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Neutrality (see all subjects)
 

Thursday, August 12, 2010

Our CNET Column: "Just say no to Ma Bell-era Net neutrality regulation"

CNET has just run the guest column, "Just say no to Ma Bell-era Net neutrality regulation," Adam Thierer and I wrote in response to "Just say no to fake Net neutrality" by Derek Turner (of Free Press), which decried the win-win-win compromise suggested by Amazon's Paul Misener, just as Free Press has more recently denounced the compromise proposed by Google and Verizon.

We make a few key points:


  1. History demonstrates the dangers of regulatory capture, and the costs to consumers of regulation from lost investment and innovation.

  2. These dangers and costs far outweigh the purported benefits of regulation (in addressing a non-existent harm).

  3. Broadband markets are competitive enough to prevent the kinds of abuses advocates of net neutrality regulation fret about.

  4. Government could foster more broadband competition by deregulating spectrum and local wireline franchising.


I've been having a lively debate with the commenters on the piece, so feel free to join in! Unfortunately, we don't seem to be getting much substantive engagement with our argument--just the usual mix of "These guys are just corporate whores!" and "Can't you see the sky is falling?"

posted by Berin Szoka @ 10:21 AM | Broadband, Neutrality

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Friday, July 23, 2010

NRO Op/Ed: Government v. Google: Why Free Marketeers Should Rally Against Search Neutrality

"Government's view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it." Thus did Ronald Reagan capture the essence of big government. The two biggest challenges facing defenders of free markets in technology policy lie in Reagan's second point:


  • Telling the "Good News Story" about how "it" (human ingenuity--what the great economist Julian Simon called our "Ultimate Resource") keeps "moving" (by inventing new hardware, software, services, etc.)

  • Holding the line against efforts to extend the regulatory regimes of the past over new technologies, and chipping away at those regimes as best we can


So one might think that believers in limited government would celebrate a company like Google as a great American success story: A university research program launched by two smart kids (one of whom fled Communist oppression) that grew from a garage start-up into a global tech titan whose wide-ranging innovations are revolutionizing more and more of the economy. Surely free marketeers would rally to the defense of such a company when, say, the New York Times--that if-it-moves-regulate-it bastion--calls for bringing "into the regulatory fold," right?

Unfortunately, all too many free marketeers seem willing to hang Google out to dry, or at least stay silent because they resent the pro-regulatory policy positions taken by the company or the political leanings of its employees and leadership. The company has hardly been a champion of digital capitalism in Washington, allying itself with a number tax/regulate/subsidize groups, pushing for net neutrality regulation, and using antitrust as a sword against its rivals (some of whom seem willing to return the favor). But the principles at stake are too important for free marketeers to gloat, as Adam Thierer argued in an op/ed for National Review Online earlier this week: Government vs. Google: Why Free Marketeers Should Rally Against "Search Neutrality."

Continue reading NRO Op/Ed: Government v. Google: Why Free Marketeers Should Rally Against Search Neutrality . . .

posted by Berin Szoka @ 1:24 PM | Neutrality

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Thursday, June 10, 2010

What the Oil Spill Really Says About Net Neutrality: Regulatory Capture v. the Nirvana Fallacy

A diverse group of technology companies including broadband, video and wireless providers as well as Google, Microsoft and hardware giants like Intel and Cisco today launched the Broadband Internet Technical Advisory Group (BITAG or TAG) to provide exactly the kind of self-regulatory forum for dealing with concerns about network management practices that we at PFF have long called for--most recently in Adam Thierer and Mike Wendy's recent paper, "The Constructive Alternative to Net Neutrality Regulation and Title II Reclassification Wars." But rather than applauding BITAG, the regulatory radicals at Free Press insisted that:

this or any other voluntary effort is not a substitute for the government setting basic rules of the road for the Internet.

There must be a separate FCC rulemaking process, which can take the recommendations of this or any other voluntary advisory group into account, but rubber-stamping those recommendations would ignore the agency's mandate to create public policy in the public interest. Allowing industry to set its own rules is like allowing BP to regulate its drilling. The Comcast BitTorrent case shows that without government oversight, Internet Service Providers will engage in what are already deemed by engineers to be bad practices


Free Press certainly wouldn't have the influence they do if they weren't so good at picking metaphors. But what does the oil spill really teach us about regulation? The Wall Street Journal notes the growing outrage on the political Left against president Obama from those who are "furious and frustrated that the President hasn't demanded the heads of BP executives on pikes." But the Journal points out the central irony of the situation:
The [so-called] liberals' fury at the President is almost as astounding as their outrage over the discovery that oil companies and their regulators might have grown too cozy. In economic literature, this behavior is known as "regulatory capture," and the current political irony is that this is a long-time conservative critique of the regulatory state....

In the better economic textbooks, regulatory capture is described as a "government failure," as opposed to a market failure. It refers to the fact that individuals or companies with the highest interest or stake in a policy outcome will be able to focus their energies on politicians and bureaucracies to get the outcome they prefer.

Continue reading What the Oil Spill Really Says About Net Neutrality: Regulatory Capture v. the Nirvana Fallacy . . .

posted by Berin Szoka @ 9:22 PM | Broadband, Neutrality, Philosophy / Cyber-Libertarianism

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Monday, May 24, 2010

Facebook Triggers Another False Alarm over Corporate "Censorship"

Leo Laporte claimed yesterday on Twitter that Facebook had censored Texas radio station, KNOI Real Talk 99.7 by banning them from Facebook "for talking about privacy issues and linking to my show and Diaspora [a Facebook competitor]. Since Leo has a twitter audience of 193,884 followers and an even larger number of listeners to his This Week In Tech (TWIT) podcast, this charge of censorship (allegedly involving another station, KRBR, too) will doubtless attract great deal of attention, and helped to lay the groundwork for imposing "neutrality" regulations on social networking sites--namely, Facebook.

Problem is: it's just another false alarm in a long series of unfounded and/or grossly exaggerated claims. Facebook spokesman Andrew Noyes responded:

The pages for KNOI and KRBR were disabled because one of our automated systems for detecting abuse identified improper actions on the account of the individual who also serves as the sole administrator of the Pages. The automated system is designed to keep spammers and potential harassers from abusing Facebook and is triggered when a user sends too many messages or seeks to friend too many people who ignore their requests. In this case, the user sent a large number of friend requests that were rejected. As a result, his account was disabled, and in consequence, the Pages for which he is the sole administrator were also disabled. The suggestion that our automated system has been programmed to censor those who criticize us is absurd.

Absurd, yes, but when the dust has settled, how many people will remember this technical explanation, when the compelling headline is "Facebook Censors Critics!"? There is a strong parallel here to arguments for net neutrality regulations, which always boil down to claims that Internet service providers will abuse their "gatekeeper" or "bottleneck" power to censor speech they don't like or squelch competitive threats. Here are just a few of the silly anecdotes that are constantly bandied about in these debates as a sort of "string citation" of the need for regulatory intervention:

posted by Berin Szoka @ 11:02 AM | Antitrust & Competition Policy, Free Speech, Neutrality, Philosophy / Cyber-Libertarianism

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Thursday, May 6, 2010

NPR Interview on FCC's Third Way

I was interviewed this morning by NPR's Joel Rose on the FCC's broadband reclassification / "Third Way" proceeding (see more here & here) kicked off just today. Listen here to the NPR interview.

The following are some notes I prepared for our talk.

Thumbnail image for Mike NPR Shots 006.jpg

Continue reading NPR Interview on FCC's Third Way . . .

posted by Mike Wendy @ 3:31 PM | Antitrust & Competition Policy, Broadband, Capitol Hill, Communications, Cyber-Security, DACA, Internet, Net Neutrality, Neutrality, Privacy, Security, The FCC

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Tuesday, May 4, 2010

FCC: Toothless Regulator or Cop on the Beat?

I was invited to participate in a May 4th panel discussion hosted by the New America Foundation entitled "Federal Communications Commission: Toothless Regulator or Cop on the Beat?" We were asked to address whether the FCC has the authority to enforce its Network Neutrality principles, redirect the Universal Service Fund to promote broadband, or promote competition, in the wake of the D.C. Circuit's ruling in Comcast v. FCC, without taking the controversial step of "reclassifying" broadband Internet as a Title II common carrier service. The underlying premise being that the Comcast decision "threw a huge legal roadblock in the path of the FCC's National Broadband Plan—and President Obama's promise to preserve a non-discriminatory, open Internet—with its ruling this month that the Commission lacks the authority to prevent cable giant Comcast from blocking certain peer-to-peer applications." What follows is my analysis, as prepared for presentation.

Continue reading FCC: Toothless Regulator or Cop on the Beat? . . .

posted by Barbara Esbin @ 4:28 PM | Broadband, Net Neutrality, Neutrality, Regulation, The FCC

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Wednesday, April 14, 2010

Reclassification of Broadband Internet Access: No Slam Dunk

I was invited to participate in an April 13th conference call hosted by Kelly Cobb on behalf of the Internet Freedom Coalition to discuss the D.C. Circuit's recent decision in Comcast v. FCC and its impact on the FCC's Open Internet rulemaking proceeding. My task was to offer an explanation of the procedure by which the FCC might attempt to impose the Communications Act's "Title II" regulations on the Internet without congressional authority or approval, and what judicial challenges might emerge from such an action. What follows are my remarks, as prepared for presentation.

Continue reading Reclassification of Broadband Internet Access: No Slam Dunk . . .

posted by Barbara Esbin @ 1:52 PM | Broadband, Cable, Communications, Net Neutrality, Neutrality, The FCC, Wireline

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Tuesday, April 6, 2010

The Nobles Must Follow the Law

image of scales of justice

The D.C. Circuit ruled today in favor of Comcast in the company's challenge to an FCC enforcement action concerning its provision of Internet service. The court's ruling reaffirms the primacy of the rule of law and the legislative authority of Congress to determine whether and how our nation's communications networks are to be regulated. I have said from the outset in my "The Law is Whatever the Nobles Do" series that the FCC's action against Comcast's Internet network management practices was unlawful because Congress has not delegated to the FCC regulatory authority over the provision of Internet services, and the FCC may not self-generate such authority through creative use of the doctrine of implied or "ancillary jurisdiction." The court's decision rests on the foundational principles that the FCC's regulatory authority is not unbounded, the agency is not free to make it up as it goes along and the FCC possess no plenary authority to regulate an Internet service provider's network management practices. That is to say, the administrative nobles in our system must follow the laws as Congress writes them; they do not stand above the law and cannot self-generate their legal authority.

As the D.C. Circuit wrote, the FCC may properly exercise its ancillary jurisdiction over matters not expressly mentioned in the Communications Act, but only when that exercise is reasonably ancillary to—that is, in support of—an expressly-delegated regulatory responsibility. In its Comcast-BitTorrent Order, the FCC could not show, despite strenuous efforts, that regulating Internet network management practices was reasonably related to any of its express regulatory mandates in the Communications Act. This all-important limitation on the exercise of its implied powers, according to the court, is what keeps the agency from freeing itself "from its congressional tether." Paraphrasing an earlier Supreme Court decision, the court observed that the FCC's Comcast decision, not only "'strain[ed] the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts,'" it sought to "shatter them entirely."

Continue reading The Nobles Must Follow the Law . . .

posted by Barbara Esbin @ 4:16 PM | Broadband, Cable, Communications, Net Neutrality, Neutrality, The FCC

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Tuesday, February 9, 2010

Demystification of Net Neutrality

"Demystifying Net Neutrality" was the topic of a February 4th Webinar hosted by The Diffusion Group and VideoNuze, which is now available on the VideoNuze website. As a presenter, I endeavored to shed light on the controversial topic, along with Chris Riley of Free Press and two moderators, Will Richmond and Colin Dixon. While we may not have achieved full demystification of the concept, some interesting points of agreement and disagreement surfaced during the hour-long program.

The moderators set up the core questions: "Is net neutrality a solution in search of a problem? Or is net neutrality required to ensure a fair and open Internet?" As the reader may imagine, I argued, as I have in the past, that net neutrality remains a solution in search of a problem, and Riley argued, as Free Press has, that it is required to ensure a fair and open Internet. In my presentation, I focused on the lack of evidence of a market problem or consumer harms to be redressed by this regulatory remedy; the FCC's lack of "ancillary" jurisdiction to impose the proposed net neutrality mandates; and the possibility that the rules would be found to infringe on the First Amendment rights of broadband Internet service provider. Similarly, Riley, in his presentation, argued that broadband ISPs have the incentive and ability to engage in harmful discrimination in the carriage of Internet traffic; that we should not permit ISPs unbounded discretion to decide what traffic gets priority treatment; that the government need not wait for harm to occur but may be proactive in protecting consumers and competition; and that net neutrality would protect the free speech rights of consumers, as Free Press has maintained.

I was pleased, however, to find at least one, perhaps inadvertent, area of agreement. Riley gave as a policy goal of net neutrality the avoidance of "unbounded agency/provider discretion." Although we disagree on the need to curb provider discretion, I am in complete agreement with Riley's policy goal of avoiding unbounded agency discretion. In fact, that is why I have been so distressed by the FCC's claims that it has ancillary -- and utterly discretionary -- jurisdiction to regulate, or not regulate, the provision of Internet services without any regard to statutory limits. In comments that I filed in the FCC's net neutrality rulemaking, I demonstrated that Congress did not delegate to the FCC unbounded discretion to decide whether and how to regulate the Internet or the provision of Internet services. Such unbounded discretion is unacceptable as both a matter of administrative law and good government.

Continue reading Demystification of Net Neutrality . . .

posted by Barbara Esbin @ 8:32 AM | Broadband, Communications, Net Neutrality, Neutrality, Regulation, The FCC

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Wednesday, February 3, 2010

Copyrights, Copycense, and Nonsense

A revealing dispute has erupted between Ben Sheffner of Copyrights & Campaigns and the not-so-competent Editors of the website Copycense, which humbly describes itself as "the online journal of code and content."

To shorten a longer story, Professor Edward Felten recently disclosed a summary of the results of a forthcoming "Sahi-Felten study" of files available to users of a "trackerless" BitTorrent-based file-sharing program. According to Professor Felten's summary, statistical analysis showed that 99% of the files available were infringing. Ben Sheffner then authored a blog post that described this summary as "[v]aluable information to keep in mind while debating net neutrality rules and IPS's right to manage their networks and fight piracy."

But Mr. Sheffner's observation outraged the allegedly pious data-prudes at Copycense. In an unsigned "Editorial" entitled Science vs. Advocacy, the crack team at Copycense thus sanctimoniously denounced Mr. Sheffner for daring to suggest that such imperfect "summary" data should ever affect important debates about network neutrality: Calling his post "reflexive" and "impetuous" they denounced his conclusion: "drawing such correlations at this point--with respect to the summary, the resulting paper, (which has not yet been vetted, reviewed, or published), or Felten's perceived or actual personal or professional biases--is premature and careless."

I will not summarize the droning Copycense account of a few of the many, many things that can inarguably go wrong during statistical analyses of sociological phenomena. Indeed, that would be pointless because Copycense itself actually concluded its sanctimonious sermon by agreeing with the substance of the conclusions that it had just denounced as "premature and careless":

"We can say with a strong level of confidence, however, that the way the current statutes are written, it would have been shocking if anything significantly less than 100% of the files on BitTorrent were technical infringements of copyright law."
How thoughtful of Copycense to admit that it knows better than to take seriously its own prudish fretting about theoretical defects that could arise from yet-to-be-reported nuances of the Sahi-Felten study. Even though Copycense currently lacks all the data that it claims to need in order to fully and completely assess all of the implications of this forthcoming study, Copycense still admits that even persons as erudite as its own Editors can, nonetheless, already "say with a strong level of confidence [that]... it would have been shocking if anything significantly less than 100% of the files on BitTorrent were technical infringements of copyright law."

Continue reading Copyrights, Copycense, and Nonsense . . .

posted by Thomas Sydnor @ 1:56 PM | Copyright, Cyber-Security, E-commerce, IP, Internet, Mass Media, Neutrality, Think Tanks

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Thursday, January 28, 2010

Groundhog Day 2010: Should the FCC Reclassify Broadband Internet Service?

posted by Barbara Esbin @ 9:29 PM | Broadband, Communications, Internet, Neutrality, Regulation, The FCC

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Friday, January 15, 2010

R.I.P. Ancillary Jurisdiction; Hello Common Carriage

posted by Barbara Esbin @ 12:44 PM | Broadband, Cable, Communications, Internet, Net Neutrality, Neutrality, Regulation, The FCC, Wireline

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Tuesday, December 29, 2009

2010: The Year of "Everything Neutrality"

posted by Berin Szoka @ 10:49 AM | Broadband, Neutrality

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Monday, December 28, 2009

U.S. Legislators CANNOT Trust Claims that 37% of the DMCA Takedown Notices That Google Receives Fail to State "Valid Copyright Claims."

posted by Thomas Sydnor @ 12:21 PM | Copyright, IP, Innovation, Internet, Mass Media, Neutrality

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Thursday, December 17, 2009

EC Closes Browser Ballot Chapter in Endless Epic of Microsoft Persecution with Dangerous Precedent

posted by Berin Szoka @ 9:38 AM | Antitrust & Competition Policy, Neutrality

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Wednesday, November 18, 2009

Reviving Open Access

posted by Barbara Esbin @ 5:36 PM | Cable, Net Neutrality, Neutrality, The FCC

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Thursday, November 12, 2009

Odlyzko on Net Neutrality, Price Discrimination, PrivacyFail, Search & Cloud Neutrality

posted by Berin Szoka @ 5:46 PM | Add category, Broadband, Neutrality, Philosophy / Cyber-Libertarianism

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Tuesday, November 10, 2009

Against Browser Ballot Mandates: EC Now Designing Software?

posted by Adam Marcus @ 1:40 PM | Antitrust & Competition Policy, Media Regulation, Neutrality, Software

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Thursday, October 8, 2009

My Net Neutrality Debate with Public Knowledge

posted by Berin Szoka @ 10:35 PM | Antitrust & Competition Policy, Broadband, Innovation, Neutrality

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Thursday, October 1, 2009

Verizon CTO Endorses Metered Broadband, Which Should Allay Net Neutrality Concerns

posted by Berin Szoka @ 5:54 PM | Broadband, Neutrality

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Wednesday, September 30, 2009

Net Neutrality Regulation => Online Product/Service Definitions => Online Taxation

posted by Berin Szoka @ 9:40 AM | Broadband, Neutrality, Philosophy / Cyber-Libertarianism

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Tuesday, September 29, 2009

Do Americans Really Want "Net Neutrality" Regulation?

posted by Berin Szoka @ 7:40 AM | Broadband, Neutrality, Privacy

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  Our CNET Column: "Just say no to Ma Bell-era Net neutrality regulation"
NRO Op/Ed: Government v. Google: Why Free Marketeers Should Rally Against Search Neutrality
What the Oil Spill Really Says About Net Neutrality: Regulatory Capture v. the Nirvana Fallacy
Facebook Triggers Another False Alarm over Corporate "Censorship"
NPR Interview on FCC's Third Way
FCC: Toothless Regulator or Cop on the Beat?
Reclassification of Broadband Internet Access: No Slam Dunk
The Nobles Must Follow the Law
Demystification of Net Neutrality
Copyrights, Copycense, and Nonsense
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