toward which the debate could, or
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
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-
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
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
5. Pasquale, F. Internet nondiscrimination principles:
commercial ethics for carriers and search engines.
University of Chicago Legal Forum 2008 (2008),
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),
10. Zittrain. J.l. the generative Internet. Harvard Law
Review 119, 7 (2006), 1974–2040.
José Luis Gómez-Barroso ( firstname.lastname@example.org) is
an associate professor in the department of applied
economics and economic history at the national
university of distance education, spain.
Claudio Feijóo ( email@example.com) is a professor at
the universidad Politécnica de Madrid, spain, and a senior
Member of acM.
copyright held by author.