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6/23/2006
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Opinion: Protecting Net Neutrality From The Neutricidal Telcos

The Internet community needs to force regulators to preserve net neutrality. But it'll be tricky to write laws that define net neutrality without destroying what they're trying to protect, says Internet activist Cory Doctorow.

It's high-minded and nice-sounding, but there are few industries that owe their existence to regulation as much as the carriers. These companies are gigantic corporate welfare bums, having received the invaluable boon of a set of rights-of-way leading into every basement in America. Phone companies have a legal right to force you to provide access to your home for their pipes. Try calculating what it would cost to get into every U.S. home without a regulator clearing your path, and you quickly realize that the carriers should be the last people complaining about the distorting effect of regulation on their business.

The Bells and cable companies owe their existence to governmental largesse, and, while they're profit-making private firms, they are, in effect, quasigovernmental organizations. A Bell that wants to get rid of regulation is about as practical as a cotton-candy cone that wants to get rid of sugar. Bells are nothing but a thin veneer of arrogance wrapped around a regulatory monopoly.

How Do We Stop Neutricide?
Phone companies' plan for a tiered Internet is dangerous and has a good chance of succeeding. They must be stopped. The question is, how?

The most prominent voices for net neutrality have been calling for a regulatory solution. Regulation created this mess, so maybe regulation can solve it. Congress can pass a law directing the FCC to adopt rules to ensure neutrality.

It's a plausible answer, but the devil is in the details. If we're going to come up with regulations to keep the phone companies in line, we'll need to be sure they do the job. That means:

* The regulation should only catch companies when the free market and competition fail to protect customers. The long-distance fiber market, for example, has proven to be quite amenable to competition, as has the local ISP business. The rule has to be for the last mile, and only the last mile, whether delivered by wires or wireless.

* The rules should keep the phone companies in check without screwing the next generation of network services. Overlay carriers like FON, who provide last-mile connectivity by piggy-backing on the carriers' networks, should be free to play around with business models. This is about protecting us from monopolies in the last mile, not locking them in as the only last mile we'll ever get. We want to leash the Bells, not new innovators.

What Is Neutral, Anyway?
Additionally, the rules are going to have to do three incredibly tricky things:

1. Define network neutrality. This is harder than it sounds. If a Bell lets Akamai put one of its mirror servers in a central office, then Akamai's customers can get a better quality of service to the Bell's customers than those using an Akamai competitor. This is arguably a violation of net neutrality, but how do you solve it? It's probably not practical to require the Bells to let all comers put local caches on their premises; there's only so much rack space, after all.

Another tricky case: the University that provides a DSL service to its near-to-campus housing and configures its network to deliver guaranteed throughput to a courseware archive. It gets even stickier if the DSL and/or the courseware archive are supplied by commercial third parties. Poorly written net neutrality regulations could prevent universities from providing those services, which should be allowed.

This is just the tip of the iceberg. Imagine a Bell that came up with a plan to let services tune their applications to improve on throughput to its customers. For example, some Bells might be able to tune service more efficiently by providing real-time feedback to companies about the optimal frame size for its network, or information on traversing its internal private networks, and so on. This is a good way to wring performance out of lines and switches, but the efficiencies decay if the Bell is legally required to provide this service to every customer, without being compensated for the additional effort.

2. Revise the definition of network neutrality in a way that keeps pace with new network realities. Next week, someone will come up with a way of tweaking the Internet that may not be neutral. It will happen again the week after, and the week after that. Whichever regulator gets to play neutrality czar will have to make rules that keep pace with those changes.

The definition must avoid the risk that the rules will fail to keep up with advancing technology, allowing the creation of a tiered Internet by means they today's regulators don't envision.

Even worse is the risk that the Bells (or someone else, like a far-future, calcified and thoroughly evil-fied Google) will get the rules changed to keep new entrants out of the market by declaring their businesses non-neutral.

3. Most difficult of all: Know when nonneutrality is committed, and stop it. It's not enough to prohibit the Bells from advertising the rate for tiered access to their pipes. The Bells have a long, dishonorable history of backroom deals with spammers, the National Security Agency, and other unsavory sorts.

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