communications of the acm
|february 2009|vol. 52|no. 2
february 2009|vol. 52|no. 2|
communications of the acm
I l l u s t r a t I o n b y l e a n d e r H e r z o g
es and applications oered by searchengine companies, online content pro- viders, and Internet portals.The undamental act o the U.S.broadband capabilities is that we have alandline duopoly consisting o the cablecompanies and the “telephone” acili-ties—cable data and DSL. Each membero the duopoly is expanding their physi-cal plant—both are evolving to ber toeither the home or close to the homeand both are targeting a complete set o subscriber services rom phone to videoto data. In the long run there is no obvi-ous winner in terms o technology andmaybe even in terms o services oered.In the short run the competition be-tween these duopolies encourages themodernization o their physical plantsand the enhancement o their services. All this sounds great or all. So whereis the problem? The issue o Net neu-trality rst arose in the public’s view ina remark by one o the carriers—SBC(now the “new ATT”) —that servicesthat use the acilities provided to reachtheir customers should pay a ee to thecarriers or the use o their acilities.This trial balloon raised a restorm with Internet-based companies suchas Google who essentially argued thattheir customers were paying their Inter-net access ees in order to gain access toGoogle’s services and that Google waspaying the terminating carrier directly or high-speed access. They and othersdemanded that the U.S. Congress passlaws requiring essentially open accessto the data networks on an equal-ser- vice-to-all basis. They asked the FCC toexercise their regulatory powers to re-quire this in the absence o any specicCongressional actions.In both cases the cure might be worse that the disease. The ability o the U.S. Congress to pass eective leg-islation in the telecommunicationsarea is open to question. The Telecom-munications Act o 1996 was an at-tempt to provide unbundled access tothe last-mile wire loop in order to allow and encourage the rise o alternativedata carriers. Experience has shownthat this portion o the bill was worsethan ineective. Those companies who believed the law would be eectivelost a lot o money as the incumbentsresisted and were orced to the courts.The incumbents argued that the exis-tence o these unbundling obligationsundermined the incentives or the in-cumbents or anyone else to make theheavy investment required or build-ing new next-generation broadbandnetworks. Counting on the FCC has yielded mixed results. Like Congress,its decisions are subject to infuenceby political considerations and spe-cial interest goups as administrationscome and go. The FCC has a minimumamount o technical knowledge aboutthe Internet and thus even when it acts,oten misses the mark and can end upin lengthy court actions that an innova-tive new company cannot survive.Recently there have been a numbero activities that have been attacked,sometimes validly, as being against thepublic good and against the FCC guide-lines. The result o this was an FCC ac-tion telling Comcast to stop a particularorm o network action being used by them or network management, There were public hearings prior to the ac-tion during which time there was a mixo technical input and public discus-sion, all inormal—that is, not sworntestimony as required in ormal hear-ings. I will not argue the validity o
thecriticism, except to say technique usedseemed not to actually work but I wouldcomment that the procedure, such as was used, most likely is not an eective way o gathering critical technical inor-mation and is all too easily turned into apolitical show. It is also possibly illegalbut the courts will eventually determinethat when someone sues.
One o the major dangers thatace the uture o Internet business is whether those who control our accessto the Net will implement proceduresunder the guise o managing the Netthat will discourage competition tothose services they oer—such as videoover the Internet competing with thecable delivery o the cable operator.
In an Op-Ed article in the
in January 2007, Michael Katz,Christopher Yoo, Gerald Faulhaber,and I argued: “Public policy shouldintervene where anticompetitive ac-tions can reliably be identifed andthe cure will not be worse than the dis-ease. Policymakers must tread care-ully, however, because it can be di-fcult, i not impossible, to determinein advance whether a particular prac-tice promotes or harms competition.Current antitrust law generally solvesthis problem by taking a case-by-caseapproach under which private partiesor public agencies can challenge busi-ness practices and the courts requireproo o harm to competition beoredeclaring a practice illegal. This is asound approach that has served oureconomy well.”
Today, innovation and enhance-ments can occur at all levels o the In-ternet. Network providers, applicationsproviders, portals, search engines, andcontent providers can all innovate in various ways and make needed im-provements that can benet the Inter-net’s evolution. We should encouragethis innovation, while preserving theother core strengths o the Internet: itscooperative spirit and openness to en-
a Farber, D., Katz, M. Hold o on Net neutrality.
(Jan. 19, 2007), A19; http:// www.washingtonpost.com/wp-dyn/content/article/2007/01/18/AR2007011801508.html.
Cunterpint: davi Farber
et’s say that
I am completely in avor o network neutrality.But what would such a strong position actually mean? Thedefnition o “network neu-trality reshapes itsel like our lungs. Itexpands, drawing in causes ranging rom reedom o speech to open access.Then it contracts, exhaling a lot o hotair, and starts all over again. I would like very much to sharpen the ocus to thoseessential issues that will orm the basiso a uture expansion o broadband In-ternet services as well as the widespreaddeployment o such capabilities.
There is one constant about the In-ternet: it has continued to evolve andchange, oten in ways none o us—eventhose o us directly involved in its devel-opment—would have predicted. Thissimultaneously makes the Internet so valuable and so vulnerable. Its growthand expansion into all corners o soci-ety have made it a major part o globallie—but this expansion and the valueo the Internet also requently leads toeorts by some to try and predict andcontrol its direction. We’ve had cycles in the past wherethe Internet aced challenges due torapid growth or the development o new orms o malware or online attacks. Forexample, in the dial-up era o the 1980s,the growth o list servers and FTP ledownloads caused great concern aboutcongestion. In the 1990s, there was asimilar ear that the Internet would“crash” due to the rise o the Web. At var-ious times, ears o new orms o virusesand botnets have arisen as well. In every case, the cooperative eorts o networkproviders, applications developers, and volunteers with a great amount o ex-pertise have helped us make changesin protocols or add capacity that havehelped us get through.The evolution o the Internet is thusdriven equally by competition and co-operation, and by and large we contin-ue to nd ways, as messy and inormalas they oten are, to address problemsas they arise.I am concerned that we may suc-cumb to ears about possible dangersto the Internet’s uture and react withproposals to legislate or regulate itsoperations. Many o these ideas aredesigned around presumptions as tohow the Internet will evolve. We haveseen the Internet become a truly mass-market phenomenon on a global basis.Broadband networks have been andare being deployed that are moving ustoward higher levels o speed and capa-bility. Some now suggest there is the po-tential or abuses that might harm con-sumers as these networks grow. They argue that the companies deploying wire-line broadband networks mightuse their position as network owners toavor the applications and services they provide and/or harm competing servic-Still, there is a potential trade-o herethat legislators need to resolve. Allow-ing discrimination reduces user choiceand application-level innovation. It dis-torts competition in applications andcontent, harms economic growth andconstrains democratic discourse. Sac-ricing the vital innovative and com-petitive orces that drive the Internet’s value to get more broadband networksseems too high a price; as Tim Wu hasput it, it is like selling the painting to geta better rame.
While it is impossibleto protect application-level innovationand user choice once network providersare allowed to discriminate, there are ways to solve the problem o broadbanddeployment that do not similarly harmapplication-level innovation and userchoice (or example, i insucient pro-its really are the problem, subsidizing network deployment may be one).Changes in technology have givennetwork providers an unprecedentedability to control applications and con-tent on their network. In the absenceo network neutrality rules, our ability to use the lawul Internet applicationsand content o our choice is not guar-anteed. The Internet’s value or usersand society is at stake. Network neutral-ity rules will help us protect it.
1. Frichm, b.M. v schwick, b. nworkri h coomic of iformioprhihw: a rp o Profor yoo.
(smmr 2007), 383–428.2. li, l.
Testimony before the United StatesSenate, Committee on Commerce, Science, and Transportation, at its Hearing on: The Future of theInternet.
2 sio 110h u.s. Cor, 2008.3. v schwick, b. towr coomic frmworkfor work ri rio.
Journal onTelecommunications and High Technology Law 5
, 2(2007), 329–391.4. v schwick, b.
Written Testimony before the FederalCommunications Commission at its Second En BancHearing on Broadband Management Practices.
2008; hp://www.fcc.ov/ro_work_mm/hri-c041708.hm.5. v schwick, b.
Architecture and Innovation: The Roleof the End-to-End Arguments in the Original Internet.
MIt Pr, Cmri, Ma, Forhcomi 2009.6. W, t. Wh o ho cr o work ri.
(M 1, 2006).
Barbara van Schewick
(chwick@for.) i hco-ircor of sfor lw schoo’ Cr for Ir soci, i profor of lw sfor lwschoo, i profor ecric eiri( cor) sfor’ dprm of ecriceiri i sfor, Ca.thi com i pr rw o m cmicwork o work ri;
. thk o Jophgrf, lwrc li, lrr Krmr, Mrklm for comm o rir vrio of hi mri.
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