Communications - February 2009

peting with the network provider. Similarly, a network provider may have an incentive to exclude or slow down selected bandwidth-intensive applications to manage bandwidth on its network, even if the network provider does not offer a competing application itself. At the same time, the resulting harm—users’ inability to participate in social, cultural or democratic discourse related to the blocked content, their inability to use the Internet in the way that is most valuable to them, or application developers’ difficulty to obtain funding for an application—is caused by the blocking as such, not by the motivations that were driving it.

Second, even blocking that hurts

Rebuttal: David Farber

I thinK aLL of us would agree with a basic premise underlying Barbara van Schewick’s comments—that the ability of consumers and business to access the content and applications of their choice, without interference, is vital to the continued evolution of the Internet and the innovation, social progress, and economic advancements it promises.

But van Schewick paints with too broad a brush. She asserts “a rule against blocking and discrimination is at the core of all Net neutrality proposals.” If only that were the case—ask six different Net neutrality proponents and you’ll get six different definitions.

illUstration by leander herzog

Van Schewick suggests there are incentives to discriminate or interfere with traffic. Providers are not free to operate in the market as they wish with no government role or policies. Since 2003, the FCC has had a set of principles in place it uses to oversee the broadband market. It uses them to assess developments in the market and where necessary, to engage in enforcement activities. The FCC used these principles in the Comcast case. Whether you agree or disagree with the FCC’s findings and conclusions, the reality is the principles have acted as a framework not only for the FCC, but

a competitor is not necessarily prohibited by Farber’s proposed regime. In U.S. antitrust law, which Farber’s regime is designed to mirror, the term “anticompetitive” has a much narrower meaning than nonlawyers would expect.^aFor example, if a network provider excludes an application such as Bit Torrent from access to the provider’s Internet service customers, this only constitutes “ anticompetitive” conduct under U.S. antitrust law if it creates a “dangerous probability of

a In particular, as Farber explains in his excerpt from an Op-Ed with economists Michael Katz and Gerald Faulhaber and legal scholar Chris Yoo, it requires a proof of “harm to competition,” not just to a competitor.

success” that the network provider will monopolize the nationwide market for BitTorrent-like applications. That the network provider’s customers cannot use BitTorrent, or that BitTorrent is excluded from a part of the nationwide market, is irrelevant in the context of antitrust law, but not in the context of the network neutrality debate that focuses on different types of harm.

Prohibiting only “anticompetitive” conduct will not prevent all relevant discrimination. To protect user choice and the Internet’s ability to realize its potential, we need rules that prohibit blocking and discrimination of applications and content regardless of the underlying motivation and independent of the network provider’s market share.

also for industry, consumers, and advocates. While these principles are not regulations, they are powerful in the sense that they set expectations and they have the merit of being flexible and adaptive and in that sense much more in sync with the Internet’s core underpinnings.

In addition to the FCC’s principles, the consumers are protected by many “eyes” watching the Internet and how it is working, including the FCC’s enforcement role, the consumer protection and antitrust oversight of the FTC, and competition among providers. Because the Internet’s protocols are open and because there are literally thousands of networks, millions of Web sites, and more than a billions of users online, there are lots of folks watching what is going on at all levels of the Internet. Companies doing dumb things won’t get away with it too long, despite her comments to contrary. Consumers do have to be aware of what is going on in order to help ensure that companies are not taking actions that may harm them. That is why while regulations and new laws are potentially harmful in my view, there are some actions that should be taken.

There does need to be far more transparency on the part of companies regarding how their broadband services work, what types of network management activities they engage in and how

those activities might affect consumers. Content and applications providers too need to be far more transparent about how their applications affect the Internet and consumers themselves.

Moreover, more transparency at the higher levels of the Internet— particularly the backbone—would help academics and Internet experts to better understand how well the Internet is working, what applications may be causing the most problems, and where network congestion problems are occurring or likely to occur.

Finally, Internet experts and academics need to avoid policy polemics and engage in more rigorous analysis, assessments, and fact-based reporting on issues like congestion. While there is not as much data out there as we would like, we can do more to develop rigorously balanced analysis that can help policymakers understand emerging issues around broadband networks and applications.