Chairman Martin is getting some over-the-top negative reviews on his DSL order and its supposed hedging on the 'net neutrality' principles. "Open Internet" advocates like Susan Crawford, the delightfully dyspeptic David S. Isenberg and Joho the blog have a cautiously pessimistic take on the 'net neutrality' principles the Chairman announced.
Such pessimism almost makes me want to reconsider my correlative pessimism that the FCC is heading down the path to mandating 'net neutrality.' Almost, but not quite.
David S. Isenberg's rather too close parsing of the Chairman's commitment to 'net neutrality' typifies both the strength and weakness of the net neutrality principles. The weakness is: a) that these principles are better for reflecting back ones own biases on this issue than having actual substance; and, b) general principles without actual application of those principles to a concrete situation are of little use.
b), of course, can be a good thing. Is "net neutrality" a good thing? The right answer to this is "maybe," under certain circumstances; but not under many, if not most, others. Thus, Chairman Martin's qualifications and tentativeness (which, as I recall aren't too different than Chairman Powell's) of net neutrality principles should be seen as general standards, not ironclad rules. This is just sound regulation that waits for specific factual circumstances and specfic claims of harm before making a broad, prophylactic rule that could potentially do a great deal of harm to the business model, investment incentives and consumer welfare.
In a way, net neutrality has its antecedents in public utility law prohibitions on "undue discrimination." In the abstract, this rule sounds good. It ensures equity and fair treatment. In practice, application of an undue discrimination rule was used to justify cross subsidies, raise costs to politically less attractive or organized classes, limit differentiated pricing or packaging, and justify averaged prices that distort investment and growth patterns. Likewise, a net neutrality rule could do the same for the broadband space: force light bandwidth users to subsidize heavier ones, limit the ability to differentiate packages and distort investment incentives and patterns.
Before we invite any regulator into specifying what broadband providers can offer to their customers, we had better be very sure before-the-fact of the harm we are trying to prevent. To date, we have little evidence of such harm, and the specific instances of port-blocking have been remedied (but see, Let Clearwire be Clearwire). There is undoubted ambiguity to the FCC's current posture toward 'net neturality' regulation. I remain suspicious that the principles can too easily be turned into rules; the other side of the spectrum believes the principles are too weak. I'd still prefer a categorical statement that the FCC is not going to enter here without clear proof of harm, but given the political context perhaps it did just the right thing.