Net Neutrality: A Problem In Search Of A Solution
With net neutrality firmly back in the spotlight, we're again hearing it decried as a solution in search of a problem.
Posted by Geoff Daily
October 5, 2009
To some degree I actually agree with this sentiment, primarily because there really haven't been all that many cases brought to light where the spirit of net neutrality is being grossly violated. And where bad practices have been identified they've been generally resolved through a combination of the court of public opinion and the threat of government regulation.
But at the same time, I have another way of looking at it. I think net neutrality is actually a problem in search of a solution.
The problem I see isn't necessarily that network operators are messing with traffic, but rather that there aren't any clear rules of the road for what traffic management is OK and what isn't.
Because of this I know of smaller operators that are holding back innovation in their networks to make sure they don't run afoul of these nebulous rules. And these problems will likely only get worse as new ways to manage traffic emerge that will create more uncertainty about what's OK and what's not.
This is especially true as the concept of managed services begins to take hold, which opens a whole other can of worms about who should get access to what and what rules need to be in place to protect free and open competition on these next-gen networks.
The undeniable truth is that network operators need to know what they can and can't do in terms of managing access to and traffic on their networks, and app developers and content creators need to be able to have an understanding of what to expect as they create experiences that leverage these networks. Without some level of certainty about all of this we're going to force everyone to be hesitant when it comes to investing in expanding their capabilities in all the different directions that digital technologies make possible.
Some have tried suggesting that we don't need any more rules, and that the market alone will take care of sorting out what's right and wrong. But I think doing this relies too much on trusting network operators to place the public good over their private profit motives. Remember, these private operators have a fiduciary responsibility to their shareholders to maximize profits. That doesn't make them evil, that's just the way the system works. And because of this, it may be too tempting to muck with traffic to drive up profits if there aren't rules in place protecting open competition between services on the Internet.
On a related note, some in Congress have tried to prevent the FCC from taking ownership over this space and laying out the rules of the road. I think this is a really irresponsible thing to try to do. Someone needs to be in charge of this, and there's no agency better positioned to do so than the FCC. Also, we can't expect Congress to pass laws that have any chance of keeping up with the pace of technological evolution around network management and next-gen applications. Put simply: we need rules of the road, and we need someone with the flexibility to set and maintain those rules as conditions change over time.
But this is easier said than done. While some claim net neutrality's a solution in search of a problem, in reality I think we have yet to find anything resembling a specific, actionable solution to the regulatory uncertainty surrounding net neutrality. And that's another big problem as the more uncertainty the greater the likelihood any attempt to legislate or regulate net neutrality will just get stuck in the courts, which is proven by the fact that Comcast has already taken the FCC to court even though they weren't really punished for what was a pretty obvious violation of the spirit of net neutrality.
One of the biggest challenges in finding a solution to net neutrality is that the term means so many different things to different people. It's almost impossible to find a solution to a problem that isn't clearly defined.
Any solution to net neutrality must also have to balance being specific enough to remove the uncertainty surrounding what's OK and what's not yet broad enough to accommodate future advances in technology. Finding a solution that's rigid in terms of defining the consequences for bad actors yet flexible in terms of adapting to the circumstances of each unique situation.
We can't afford to put in place narrow rules that limit innovation and investment, but at the same time if we're too broad than we're likely going to leave too many loopholes and gray areas, which are ripe for litigation.
That's why I think any solution to the net neutrality problem has to be incremental and has to be prepared to evolve over time.
Because of this, I'd start simply.
A first step would be to firm up truth-in-advertising rules around broadband so that consumers can know what they're getting.
A second step would be to enshrine "thou shalt not degrade traffic" rules with strong penalties for abusers. This is an issue on which general consensus seems to have already been reached.
Then the third step I'd embark on initially is to set up a mechanism at the FCC to track the evolution of network management techniques and application development trends to be able to study and recommend what's OK and what's not moving forward. A key mission for this entity would be to work towards having a better understanding of how managed services work and what impact they have on network operators' investment in upgrading the open bandwidth part of their networks' capacities.
The final step I'd recommend is to establish a voluntary standard for best practices associated with open networks. Perhaps this could be created as a brand that operators that are committed to delivering a truly open network could use to help differentiate themselves from their competitors. There could even be additional incentives like tax breaks for anyone who lives up to this standard. I sometimes worry that we focus too much attention on punishing bad actors when we could also be finding ways to reward good behavior.
The most important thing to remember is that net neutrality is a problem and it needs a solution, but at the same time we can't get caught up in thinking that the sky is falling and that we need to rush to enact imprecise legislation or regulations that may end up doing more harm than good.
I do believe there is a solution out there to overcoming the problem of uncertainty when it comes to managing networks. So let's all work together to figure out how to create the best solution possible to maximize competition, investment, and innovation in our broadband marketplace.