I my previous article I drew attention to this definitional issue. The issue exists because there is no broadly-accepted or legal definition of the term network neutrality; the legal definition is the more important of the two since it will persist and be enforcable even when discussion becomes confused. In the article before that one I listed a few major alternative, but not necessarily mutually-exclusive meanings of network neutrality. Every party to the discussion tends to list of wants in their particular definition of the term, and this is true whether it is consumers, carriers, content providers, the FCC and politicians. Even academics and industry analysts need to watched carefully since many are not neutral on neutrality; many have identifiable interests or ideological perspectives that can bias what they say, and the media tends to highlight those with the more extreme views.
Interested parties are therefore angling for influence and see the public relations battle as one where they want the prevailing understanding of network neutrality to align with their interests. It is also important to note that in addition to defining network neutrality, they also wish to define what it is not. For example, a network owner with media interests (such as Comcast or Bell Canada) might like to exclude equal traffic priority for other content providers from the network neutrality debate.
When these companies wish to create public support for their ideas they will target their messages accordingly. For the peoples' representatives in political office they will talk of (and exaggerate) the number of jobs and economic activity, including taxes, for which their industry is directly and indirectly responsible. However they will often choose to not mention the future potential for economic growth if other industries and business models are enabled by forms of network neutrality that are less friendly to their business interests. Being well-established with deep pockets they also have the capacity to contribute to politician and party campaign funds, and that gets them a degree of access and influence that may not be available to others.
They will also stoop lower to get the public support they need. For example, they might announce that if they can't throttle, otherwise manage or charge extra for heavy-duty downloaders -- which network neutrality, they say, will make impossible -- the pipes will get blocked up and you, dear user, will have trouble downloading dancing baby videos from YouTube. "Oh noes!" You might say to yourself, that's unthinkable, so of course network neutrality shouldn't allow that from happening:
Fourth: Network management. ISPs need incentives to run their networks, and we want those networks to be the “freest and fastest in the world.” Therefore, “reasonable network management" will be allowed in order to deal with harmful traffic, congestion, and other network problems. Again, we'll need to wait for the rules to see what might count as reasonable and what might not, and who decides.The regulator itself is a party which has its own self-interest to protect. It is said that the first priority of any bureaucracy is to continue its existence. Therefore in the coming meeting we should expect the FCC to promote a view of network neutrality that requires FCC oversight, ensuring their continued relevance for years to come. Their task isn't easy since they must navigate the obstacle course of unfriendly politicians and industry power to develop policies and regulations that also maximize consumer interest and the national interest. All you have to do is read through last week's statement by FCC Chairman Genachowski. Consider, for example, the following sentence:
Informed by the staff’s additional legal analysis and the extensive comments on this issue over the past year, the proposal is grounded in a variety of provisions of the communications laws, but would not reclassify broadband as a Title II telecommunications service.Notice how they've backtracked on reclassifying broadband as a telecommunications service, and therefore the non-discrimination aspects of common carrier law, to appease voices in Congress that want to assert their own power to determine policy. Statements like these are a good way to keep score regarding how successfully the various interests are wielding influence.
It isn't just the FCC that has to navigate the minefield: the same applies to the industry players themselves. Think back a couple of months to when Verizon and Google published a joint position on network neutrality. The predominating reaction that I noticed was one of outrage from the public, and even some of the companies that compete with one or both of these behemoths. The FCC itself was more circumspect. At the time I mentioned that this was one was to promote progress on a contentious public policy debate since the regulator and the government are potentially freed from having to (unavoidably) upsetting the status quo, creating both winners and losers; if the contenders agree up-front, that can create the conditions for an acceptable compromise.
The reality of joint-company proposals such as that by Verizon and Google are unfortunately less than they may seem. It is most enlightening to actually read the statement. I recommend doing so although it's a painful document to peruse. The reason that it is painful is not because the joint proposal is so terrible, but because it is so vague. Ultimately it is almost useless since it gives little of concrete value for the FCC to deal with. Let me pick one pseudo-random passage to highlight this point:
Additional Online Services: A provider that offers a broadband Internet access service complying with the above principles could offer any other additional or differentiated services. Such other services would have to be distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services and could include traffic prioritization. The FCC would publish an annual report on the effect of 2 these additional services, and immediately report if it finds at any time that these services threaten the meaningful availability of broadband Internet access services or have been devised or promoted in a manner designed to evade these consumer protections.Take a moment and try to parse that text. This is vague beyond reason and is wholly unsuitable as guidance on effective regulatory enforcement. It wouldn't, for example, stop Comcast from favouring its (coming soon) NBC Universal content by applying "traffic management" if it were to make the sort of charges it recently made against Level 3, and therefore Netflix, a competing content provider. Even their recommendations on FCC enforcement provisions are weak by making them conditional and fines which are (for the companies involved) inexpensive. A lesson here is that companies that compete to some degree are often not much better than a third party, including regulators, to find a middle ground that most would at least grudgingly accept; disparate and competing interests are inherently unresolvable if the objective is winner-take-all. I don't believe anyone should worry overmuch about how much impact the joint Verizon-Google will have.
When there is a joint proposal, or at least some grudging agreement among competitors, sometimes it does matter. Although it is fair game for companies to attempt to directly influence the regulator through the formal process -- you can't oppose this speech just because you don't like their message -- there is (at least) one way in which it can be judged as less than fair. To show this I have to backtrack a bit on something I said last month:
...the cable companies had to support the telcos so that the CRTC would be encouraged to choose the option that most benefited them...Joint company proposals to the regulator (the CRTC in the above case) when they come from competitors can, in one sense, be seen as promoting progress on a controversial topic such as network neutrality. However, sometimes when competitors agree they do so to give the impression that the issue is resolvable since the regulator should not have to deal with the tricky issue of balancing the interests of competitors, large and small, new and incumbent. This is normally the minefield where the regulator often makes the mistake of choosing favourites among technologies and business models in an attempt to promote competition without unduly giving anyone an advantage.
The potential trouble is when the joint company position, if adopted by the regulator, has the effect of further entrenching those companies in a way that disadvantages consumers, other competitors or the greater public good. For example, if Bell Mobility and Rogers Wireless were to propose a (hypothetical) CRTC-mandated "network improvement fee" of $100/month on every subscriber's bill, they would achieve network parity, massively increase their revenue and make fruitless the lower prices of new wireless carriers. While this is of course a pretty extreme example that would never happen, it helps to illustrate the possible threat represented by the more-nuanced one to the FCC by Google and Verizon on network neutrality.
The machinations and vague threats that are now coming more and more frequently will not abate during the coming FCC meeting and subsequent rule-making process. It's terribly irritating but also important. Unfortunately the voices of the large companies and their interests are likely to drown out the quieter, more dispersed voices of the public, at least those in the public who can afford to pay attention and see past the spin.
The effect will be to manufacture what will be called the public good rather than focusing on what is good for the public. Of course the debate itself would be superfluous if there were more competitive choices since the companies would have to serve the public interest to avoid losing customers. Failing that, regulation is the second choice, poor though as it so often is.
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