Wednesday, April 07, 2010

Net Neutrality Neutrality

By Mike Dorf

The D.C. Circuit ruling in the Comcast case will almost certainly be misunderstood by some in the public as a judicial statement that net neutrality is somehow contrary to the public interest.  Of course the case says nothing of the sort.  It holds simply that Congress had not delegated the authority to the FCC to pursue its net neutrality policy in the manner in which it pursued that policy.  Congress could provide the FCC with the necessary authority in a heartbeat, if the political will is there.  It's also possible that the FCC could seek cert, although I don't see a reversal by the Supremes as very likely.

Here I want to express a tiny bit of skepticism about net neutrality--not even skepticism, actually, just agnosticism; thus the title of this post.  Consider what Comcast was accused of doing: interfering with P2P networking apps.  Now, is that a violation of net neutrality?  That depends on how one defines neutrality.  Under a stringent view, an ISP violates net neutrality if it treats different content differently.  So, yes, in this view, if Comcast makes it harder for users to share files with one another using bittorrent than for users to log onto Google or Yahoo!, then that's a departure from neutrality.

But consider a different conception of neutrality, one drawn from free speech jurisprudence: What matters is the reason for the different treatment.  If a municipality bans sound trucks but not leafletters from residential neighborhoods, that's a kind of different treatment of different speakers, but it's not censorship.  Why not?  Because the reason for banning the sound trucks has nothing to do with the identity of the speakers or the content of their speech.  We can say that the prohibition of sound trucks but not leafletting is neutral in the more relevant sense of neutral with respect to speech and speakers.

So too here, one might think that if Comcast is slowing down bittorrent because it gobbles up much more bandwidth than Google or Yahoo! does, then interfering with bittorrent but not Google or Yahoo! looks neutral in the relevant sense.

To be sure, the FCC appears to have taken this point into account, at least to some extent.  As quoted in the DC Circuit opinion, Comcast's interference with P2P apps was unlawful because Comcast "had several available options it could use to manage network traffic without discriminating” against P2P apps.  Assuming that's right, perhaps the FCC was fully right on the merits--or would have been right on the merits if it had the regulatory authority to address the merits.

But it's not obvious to me why managing network traffic is the right benchmark.  Couldn't an ISP make a judgment that it simply doesn't want to support users that gobble up much more bandwidth than average users, even if it can accommodate the bandwidth gluttons without impeding the overall speed of the network?  At the margin, the gluttons may make a difference and on a Megabytes per user basis, accommodating the gluttons means making average users subsidize the gluttons.

Again, I'm not saying the FCC necessarily had it wrong on the merits.  I'm simply suggesting that the notion of "neutrality" may be no less slippery when applied in the context of the internet than it is in other contexts, such as free speech and religion.  Wherever the net neutrality debate now moves, policymakers should not assume that a principle of neutrality answers more questions than it raises.


Brian Walker said...

Your comment about the "gluttons" raises an interesting concern. On my current (non-Comcast) plan, I pay roughly $60/month for 95GB of data per month.

I am paying for that data, am I not? All the major broadband providers have, to my knowledge, data caps on their plans. Why are they allowed to sell me a 95GB plan and then turn around and slow me down because I try to use what I pay for?

Michael C. Dorf said...


If your contract with your ISP entitles you to 95 GB of data/month in any packet size you like whenever you like, and it then does not honor that promise, then your ISP is in breach of contract. The question I am addressing, however, is different: Can an ISP even insert in the contract that the 95 GB of data does not include P2P or a provision capping P2P or other sources at some number under the 95 GB? Proponents of net neutrality argue that the ISP shouldn't even be allowed to discriminate this way if they're open about it.

(It appears from the DC Circuit opinion that Comcast itself did not tell its subscribers that it was going to interfere with P2P apps, so it might have been in breach of contract under the analysis above. However, the FCC policy would have disallowed Comcast's approach even if it were fully announced in advance.)

I don't know enough about the technical side of the issue to be very confident in this, but it does strike me as at least plausible that certain kinds of use, even if under the total cap, would tie up the network more than others.

Paul Scott said...

I suspect Net Neutrality, though something I generally support, is or will shortly be, mostly irrelevant. In my locality, I have more than a dozen options for broadband service (listing them out quickly in my head - i can think of 3 options that match my current service in bandwidth and 14 that are legitimately high bandwidth). I suspect that has something to do with being in the second largest metropolitan area, but it is hardly the only reason. Even most small towns will have at least three options - one or more DSL providers, one or more cable providers and several cell options. Additionally, pretty much everyone has the satellite option, but that does largely - well lets say it barely qualifies as broadband.

If my current service provider alters its policies such that it no longer serves my needs, there are at least a dozen others - of various quality - from which I can choose. I suspect that will never happen, as bandwidth in both cable (what I have) and fiber-optic are so far above what we use right now that I don't see the point. But if it does, I can very easily go elsewhere. I suspect most persons are in a similar situation.

In particular, those unhappy with comcast should simply leave it for one of several other options.

Michael C. Dorf said...

Paul raises a fair point but I'm a bit concerned about stickiness. Changing ISPs is not a gigantic hassle but it's not totally costless. I suspect that a fair number of people stick with an ISP long after they have better, cheaper options. Yes, the market eventually sorts these things out, but it takes a while: Think about how long it took for AOL's ISP business to dry up.

It's also possible that today's competition in the ISP market could lead to tomorrow's oligopoly. If some technology proves very much better than the alternatives, and if that technology is a natural monopoly or even oligopolistic, we could end up with a small number of choices. Something like this has happened in the mobile phone market over the last 20 years.

C.E. Petit said...

I'd like to suggest that things are not nearly as clean as the opinion makes them sound. Although the opinion seemingly went out of its way to avoid the issue, there is a substantial "content censorship" issue lurking there... and it's hinted at by the timing of Comcast's announcement of its intent to throttle bandwidth compared to its interest an acquiring cable TV channels.

I do agree that the best solution is for Congress to amend the bloody statute, as I have to reluctantly conclude that the opinion yesterday is the "best of bad alternatives" interpretation of the FCC's statutory authority. That said, we also need to be careful, given recent reconsolidation of distribution channels with production sources -- ignoring the quarter-century antitrust effort against Hollywood studios owning cinemas, that we don't ignore the messiness of mixed-motive bandwidth throttling.

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