regulate various aspects of the Internet in recent years, though. The record industry arm in arm with the government has been for many years trying to make penalties for illegal filesharing more than just a civil matter, and the movie business has succeeded in making internet filesharing of copyrighted material criminal.

Copyright law combined with technology has proven to be especially damaging to the common man, with the government authorizing all manner of honey pot and sting operations aimed at entrapping the average user and then successfully fining them between thousands and millions of dollars.

I wrote extensively about this very topic in 2007 at Mashable in a piece entitled “Is the Listener License Coming?

image This doesn’t even begin to touch on all the failed attempts to enact bad legislation, like the 2003 bi-partisan attempt to revive the 1984 Betamax legislation, which would outlaw cassette tapes, VHS tapes as well as peer-to-peer and any other recordable media where an audio recording could be stored.

  … or like in 2008 when my favorite congressman who looks like John Tesh (Rep. Ed Markey) tried to enact legislation that would require all producers who distribute content on the web to close caption all their creations. From my post at Mashable two Junes past:

The FCC would be the organization administering all these regulations. Just in case you forgot, this is the same organization that fined a TV network millions of dollars over a half a second of accidentally visible nipple. Heaven forbid Art fail to bleep Steven on one of our weekend podcasts! We could be in for a world of fines and fees.

True, the FCC isn’t currently being tasked with monitoring the decency of the Internet’s broadcasts, but if you give the FCC jurisdiction over one element of online broadcasts, what’s to prevent them from engaging further regulations on content, structure, and monetization? Sure, that’s the tried and true slippery slope argument, but not one without precedent when it comes to governmental oversight.

The FCC has no business telling me what I can and can’t produce – this strays way too far from regulating public airwaves (not that the organization hadn’t already strayed far afield in that respect).

imageThe language of the bill makes opt-out provisions based on “feasibility,” but is very nebulous on what feasible means. Technically feasible? Fiscally feasible? Do they even care? Do they even understand?

The FCC has remained remarkably retarded over the years when it comes to understanding their mandate and relating that to what is feasible and fiscally responsible. If you need proof of their aloof position with regard to the economics of regulation of our airwaves, try applying to receive a low-power FM transmission license. These are licenses supposedly reserved for emergency broadcast and public non-commercial programming. Despite this, waiting lists are generally years (verging on decades) long, and are still out of the financial reach of the average American.

We don’t really hafta turn back the clock to decades past, though, to see a patter of technological incompetence.  Let’s look at what’s been attempted since the Obama Administration took office:

McFly… hello?  Am I getting through?

image Look – like I said, a Network Neutral Internet?  Yeah, I’m all for it.  But not at the point of a gun.

When you put the full weight and power of the government behind the enforcement of communication guidelines, you end up with more than you bargained for – always.  Jeff Nolan recently said it best: “There is one absolute truth about Washington D.C. and that is the desire for turf knows no bounds and once authority has been established it is fully exercised and rarely relinquished.”

What starts out in this administration as an altruistic means to a network neutral internet will end up with efforts decades hence to obfuscate every indecency by the same organization that tried to punish those networks responsible for Janet Jackson’s exposed nipple. Is that what we want? Do we really want an organization accountable to the statistically most corrupt collection of individuals in America?

The FCC isn’t elected, folks, it’s appointed, and when there are rare efforts by Congress to reign in their power grabs, they get ridiculed by thought leaders like they did on TWiT Sunday afternoon. I don’t mean to impugn anyone on that show, but that’s not smart behavior.

Why Do We Have a Problem With Our Broadband, Anyway?

image The reason why we’re in danger of having a non-network neutral internet is the same reason why we’re ranked so poorly amongst the rest of the world when our rate of broadband speed and adoption is stacked against each other.

It’s because the government has habitually approved and encouraged large telecommunications conglomerates to monopolize markets, and create ridiculous government run initiatives (like the Universal Service Fund) to increase adoption and service quality, rather than encourage competition and decentralization of power.

If we deregulated telecom in the same ways that South Korea and Japan deregulated telecom, we’d see the same innovation in the space, and a clear lack of need to regulate network neutrality.

Few would argue that a non-network neutral ISP is a desirable thing.  If you ask a set of consumers who understand what it’s about whether they’d like a network neutral internet o r a non network neutral internet, they’ll always side with network neutrality.  If we had a truly competitive landscape in America when it came to telecom and broadband, instead of the duopoloy we’re stuck with, we wouldn’t have this problem.

Those who don’t know history are doomed to repeat it.

It’s hard to find resources that do a good job of chronicling how Japan and South Korea got their stellar Internet and broadband landscape, but last year I found an excellent research paper from Berkeley University that had a veritable treasure trove of details that provided historical perspective dating back to the 1800s.

Some of the more interesting factoids I gleaned from the paper:

  • In the one year between 1999 and 2001, the number of DSL subscriptions in Korea rose from 97 thousand to 2.7 million
  • In that same year, cable modem subscriptions increased from 17 thousand to 1.5 million.
  • The rates of growth that were experienced in Japan as well as South Korea were due to governmental de-regulation.
  • In Japan, the telecom was handled and regulated by the same division of government responsible for postal regulations (sound familiar?). Once that restriction was eliminated, the roadblocks were cleared for rapid growth.
  • In South Korea, similar governmental roadblocks were cleared, mostly having to due with censorship.
  • In both cases, demand and centralized population centers were the biggest driving factors behind adoption.

Only after rapid growth and clear dominance by a few private broadband providers had been established did the government step back in and exert a heavier hand in how the markets were regulated.

If we can re-create the type of wild-west atmosphere in North America as was created in East Asia in the late 90’s, these network neutrality debates would be a thing of the past – the free market would breed them into obscurity. 

Simply put, if the government stopped subsidizing and allowing for telco duopoly in America, we wouldn’t need further governmental regulation of our pipes.

About Mark 'Rizzn' Hopkins

Mark “Rizzn” Hopkins is the Founding Editor of SiliconANGLE, as well as the creator of and Executive Producer for theCUBE. He’s a Bitcoin early adopter, as well as a blogging, podcasting and social media pioneer. Prior the founding of SiliconANGLE, Hopkins worked as Associate Editor at Mashable during its formative years. Prior to his career in startups and media, he worked as a developer for large corporations like Nokia, IBM, Apple and Cox Communications. Hopkins lives in Dallas, Texas with his wife and two children.