Wednesday, March 3, 2010 - The Progress & Freedom Foundation Blog

Reflections on Richard Bennett's "Going Mobile: Technology and Policy Issues in the Mobile Internet"

I was invited to participate on a March 2 panel discussion on the release of Richard Bennett's new paper, "Going Mobile: Technology and Policy Issues in the Mobile Internet," along with Harold Feld from Public Knowledge and Noah Clements, outside counsel to Association for Competitive Technology. A video of the paper presentation event is available on the ITIF website. What follows are my remarks, as prepared for presentation.

Bennett's Going Mobile paper is an important contribution to the growing net neutrality literature. It elaborates on his excellent earlier paper, "Designed for Change: End-to-End Arguments, Internet Innovation, and the Net Neutrality Debate," in describing how the Internet was "designed for change," and giving reasons why heavy-handed net neutrality mandates are particularly inappropriate for the mobile Internet.

The Mobile Internet, like the Internet as a Whole, Remains a Work in Progress - It Needs to Continue to Change

Going Mobile traces the historical development of the fixed-line Internet and mobile telephone networks, and identifies points of friction where these two very separate worlds collide in today's nascent mobile Internet market.

The question raised is this: who is in the best place to resolve these frictions, an administrative agency like the FCC, by way of notice-and-comment proceedings, or network engineers, operators, and applications developers working cooperatively through standards setting or other dispute resolution bodies?

Bennett correctly suggests a "co-regulatory" approach that leaves resolution of network engineering and operational problems to the network engineers, operators and content, applications, and services developers. We should heed Bennett's admonition to let the Internet experiment continue under a "light-touch" regulatory framework.

Internet Engineers Fear a Lack of Change While Net Neutrality Advocates Fear Change

Another important point that Bennett raises is while Internet engineers fear a lack of change, net neutrality advocates fear change. The "best efforts" Internet built on end-to-end design concepts "just works" today, according to Bennett, and is under great strain as more and more users join and more and more bandwidth intensive applications are developed; it must change just to keep up. This is true in both the fixed-line and mobile Internet markets, but is a more pressing issue for the mobile operator due to capacity and spectrum constraints.

Bennett's Helpful Policy Suggestions on "Reasonable Network Management" and "Disclosure"

Going Mobile suggests that the way forward should entail a careful and diligent examination of historical rules and precedents with an eye to creating a new framework that will enable the next generation of networking to flourish. This is absolutely correct.

We now depart "Planet Engineering" and arrive on "Planet Law."

The FCC Proposes to Regulate "the Internet"

In comments filed in the Net Neutrality rulemaking, I demonstrated that from a legal perspective, the FCC's proposed rules would constitute regulation of "the Internet." This is true whether one uses the definition of "the Internet" contained in either section 230 of the Communications Act, the FCC's Net Neutrality NPRM, or an earlier FCC definition of the Internet.

Bennett provides a useful explanation of what "the Internet" is from an engineering perspective: it is a virtual network that each individual network "joins" as a "member network" rather than a discrete physical network that is "accessed." That is, a "network of networks" interconnected through the use of common protocols. This view is reflected in all relevant definition of "the Internet."

This brings me to the question of the FCC's legal authority to adopt its proposed net neutrality rules.

The Self-Perpetuating Regulatory Machine

Glen O. Robinson, Former FCC Commissioner and Professor of Law Emeritus at UVA School of Law, gave a fabulous lecture on February 18th at the George Mason University School of Law entitled, "Regulating Communications: Stories from the First Hundred Years." Professor Robinson discussed the tendency of regulation to persist and spread, long after the reasons for its origins have ceased to exist and often without explicit legislative direction. Among the topics he covered was the FCC's implicit or "ancillary jurisdiction."

The Jurisdictional Dilemma

Bennett's suggestions for building a better net neutrality mouse-trap leave to one side the question of who is to be doing the building, and under what body of law.

In Closing

Bennett's suggestions for what sensible rules that take economic and engineering concerns into account should include are sound, but the fundamental question remains: must these be mandated as enforceable rules by a sector-specific regulatory body or may we continue to rely on market forces, backed up by general antitrust and consumer protection laws, to protect consumer interests? I remain unconvinced that a priori FCC rules are the way to go.

Regulators should turn away from creating unnecessary regulatory constraints on a market that is functioning reasonably well today, and focus instead enabling the further growth and development of Internet services, fixed and mobile, by removing regulatory impediments.

We are already hearing about some very promising steps in this direction from the FCC's National Broadband Plan task force. With any luck, the signals from the FCC's right brain will penetrate to its left brain and signal the net neutrality rulemaking team to "stand down."

posted by Barbara Esbin @ 2:19 PM | Broadband , Communications , Net Neutrality , Regulation , The FCC