Not surprisingly, FCC Commissioners voted 3 to 2 today to open a Notice of Inquiry on changing the classification of broadband Internet access from an “information service” under Title I of the Communications Act to “telecommunications” under Title II.  (Title II was written for telephone service, and most of its provisions pre-date the breakup of the former AT&T monopoly.)  The story has been widely reported, including posts from The Washington Post, CNET, Computerworld, and The Hill.

As CNET’s Marguerite Reardon counts it, at least 282 members of Congress have already asked the FCC not to proceed with this strategy, including 74 Democrats.

I have written extensively about why a Title II regime is a very bad idea, even before the FCC began hinting it would make this attempt.  I’ve argued that the move is on extremely shaky legal grounds, usurps the authority of Congress in ways that challenge fundamental Constitutional principles of agency law, would cause serious harm to the Internet’s vibrant ecosystem, and would undermine the Commission’s worthy goals in implementing the National Broadband Plan.  No need to repeat any of these arguments here.  Reclassification is wrong on the facts, and wrong on the law.

What is Net Neutrality?

Instead, I thought it would be useful to return to the original problem, which is last fall’s Notice of Proposed Rulemaking on net neutrality.  For despite a smokescreen argument that reclassification is necessary to implement the NBP, everyone knows that today’s NOI was motivated by the Commission’s crushing defeat in Comcast v. FCC, which held that “ancillary authority” associated with Title I did not give the agency jurisdiction to enforce its existing net neutrality policy.

Rather than request an en banc rehearing of Comcast, or appeal the case, or follow the court’s advice and return to Congress for the authority to enforce the net neutrality rules, the FCC has chosen in the name of expediency simply to rewrite the Communications Act itself.

Many metaphors have been applied to this odd decision.  I liken it to setting your house on fire to light your cigarette.  (You shouldn’t be smoking in the first place.)

Let me be clear, once again, that I am all for an open and transparent Internet.  I believe the packet-switching architecture is one of the key reasons TCP/IP has become the dominant data communications protocol (and will soon dominate voice and video).

Packet-switching isn’t the only reason the Internet has triumphed.  Perhaps the other, more important secrets to TCP/IP’s success are that it is a non-proprietary standard –so long SNA, DECNet and OSI and the corporate strategies their respective owners tried to pursue through them–and simple enough to be baked in to even the least-powerful computing devices. The Internet doesn’t care if you are an RFID tag or a supercomputer.  If you speak the language, you can participate in the network.

These features have made the Internet, as I first argued in 1998 in “Unleashing the Killer App,” an engine for remarkable innovation over the last ten years

The question for me, as I wrote in Chapter 4 of “The Laws of Disruption,” comes down most importantly to one of institutional economics.  Who is best-suited, legal authority aside, to enforce the features of the Internet’s architecture and protocols that make it work so well?  The market?  Industry self-regulation?  A global NGO?  The FCC?  Or put another way, why is a federal government agency (limited, by definition, to enforcing it authority only within the U.S.) such a poor choice for the job, despite the best intentions of its leadership and the obviously strong work ethic of its staff?

To answer that, let’s back all the way up.  Net neutrality is a political concept overlayed on a technical and business architecture.  That’s what makes this debate both dangerous and frustrating.

For starters, it’s hard to come up with a concise definition of net neutrality, largely because it’s one of those terms like “family values” that means something different to everyone who uses it.  For me it’s become something of a litmus test—people who use it positively are generally hostile to large communications companies.  People who use it negatively are generally hostile to regulatory agencies.  A lot of that anger, wherever it comes, seems to get channeled into net neutrality.

In fact the FCC doesn’t even use the term—they talk about the “open and transparent” Internet instead.

But here’s the general idea.  The defining feature of the Internet is that information is broken up into small “packets” of data which are routed through any number of computers on the world-wide network and then are reassembled when they reach their destination.

Up until now, with some notable exceptions, every participating computer relays those packets without knowing what’s in them or who they come from.  The network operates on a packet-neutral model—when one computer receives it, it looks only to see where it’s heading and sends it, depending on traffic congestion at the time, to some other computer along the way just as quickly as it can.

That’s still the model on which the Internet works.  The FCC’s concern is not with current practice, but of future problems.   Increasingly, they see a few dominant providers controlling the outgoing and incoming packets to and from consumers—the first and last mile.  So while the computers between my house and Google headquarters all treat my packets to Google and Google’s packets back to me in a neutral fashion, there’s no law that keeps Comcast (my provider) from opening those packets on their way in or on their way out and deciding to slow or speed up some or all of them.

(Well, the law of antitrust and unfair trade could in fact apply here, depending on how the non-neutral behavior was expressed and by whom.  See below.)

Why would they do that?  Perhaps they make a deal with Google to give priority to Google-related packets in exchange for a fee or a share of Google’s ad revenues.  Or, maybe they want to encourage me to watch Comcast programming instead of YouTube videos, and intentionally slow down YouTube packets to make those videos less appealing to watch.

Most of this is theoretical so far.  No ISP offers the premium or “fast lane” service to individual applications.  Comcast, however, was caught a few years ago experimenting with slowing down the BitTorrent peer-to-peer protocol.  Some of Comcast’s most active customers were clogging the pipes sending and receiving very large files (mostly illegal copies of movies, it turns out).

When they were caught, the company agreed instead to stop offering “unlimited” access and to use more sophisticated network management techniques to ensure a few customers didn’t slow traffic for everyone else.  Comcast and BitTorrent made peace, but the FCC held hearings and sanctioned Comcast after-the-fact, leading to the court case that made clear the FCC has no authority to enforce its neutrality policies.

The simple-minded dichotomy of the ensuing “debate” leaves out some important and complicated technical details.  First, some applications already require and get “premium” treatment for their packets.  Voice and video packets have to arrive pretty much at the same time in order to maintain good quality, so Voice over IP telephone calls (Skype, Vonage, Comcast) get priority treatment, as do cable programming packets, which, after all, are using the same connection to your home that the data uses.

Google, as one of the largest providers of outbound packets, has deals with some ISPs to locate Google-only servers in their hubs to ensure local copies of their web pages are always close by, a service offered more generally by companies such as Akamai, which caches copies of the most frequently-used sites to speed things up for everyone.  In that sense, technology is being used to give priority even to data packets, about which no one should complain.

Fighting over the Future

So the net neutrality fight, aside from leaving out any real appreciation either for technological or business realities, is really a fight about the future.  As cable and telephone companies invest billions in the next generation of technology—including fiber optics and next-generation cellular services–application providers fear they will be asked to shoulder more of the costs of that investment through premium service fees.

Consumer groups have been co-opted into this fight, and see it as one that pits big corporations against powerless customers who need outside advocates to save them from dangers they do not understand.  That increasingly quaint attitude, for one thing, grossly underestimates the growing power of consumers to effect change using the Internet itself (see:  Facebook et al.). Consumers can save themselves, thanks very much.

What is true is that consumers do not and aren’t likely to be asked to pay the true costs of broadband access given the intense competition in major markets between large ISPs such as Comcast, AT&T, Verizon and others.  That is the source of anxiety for the application providers–they are seen as having more elasticity in pricing than end-users.

The existence of provider competition, however, also weighs heavily against the need for government intervention.  If an ISP interferes with the open and transparent Internet, customers will know and they will complain. Ultimately they will find a provider that gives them full and unfettered access.   (There are plenty of interested parties who help consumers with the “know” part of that equation, but still, I fully support the principle of ISP transparency with regard to network management principles.  Few consumers would actually read them, and fewer still understand them, but it’s still a good practice.)

If the market really does fail, or fails in significant local ways (rural or poor customers, for example), then some kind of regulatory intervention might make sense.  But it’s a bad idea to regulate ahead of a market failure, especially when dealing with technology that is evolving rapidly.  In the last ten years, as I argue in The Laws of Disruption, the Internet has proven to be a source of tremendous embarrassment for regulators trying to “fix” problems that shift under their feet even as they’re legislating.  Often the laws are meaningless by the time the ink is dry or—worse—inadvertently make the problems worse after the fact.

Nevertheless, in October of last year the FCC proposed—in a 107-page document—six net neutrality rules that would codify what I described above and a number of peripheral, perhaps unrelated, ideas.  Right now the agency has only a net neutrality policy, and that policy, the D.C. Circuit Court of Appeals ruled, doesn’t constitute enforceable law.  Implicit in that rulemaking was the assumption that someone needed to codify these principles, that the FCC was that someone, and that the agency had the authority from Congress to be that someone.  (The court’s ruling made clear that the latter is not the case.)

There are good reasons to be skeptical that the FCC in particular is the right agency to solve this problem even if it is a problem.  Through most of its existence the agency has been fixed on regulating a legal monopoly—the old phone company—and on managing what were very limited broadcast spectrum—now largely supplanted by cable and more sophisticated technologies for managing the spectrum.

The FCC, recall, is the agency that watches broadcast (but not cable) television and issues fines for indecent content—an activity they do more, rather than less, even as broadcast becomes a trivial part of programming reception.  Congress has three times tried to give the FCC authority to regulate indecency on the Internet as well, but the U.S. Supreme Court has stopped all three.

So if the FCC were to be the “smart cop on the beat” as Chairman Genachowski characterized his view of net neutrality, how would the agency’s temptation to shape content itself be curbed?

Worse, no one seems to have thought ahead as to how the FCC would enforce these rules.  If I complain that my access is slow today and I believe that must mean my ISP is acting in a non-neutral fashion, the agency would have to look at the traffic and inside the packets in order to investigate my complaint.  Again, the temptation to use that information and to share it with law enforcement under the name of anti-terrorism or other popular goals would be strong—strong enough that it ought to worry some of the groups advocating for net neutrality laws as a placebo to keep the ISPs in line.

The Investment Effect

It should be obvious that the course being followed by the FCC – the enactment of net neutrality rules in the first place and the increasingly desperate methods by which it hopes to establish its authority to do so—will cast a pall over the very investments in infrastructure the FCC is counting on to achieve the worthy goals of the NBP.  If nothing else, the reclassification NOI will invariably end in some heavy-duty litigation, which is likely to take years to resolve.  Courts move even more slowly than legislators, who move more slowly than regulators, all of whom aren’t even moving compared to the speed of technological innovation.

How serious a drag on the markets will regulatory uncertainty prove to be?  For what it’s worth, New York Law School’s Advanced Communications Law & Policy Institute today issued an economic analysis of the Commission’s proposed net neutrality rules, arguing that as many as 604,000 jobs and $80 billion in GDP loss would result from their passage.  Matthew Lasar at Ars Technica summarizes the report, which I have not yet read.

But one doesn’t need sophisticated economic analysis to understand why markets are already reacting poorly to the FCC’s sleight-of-hand.  The net neutrality rules the FCC proposed in October would, depending on how the agency decided to enforce them, greatly limit the future business arrangements that broadband providers could offer to their business customers.

Application providers worry that the offer of “fast lane” service invariably means everything else will become noticeably slower (not necessarily true from a technical standpoint).  But in any case the limitation of future business innovations by providers is bound to discourage, at least to some extent, up-front investments in broadband, which are characterized by high fixed costs and a long payback.

Worse, the proposed rules would also apply to Internet access over cellular networks, which is still in a very early stage of development and has much more limited capacity.  Cellular providers have to limit access to video and other high-bandwidth applications just to keep the networks up and running.   (Some of those limits are the result of resistance from local regulators to allow investments in cell towers and other infrastructure.)  The proposed rules would require them not to discriminate against any applications, no matter how resource-intensive.  That simply won’t work.

Investors are worried that the hundreds of billions they’ve spent so far on fiber optics, cellular upgrades and cable upgrades and the amount left to be spent to get the U.S. to 100 mbps speeds in the next ten years are going to be hard to recover if they don’t have flexibility to innovate new business models and services.

To Wall Street, the net neutrality rules are perceived not as enshrining a level playing field for the Internet so much as a land grab by content providers to ensure they are the only ones who can innovate with a free hand, pushing the access providers increasingly to a commodity business as, for example, long distance telephony has become.  Why should investors spend hundreds of billions to upgrade the networks if they won’t be able to make their money back?

Investors are also concerned more generally that the FCC will implement and enforce the proposed neutrality rules in unpredictable ways, bowing to lobbying pressure by the content companies even more in the future.  Up until now, the FCC has played no meaningful role in regulating access or content, and the Internet has worked brilliantly.  The networks the FCC does regulate–local telephone, broadcast TV–are increasingly unprofitable.

How would the FCC proceed if the rules are enrolled and upheld?  The NPRM says only that the Commission would investigate charges of non-neutral behavior “on a case-by-case basis.”  That approach is understandable when technology is changing rapidly, but at the same time it introduces even more uncertainty and more opportunities for regulatory mischief.  Better to wait until an identifiable problem arises, one that has an identifiable solution a regulatory agency can implement more efficiently than any other institution.

It’s possible of course that access providers, especially in areas where there is little competition, could use their leverage to make bad business decisions that would harm consumers, content providers, or both.  But that that risk could be adequately covered by existing antitrust law, or, if necessary, by FCC action when the problem actually arises.

The problem isn’t here yet, other than a handful of anecdotal problems dealt with quickly and without the need for federal intervention.  Again, the danger of rulemaking ahead of an actual failure of the market is acute, especially when one is dealing with an emerging and fast-changing set of technologies.

The more the FCC pushes ahead on the net neutrality rules, even in the face of a court decision that it has no authority to do so, the more irrational the agency appears to the investor community.  And given the almost complete reliance for the broadband plan on private investment, this seems a poor choice of battles for the FCC to be spending its political capital on now.

Preserving the Ecosystem

There’s a forest among all these trees.  So far, the Internet economy has thrived on a delicate balance today between infrastructure and the innovation of new products and services that Internet companies build on top of it.  If the infrastructure isn’t constantly upgraded in speed, cost, and reliability, entrepreneurs won’t continue to spend time and money building new products.

At the same time, if infrastructure providers don’t think the applications will be there, there’s no reason to invest in more and better capacity.  So far, consumers have shown a voracious appetite for both capacity and applications, in part because there’s been little to make them doubt more of both are always coming.

Given the long lead time for capital investments, the infrastructure providers have to bet pretty far into the future without a lot of information.  Sometimes they overbuild, or build ahead of demand (this has happened at least twice in the last ten years); sometimes (in the case of cellular), the applications arrive faster than the capacity after a long period of relative quiet.   3G support was an industry embarrassment until the iPhone finally put it to good use.

By and large the last decade has seen remarkable success in getting the right infrastructure to the right applications at the right time, as evidenced by the fact that the U.S. is still the leader by far in Internet innovation.   The U.S., despite its geography and economic diversity, is also still the leader in broadband access, with availability to over 96% of U.S. residents.  According to the latest OECD data, the U.S. has twice the number of broadband subscribers as the next-largest market.  Our per capita adoption is lower, as are our broadband speeds—both sources of understandable concern to the authors of the NBP.

The larger issue here is that regulatory intervention, or even the looming possibility of it, can throw a monkey wrench in all that machinery, and make it harder to make quick adjustments when one side gets too far ahead of the other.  Once the machine stalls, restarting it may be difficult if not impossible.   The Internet ecosystem works remarkably well.  By contrast, even regulatory changes intended to smooth out inefficiencies can wind up having the opposite effect, sometimes disastrously so.

That above all else should have given the FCC pause today in its vote.  Apparently not.