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Editor's Note: In the first of two columns on controversial new FCC rules enforcing net neutrality principles, Iintellectual Property attorney Christopher Davis makes an argument in support of net neutraility. In his next column, Davis will lay out some of the reasons net neutraility might not be such a good idea after all. Two sides of a timely debate.
The Federal Communications Commission, on September 21, proposed rules that would prevent Internet service providers (ISPs) from treating different sources and types of data differently; more to the point, the rules would prevent your ISP from charging a premium for watching content generated by third parties - as, for example, YouTube. The new rules formalize the FCC's existing guidelines that govern how ISPs operate.
The Internet has traditionally treated all types and sources of data the same way. Whether you are watching YouTube, playing online games via Xbox Live, or reading the New York Times, the carriers that make up the Internet treat your packets of data the same. Everything works on a strictly first-come first-served basis. The Internet has always been a patchwork of various networks, even from its early years, starting as ARPANET in 1969, through when commercial entities could join in 1988 to today. One requirement for joining the collective Internet has always been to pass data equally.
The alternative would be that a given ISP could analyze each data packet, see who it was from, what kind of data it contained and then either slow it down or speed it up accordingly. In 2008, the FCC found that Comcast was doing exactly that: slowing down or blocking peer-to-peer file sharing by its customers (much of which probably violated copyright laws, but that is a story for another day). The Comcast case is an example of discrimination by type of data.
Another form of discrimination is by source or destination. An example of that would be if an ISP like Comcast decided that YouTube traffic was less critical than streaming its own video offerings so it gave priority to its own data and slowed down YouTube's. This would allow that ISP to charge data providers like YouTube for premium service on their networks. YouTube could then, of course, charge Comcast for any data sent to its consumers for similar premium service.
The proposed FCC rules would disallow both forms of discrimination. Any given piece of data would be treated alike. The United States government has a history of enforcing this kind of neutrality on telecommunications systems it subsidizes. For example, as early as 1860, the federal government passed a telegraph law requiring that, on the new cross-country lines, all telegraph messages shall be impartially transmitted in the order of their reception, excepting that the dispatches of the government shall have priority.
Some Internet service providers and pundits dislike the proposed FCC rules. They argue that high bandwidth sites like YouTube or peer-to-peer filesharing networks are freeriding on their networks and that the ISPs should not be forced to carry this kind of traffic without additional compensation. Some have gone so far as to claim that network neutrality rules are socialism and the government trying to take control of the Internet. Two recent Wall Street Journal opinion pieces, one by the editorial board and the other by Holman Jenkins, make these exact arguments. They also claim that without the ability to discriminate between data, ISPs are discouraged from making capital investment in bandwidth.
There are rational and principled arguments to oppose network neutrality rules; freeriding or claims of socialism, however, are not among them. No one is freeriding on the Internet today. Consumers pay their ISPs for data service. YouTube would not be sending all that data into the Internet if people were not at home, clicking on funny cat videos and paying their monthly service fee for the privilege of doing so. ISPs like Comcast want to double-dip, charging both the consumer and YouTube. Whether one agrees with that scheme or not, FCC rules that prohibit double-dipping are not the same as allowing freeloaders. Those ISPs' consumers are paying for their data.
Net neutrality does not discourage bandwidth expansion or innovation by internet service providers. ISPs are expanding bandwidth as demand grows and as customers are willing to pay for better service. They expand in response to competition from other ISPs who would offer their customers the service those customers desire. Allowing data discrimination would allow ISPs to limit the content that their consumers could access. In an ironic twist, such discrimination would lessen the pressure for more bandwidth by allowing ISPs to discourage certain kinds of data usage. By keeping the consumer's options open, net neutrality encourages ISPs to increase their bandwidth to meet consumer demand.
Consumers will be best served by an Internet that grows to accommodate the needs and desires they are willing to pay for. Even if one disagrees with the proposed rules, it is disingenuous to claim that they somehow force networks to accommodate freeloaders or stifle innovation. The new rules merely enforce the regimen that has been in place since the birth of the Internet.See also: Net neutrality: Good for a few, but bad for most
Christopher Davis is an intellectual property attorney at Michael Best & Friedrich in Madison. Prior to joining Michael Best, Mr. Davis was a software engineer/developer at Electronic Arts.
The opinions expressed herein or statements made in the above column are solely those of the author, and do not necessarily reflect the views of Wisconsin Technology Network, LLC. WTN accepts no legal liability or responsibility for any claims made or opinions expressed herein.