Net Neutrality: Unpacking the Divide in Regulation of the Internet

-- By KifayaAbdulkadir - 17 Mar 2022

Introduction

It has been almost two decades since Tim Wu introduced the concept of network neutrality into common usage in debates on internet regulation. While concern about net neutrality already permeated through writings of open-internet advocates such as Lemley and Lessig, Wu went further and articulated that network neutrality and subsequently internet innovation as an end can be achieved by a non-discrimination rule that would ensure a level playing field among internet applications. This general framework has been widely endorsed by net neutrality advocates but has nevertheless faced attacks from proponents who argue that less regulation, vertical integration and prioritization of internet traffic might be beneficial. Net neutrality is essentially the notion that internet service providers should treat all data on the internet equally and not discriminate based on the device, content, user, platform, application, or device. The foundation of this concept is a free and fair internet with the obligation on service providers that access to data and speed of all traffic on the internet be the same across the board. Preserving net neutrality has however been a battlefront in discussions on the future of the internet. While other regions such as Europe, have managed to establish regulations compelling internet service providers to treat all internet data and users equally, implementing such measures in the US has been an uphill battle. In 2018, the Federal Communications Commission repealed the net neutrality rules, only 2 years after it was approved and since then any efforts to implement these policies at even a state level has been met with pushback. Why is this principle such a heated controversial issue?

Network Neutrality

Tiered access that creates internet fast lanes and slow lanes is one of the pertinent issues raised by adherents of the network neutrality who contend that it leads to discrimination in content delivery. Proponents argue that ensuring all data is treated equally regardless of the source meaning that anyone who comes up with competitive products would not have barriers that would prevent entry to the market. However if network owners were allowed to discriminate between applications, it would be simple for the established content providers to just pay for better Quality of Service (QoS? ) and therefore lockout competition from those who would not be able to afford the same QoS? . Simply put, allowing Internet Service Providers to charge companies like Google or Netflix, extra for use of “internet fast lanes” would mean that entities that cannot compete with Google’s financial war chest would not be able to enter the market. This would therefore act as a barrier to competition. The biggest suspicion among pro-neutrality advocates is that allowing any single actor the control of innovation or innovative practices will lead to a stifled innovative environment. The architecture of the internet is designed to prevent “legacy monopolies” where a company specialises in a particular field of internet services. If the structure of internet regulation (or lack thereof) entrusts any single company with the control of a part of the internet’s architecture, the plausible conclusion is that the company would exploit their control to prevent harmful competition. It is almost impossible to believe that in the face of direct competition to this core competency, any company would not resist any change to the status quo. Network neutrality advocates therefore refuse to trust in the altruism of these big corporations and this explains the persistent clamour for proper regulation.

Network Diversity

On the other hand, the argument against network neutrality and for network diversity is two pronged; demonstrating the weakness of the arguments neutrality arguments and proposing alternative models. As mentioned above, the crux of the arguments fronted by network neutrality advocates is that the design of the internet as it is protects competition and innovation. Opponents however posit that allowing different internet service providers leeway to pursue routing of traffic and vertical integration would in fact help competition.

Concern has been expressed that imposing regulations as pertains to net neutrality would deter investment in facilities. This would not only hinder advancement in the technology but also the deployment of the networking facilities to larger areas in order to reach more people. It costs network owners funds to invest in and continually upgrade their facilities, and they must have some sort of economic incentive to do so. The economic incentive in this case is being able to recover the costs from customers. As the costs increase for the network owners, the costs would similarly increase for the network users. An unmanaged network would then become prohibitively expensive for the end users. As costs of maintenance and upgrading increase, prices for end-user would similarly increase and eventually, it would be unlikely that enough customers would be willing to pay the price needed to support an unmanaged network, and this business model would become commercially non-viable. An alternative offered by this camp is network diversity. This principle would allow different service providers to deviate from the “equal traffic” requirement and take diverse approaches to management of traffic to suit consumer demands. This would take the form of making the network able to differentiate and prioritize different categories of data traffic and in doing so allowing network providers to cater to the consumer brackets they cater for. Furthermore, greater innovation at the network layers would create the possibility of more networks each specialising in unique services. This would have the effect of preventing network providers from competing on the basis of size and network capacity and increase competition.

Conclusion

It is evident that elevating network neutrality into a regulatory mandate is not without legitimate and concerted criticism that it will do more harm than good in terms of competitive effects on the industry as a whole. However, the crux of the network diversity camp argument is that the telecommunication companies can be trusted with driving innovation and in my opinion, this is unwise. The unfortunate reality is that throughout the history of the internet, these companies have demonstrated time and time again that they cannot be trusted with little or no regulation. It is not contestable that companies are simply profit making enterprises with little regard for the public interest. It therefore should not be beyond the realm of reason that giving network providers free reign on regulation of content passing through their systems would be imprudent. Ultimately I believe the lack of regulation will stifle innovation more than implementing net neutrality will, contrary to popular belief– allowing larger ISP’s to abuse their market power by charging higher fees will run smaller ISP’s out of the market and similarly allowing bigger content providers to pay for QoS? will drive smaller content providers out of the market. And in all this, the consumer will suffer the greatest consequence.

"Neutrality" was not invented by Wu. Tim, never a very thoughtful fellow, picked up the concept from the CEO of Verizon, Ivan Seidenberg, who was creating a straw man to fight with, and Tim ran with it.

The two concepts Seidenberg was trying to resist by cartooning them as "network neutrality" were rules against discriminatory routing and "common carriage." Rules against discriminatory routing are the staple of the struggle between state governments and railroads that led to the Sherman Act. Those competitiojn rules lay on top of the ancient concept of common carriage, that is, the common law's approach to the rights and responsibilities of innkeepers, carriers of package by wagon or mule train, etc.

This is not primarily about "fast lanes" and "slow lanes." It's about directionality: whether telecommunications intermediaries can determine who is allowed to provide services instead of consuming them. Networking providers deciding who can stand up a web server or a mail server , charging orders of magnitude more for "business" service that can open all ports, and then gouging the working class which has only a smartphone and buys bandwidth by the sip, paying extortionate prices for capped volume, speaking only through the platform intermediaries at high cost in both money and behavioral surveillance—that's the system determining our order of culture, ruling on what brains can learn what, where, and for how much. Making the telecomms common carriers solves the whole problem. Calling it "network neutrality" just confuses the issue.

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