Some Old News (Net Neutrality)

In an effort to continue to add some new blog content, I'm going to cheat and recycle a blog-worthy (I hope) email I sent a few months ago in response to inquiries from a couple of folks about my opinion on a) this article by Tim B. Lee and b) the D.C. Circuit's opinion in Comcast v. FCC. My reply follows:

Tim B. Lee's (not to be confused with Internet pioneer Tim Berners-Lee) paper has a lot of good content. Where it falls apart is on its competition analysis. Lee's fundamental premise is that interfering with network openness decreases the value of the network, service providers have an interest in maximizing the value of the product they're selling, and, therefore, service providers will not want to interfere with the openness of the network. On p. 23, Lee says this will hold true even in the case of a monopoly. This analysis, I think, ignores a critical factor: the elasticity of the market. Lee's argument holds true only in an elastic market, where consumers will be highly responsive to changes in the value of the good. I would argue that broadband Internet access is a very inelastic market. If you look at usage statistics for people under the age of 65 (and even more dramatically for those under 50), virtually everyone uses the Internet. It plays an integral role in virtually every facet of people's lives--personal communication, social and family relationships, entertainment, education, work and employment-seeking, access to government services, etc. It is not something people will do without based on incremental changes in the value of the product. So if you are hypothesizing a monopoly market, consumers have very little leverage with which to discipline service providers. Service providers would have to do tremendous damage to the product value before they saw a significant change in consumer behavior. Consequently, service providers are free to consider ways in which to make the network more lucrative for themselves (charging content providers for access to exclusive fast lanes and the like), even if it moderately decreases the value of the product they are offering consumers.

To take that one step farther, if service providers can get away with decreasing the current value of the network, they have absolute freedom with respect to controlling the emergence of future services that might add value to consumers. They already have a captive market based on the present value of the offering, so they would have nothing to lose by steering future developments in ways that benefit their bottom line, even if in doing so they diminish the overall value of these developments to their consumers. This is the most concerning aspect. It would be bad to diminish the availability or value of existing Internet-based services, but it would be tragic to undermine the Internet as a source of creativity and innovation.

The crux of this dispute, at present, is video services. Based on the history of the Internet, I think we have to assume that there will continue to be unforeseen developments and emerging new services, and some of these will probably require very high bandwidth connections. But at present, the only applications that really require 30+ Mbps connections are video services (and even then this is mostly for high def, and, in the relatively near future, 3d video). Lee touches on the fact that cable and fiber-based service providers already have a walled-garden for video, but acts as if this stands separate from the net neutrality discussion. It doesn't. I have participated in discussions on net neutrality with the Assistant Secretary for NTIA (outside of the 5 FCC commissioners, probably the most influential government official on this matter), and these walled-off video services were very much a part of the discussion. And the service providers are hardly content to rest on the status of their present walled-gardens for video. Look at the pricing for FiOS or for the emerging DOCSIS 3.0 cable services. Low speed Internet connections (5-20 Mbps) are priced similarly to the prices from other Internet service providers, but the high speed connections (50+ Mbps), which could potentially threaten their video services, are always set at such a high price point that the Internet-only price exceeds the price of getting a lower-speed video connection bundled with video service. It's a pricing structure designed to protect the video services. Meanwhile, Time Warner and Comcast are openly attempting to lock down online distribution rights for cable TV content. They have stated that they will make online access to this content contingent on the user having a subscription to their video service. AT&T and Verizon have not publicly disclosed any parallel efforts, but I would be shocked if they were not working behind the scenes to lock down content of their own. And Comcast is now in the midst of a high profile effort to acquire NBC Universal, bringing in a huge library of content and programming to add their exclusive access system. Acquiring NBC will also give Comcast partial control over Hulu, which will be one of its primary online TV competitors.

All told, this is a broad and comprehensive effort to lock down a high-value, high-bandwidth data service. And the general unavailability of high speed connections combined with market uncertainty over licensing and content access issues has successfully prevented the development of any true innovative competitors in the IPTV space. Moreover, because one element of the service provider strategy is to price high speed connections out of the market, this has had the collateral effect of slowing or preventing the development of other potential high speed services and applications (this is why Google is now proposing to create a city-wide testbed for a 1 Gbps fiber-to-the-home network). Letting Internet service providers into the online content and services market completely upends our expectations, per Lee, of how they should behave to improve the value of their Internet service product. Net neutrality advocates need not restrict themselves to worrying about hypothetical future harms, the real thing is happening right in front of our faces.

In discussing the potential threat of walled-gardens, Lee raises the example of AOL. AOL famously began as a walled-garden with exclusive content, then eventually, grudgingly, gave their users access to the Internet, and finally the exclusive content was dropped entirely. According to Lee, this illustrates that walled-gardens are not profitable. The key point that Lee omits is that AOL was not a monopoly (or even a duopoly). AOL's actions were driven by intense competition, mostly with mom-and-pop Internet service providers, at a time when all it took to be an ISP was to park a computer at the end of a copper phone line. The current service providers are generally monopolists or duopolists. The cost of entry to the market is prohibitively expensive (and economically inefficient). And the incumbents are so large that their collective actions can shape the development of content and services on the Internet in a way that AOL never could. The fact that walled-gardens failed in the 1990's tells us nothing about whether they could be economically viable for Comcast, Verizon, AT&T, and TWC today.

This brings us to the D.C. Circuit's decision last week. In 1996, Congress passed a Telecommunications Act that set up a regime for competitor access to the phone companies' last mile networks, allowing them to compete with the phone companies to provide phone and Internet service over their own infrastructure. At the time there were no commercial cable Internet service providers. As the cable companies became a larger and larger part of the broadband Internet service market, the disparity between phone companies (who were forced to share their plant with competitors) and cable companies (who weren't) became pronounced. Lawsuits by competitive Internet service providers attempting to gain access to the cable companies' plant forced the FCC to make a decision as to how to reestablish parity between the phone and cable companies. By this time (2002), Bush II was in office, and the default Republican position of helping the big guys prevailed. The FCC decided to designate Internet service as an "information service". The Communications Act gives the FCC a powerful tool box of regulatory controls over "telecommunications service" (generally referred to as Title II), but very little authority over "information services". The FCC had to shamefully torture the statutory definitions for telecommunications service and information service in order to make this determination, but that is neither here nor there. Several years later, after the case of a small phone company (Madison River Communications) blocking VoIP services that competed with its voice services, the Commission realized that they might want to regulate the behavior of Internet service providers in some cases. Having excluded Internet service from Title II, they didn't really have the statutory authority to do so, but decided to release a list 4 of non-binding network openness principles. A couple years after that, various members of the public were able to definitively prove that Comcast was interfering with BitTorrent traffic on its network, and they filed complaints with the FCC. After a long proceeding, in 2008, the Commission found the Comcast had violated the 4 principles, and required them to stop. Comcast challenged in the D.C. Circuit, asserting, among other things, that the FCC lacked statutory authority to enforce the 4 principles. They were right. Immediately following the FCC's Comcast decision, I did the first draft of a memo on the decision for a client. I predicted that Comcast would win the case in exactly the manner they did. So I can't say that I disagree with the D.C. Circuit's opinion.

At this point I think there is little question that the FCC will continue to enforce net neutrality principles. It was really the only big ticket item in Barack Obama's 2008 platform that related the FCC. Obama has reiterated his commitment to net neutrality on multiple occasions since taking office. It has to be at the top of the Democratic FCC commissioners' priority lists. So, to me, the question is not if, but how. Already there is a lot of talk on Capitol Hill about creating new legislation to give the FCC authority to enforce net neutrality. However, given the state of the senate, and the other major legislative efforts under way, it seems unlikely that anything like this could become law for a year or two, if at all. One quick way for the FCC to fix the problem by themselves would be to reclassify Internet service as a Title II telecommunications service. Two of the Democratic commissioners (Copps and Clyburn) appear to be inclined to doing this. The chairman, however, has indicated reluctance to do so. Reclassification would not only allow the Commission to enforce net neutrality, but would expose service providers (now including cable providers) to a whole suite of requirements under Title II. This would be a major change in regulatory approach, and the service providers will spend hundreds of millions of dollars over the next year or two to lobby against it. And even once the Commission acts, the service providers will then tie it up in lawsuits for years (as they did to the 1996 Act, from the time it was passed until the Bush-led Commission threw in the towel). It wouldn't be a pretty picture. But I nonetheless think it would be the right thing to do.

Moving Internet services back into Title II would allow the Commission to enforce net neutrality, but more importantly it would give them the tools to force the service providers to open their network to competitors. If done well, that could negate the need for net neutrality. Net neutrality is a regulatory framework designed for non-competitive markets. In a competitive market, consumers can respond to changes in the value of goods being offered, and Lee's thesis above would actually apply. Service providers that cripple their networks in the interest of building walled-gardens will see their subscribers go elsewhere, and the market will provide sufficient discipline to ensure good behavior. The only net neutrality regulation that would be required would be a network management disclosure requirement to ensure that consumers were making informed decisions. I think net neutrality is necessary given the current state of the market, but it is not an optimal solution. Competition would be far preferable. And, of course, for the service providers, competition is a far scarier prospect that net neutrality. Consequently, what we are likely to see is Chairman Genachowski publicly wavering on whether to join with his fellow Democratic commissions in favor of classifying Internet service as a Title II service until the service providers cry uncle and agree to some sort of non-Title II regulatory framework in which the FCC will be able to enforce net neutrality. Again, not my preferred solution, but it's what I view as the most politically feasible approach for Genachowski, and it has a distinctly Obama-esque feel to it.