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.