Battle of the Network Regulators

A week has passed since AT&T submitted to the will of Democrat FCC commissioners Copps and Adelstein by volunteering to “network neutrality” regulations and we’ve seen the entire range of possible reactions. Not from the pro-neutrality vs. the anti-neutrality forces, mind you, but from within the ranks of the regulationists themselves. Free Press’ chief telecom wonk Ben Scott touts the agreement and his own press blurbs on the Astroturf Save The Internet blog and Columbia law professor Tim Wu gushes about the “historic” nature of the agreement in the same venue.

But all is not happy in Neutland. Another law professor and neutrality hard-liner, Susan Crawford, says the agreement is the end of the Internet (copy paste into your browser, she won’t allow direct linking from here), and late-breaking neutarian Tom Evslin says the agreement is a sham. Others on the pro-regulation side say the agreement is hollow as the FCC’s majority doesn’t intend to enforce it.

So depending on which virtuous, regulation-happy soul you want to believe, the AT&T merger agreement is either the best thing that’s ever happened to the Internet, the worst thing, or nothing at all. That’s a lot to choose from, but don’t worry, I can explain everything in a very few words.

If you read Ben Scott’s quotes, it’s clear that he’s happy about two things:

1) The merger agreement contains a definition of “network neutrality”; and
2) It imposes telecom network regulations on at least part of the AT&T DSL network.

The first is really nothing, because the definition used in the agreement was simply lifted out of the Snowe-Dorgan Internet Freedom Preservation Act and has no special significance beyond the fact that the Democrat commissioners were familiar with it. Scott claims it puts the lie to the claim that “nobody can define network neutrality”, but that never was the issue, really. The intellectual problem with neutrality is that everyone can define it, generally in many different ways. Some say it’s about routing, some say it’s about delivery times, some say it’s about unbundling and some say it’s simply about pricing. As the agreement contains many of these elements, we’re still no closer to a universal understanding of network neutrality than we were when Professor Wu coined the term a few months ago.

And that, I believe, explains why Wu is so giddy over the agreement: it ensures that the term he coined will be part of the discourse on Internet regulation for years to come, extending his fifteen minutes of fame. That’s good for book sales, speaking gigs, and tenure. And more power to him for that, it’s no small feat to manufacture a regulatory principle out of thin air and have it stick to a major merger agreement.

The reason Ben Scott is so happy is because the agreement applies telecom regulations to the Internet. He’s a telecom regulator, you see, not an Internet guy, so he was facing unemployment if the trend toward de-regulated networks embodied by the historical Internet continued. But now he believes he’s made the case that the Internet is no different from an old-fashioned telephone network (in a regulatory sense) so he’s still relevant.

And this is the reason Evslin and Crawford are unhappy. They’re Internet people, not telecom people, and they understand enough about the Internet to see that it’s not at all like a phone network and can’t be treated that way. They’re all for regulating it in principle, but skeptical about the applicability of Scott’s wisdom to a fundamentally different medium. So they naturally point out that the telecom wonks who forged the agreement have missed the point so badly that they’ve actually made things worse for the Internet.

So this is the bottom line: the AT&T merger agreement applies traditional telecom law to the Internet, which is either a good thing or a bad thing depending on whether you think the Internet is phone network.

Just so we’re clear, networks of the past were designed for a single service: the telegraph network only carried telegrams, not phone calls; the telecom network wasn’t designed for television, and the CATV network, in its original form, didn’t carry data or voice. The Internet is a packet data network that fundamentally is capable of serving a variety of needs without much effort: e-mail, porn, video, and voice are all happy on it, more or less.

If we’re going to get regulatory with the Internet, we’re not going very far until we recognize this unique character. It’s not enough to be strict about how users of a single service are treated relative to each other, we have to understand how different services relate to each other. The telecom wonks’ approach is simply to ban “different services” in order to force-fit the Internet into the Procrustean Bed of the traditional regulatory model. The disgruntled neuts are sounder in their reaction to the agreement than the happy-faced ones, more in tune with the Internet’s character and less reactionary.

To be perfectly frank, Ben Scott and Tim Wu are rank opportunists who obviously care much less about Your Internet than about Their Own Careers. That’s not a bad thing, but it is something you should bear in mind lest you find their jubilation infectious.

UPDATE: Matt Sherman surveys yet another reaction.

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