toward which the debate could, or should, extend.

First, it is interesting to recall the opinion of Zittrain, for whom “ Internet is better conceptualized as a generative grid that includes both PCs and networks rather than as an open network indifferent to the configuration of its endpoints.” 10 This way, what occurs in the pipes would be only a part of the problem and what he defines as “PC openness” could be set out. In fact, this is the path where the more theoretical journey has taken place, thanks basically to the work of open source software supporters. However, it is surprising that connections with network neutrality have not been explored in greater depth. And this is not just about PCs. As other electronic devices (consider mobile handhelds, and more specifically, smartphones) win the favor of consumers, so does their role as intermediary (always neutral?) between applications or content creators and possible clients.

Second, quite outstanding is the fact that, until the FCC’s Notice of Proposed Rulemaking, released Oct. 22, 2009, and with a few significant exceptions (such as Frieden1, Wu8), no one had considered wireless connections in their analyses. It can be said that, although not specifically stated, a certain degree of consensus for “naturally” extending the current arguments to Wi-Fi or WiMax networks has probably existed. But what about mobile operators? If there is a service where network neutrality has been really breached, it is the data access service provided by mobile operators. The extreme discrimination model (“walled garden”) is still used by operators throughout the world. Walled gardens have been accepted as another of the possible business strategies of companies operating in the sector, and almost no one has torn their hair out. Without going to the extreme represented by walled gardens, are there any circumstances, as the FCC asks, in which it could be reasonable for a wireless network to block video, VoIP, or peer-to-peer applications?

Last, the focus must be targeted toward some of the applications that have become the de facto door for accessing the Internet and that can be considered as instrumental as the

What is clear is that
in a convergent
scenario the
coexistence of
different regulatory
criteria does
not seem fair.

network itself. It must be considered that for every business project where it is vital that the network owner does not discriminate the traffic generated by the application, there are probably another 100 whose concern is limited to the order in which they appear in a specific portal or search engine. And here one can find a clear asymmetry between what is supported “downward” and what actually happens “upstairs.” Naturally, search engines, portals, and aggregators of diverse content or di-rectories quickly joined the defenders of network neutrality…a fact that does not prevent them from prioritizing certain customers: those with which they have a “special relationship” or, simply, those that pay. That is exactly the opposite of what these same companies demand from network operators. Let us clarify that discrimination is not always arbitrary or unfair. In particular, search engines must follow some regulatory guidelines2 but still discrimination is possible. Along the same line, Pasquale5 or Odlyzko4 have already discussed the parallelism between the basic principles of transparency that should similarly inform carriage and search regulation.

Note that the use of the condition in the title of this column means the authors do not call for the imposition of a “universal” neutrality affecting networks, equipment, software, and applications (could we call it gatekeeper neutrality?). Without engaging in such a discussion, what we do assert is that the analysis, in its current dimension, does not go far enough.

Neutrality has other facets, certain-
ly. Another neutrality, often presented
as a cornerstone for correct regula-
tion—technological neutrality—al-
ready demands an initial reconsidera-
tion of the reasoning. But even beyond
that, in a convergent industry where
agents from “different worlds” often
fight to conquer the same links in the
value chain (integrating as many ac-
tivities as possible for a tighter control
of the value network), the rules of the
game should be equal for everyone.
While most of these agents are judged
ex post, and their activity is limited
only when it harms competition or
hampers the development of the mar-
kets, others have to comply with strin-
gent ex ante regulations. This does
not necessarily imply that the anti-
trust-oriented approach should be ex-
tended to any party. On the contrary,
a general forward-looking regulatory
model that would guarantee certain
rights and abilities (such as privacy
and interoperability) would probably
be needed.

References

1. Frieden, r. the costs and benefits of separating wireless telephone service from handset sales and imposing network neutrality obligations. In Proceedings of the First I TU- T Kaleidoscope Academic Conference Innovations in NGN: Future Network and Services (Geneva, May 12–13, 2008), 273–278.

2. Gasser, u. regulating search engines: taking stock and looking ahead. Yale Journal of Law & Technology 8 (2006), 202–234.

3. larouche, P. the network neutrality debate hits europe. Commun. ACM 52, 5 (May 2009), 22–24.

4. odlyzko, a. network neutrality, search neutrality, and the never-ending conflict between efficiency and fairness in markets. Review of Network Economics 8, 1 (2009), 40–60.

5. Pasquale, F. Internet nondiscrimination principles: commercial ethics for carriers and search engines. University of Chicago Legal Forum 2008 (2008), 263–300.

6. Van schewick, b. and Farber, d. net work neutrality nuances. Commun. ACM 52, 2 (Feb. 2009), 31–37.

7. weinstein, l. Ma bell’s revenge: the battle for network neutrality. Commun. ACM 50, 1 (Jan. 2007), 128.

8. wu, t. wireless carterfone. International Journal of Communications 1 (2007), 389–426.

9. yoo, c. network neutrality and the economics of congestion. Georgetown Law Journal 94, 6 (2006), 1847–1908.

10. Zittrain. J.l. the generative Internet. Harvard Law Review 119, 7 (2006), 1974–2040.

 

José Luis Gómez-Barroso ( [e-mail]) is an associate professor in the department of applied economics and economic history at the national university of distance education, spain. Claudio Feijóo ( [e-mail]) is a professor at the universidad Politécnica de Madrid, spain, and a senior Member of acM.

copyright held by author.