I'll get to the brilliant (and my sense is he wouldn't mind if you thought so, too) Dave Farber a bit down on this post. But first, some perspective.
At the behest of Gerald Faulhaber, a professor of business and public policy at the University of Pennsylvania Wharton School (where brainy MBA's are minted) a bunch of business, law and tech profs offered their thoughts on net neutrality legislation.
Their views are articulated in "Getting A Fix on Net Neutrality," a just-published paper in the Knowledge @ Wharton's Law and Public Policy Series.
The gist of these arguments appear to be that net neutrality might indeed be important, but the Internet is changing too fast for any new laws that could be passed at this point to endure.
The article noted that the group (of experts) concluded that "mandating network neutrality could have adverse effects on Internet development and result in unforseen circumstances. Quoting Faulhaber: "any legislation 'is a problem when the Internet is in a state of flux.' "
OK, now let me get this straight. You are worried that some network operators will get greedy but are too chicken to pass a law against such practices because the world is changing?
"There are really two issues in the network neutrality debate: Should government step in when broadband network owners discriminate against unaffiliated content and services, and should there be a prospective rule mandating non-discrimination?," adds Wharton professor of legal studies and business ethics Kevin Werbach. "I'm very troubled by the possibility that network operators will act in anticompetitive ways against application and content providers, but I find it hard to craft a workable legal rule prohibiting such actions."
Well, at least give Prof. Kevin some credit. At least he acknowledges that - perish the thought- some network operators can be -- anti-competitive! University of Pennsylvania law professor Polk Wagner won't even go that far.
Once again, according to the report:
University of Pennsylvania law professor Polk Wagner suggests that ultimately every company involved in the network neutrality debate has to please the consumer. And that means an Internet backbone provider like AT&T couldn't sell its services if it blocked sites like Google. There would be no business reason to do so. "The fundamental issue is what the consumer wants," says Wagner. Nevertheless, Werbach adds, network neutrality has to be closely monitored. "Just because a phone company owns a network doesn't mean that it should be able to block applications and content for anticompetitive reasons."
My read on this is that, well, these phone companies might be tempted (tsk, tsk), to play favorites, but after thinking about it a bit, and realizing the customer comes first, they'll shy away and play fair. But we'll watch 'em just in case they don't.
Note that Prof. Wagner said "block Google." He didn't say keep Google at a certain speed while jazzin' up the network for favored partners.
I don't think the broadband providers would be that brazen to block Google either. But there are far subtler ways to play favorites. Does Prof. Wagner think broadband providers would fail to do so because their corporate conscience would defeat their habitual urge to embrace allies and fee everyone else?
Then we have Carnegie-Mellon computer science professor David Farber. A brilliant man with a self-promotion streak, Farber seems to think that well, there's enough on the books to keep broadband providers from behaving badly.
Once again, from the Wharton report:
Farber points to the Federal Communications Commission's (FCC) network neutrality guidelines issued in August 2005, which state:
- Consumers are entitled to access the lawful Internet content of their choice;
- Consumers are entitled to run applications and services of their choice;
- Consumers are entitled to connect their choice of legal devices that do not harm the network;
- Consumers are entitled to competition among network providers, application and service providers, and content providers.
"These principles are the line in the sand. If you step over it, the FCC will look," says Farber.
I can't believe what I just read. What "principles?" As stated, those intentions are so vague that any lawyer can say, "no, not us. We aren't violating that."
Then Farber trots out the FCC's $15,000 fine against North Carolina telecommunications company Madison River Communications for blocking Vonage service.
Now let me get this straight, I am thinking. Just because the FCC imposes a nominal fine against a small, politically unconnected telecommunications provider for an egregious violation of some of those bullet points, am I to assume they would do the same to say, an under-the-hood, technologically obfuscated attempt by say, Mr. Whitacre's shop (that'd be AT&T, people) to play favorites?