Why is net neutrality, the controversial notion that all Internet traffic should be treated the same, so difficult to resolve?
An underappreciated reason is each side defines the core terms of net neutrality very differently.
Thus, to understand this leading Internet public policy conflict, and to find common ground and consensus to resolve it eventually, it is axiomatic to start with definitions.
Everyone will be hearing a lot more about net neutrality and the Federal Communications Commission’s regulatory authorities in 2017.
That’s because FCC Chairman Ajit Pai appears poised to begin the process of overturning the previous FCC’s 2015 Open Internet order that regulated Internet service providers as Title II telephone utilities to mandate net neutrality.
Here are the core six terms with double meanings that torment net neutrality consensus: Internet, net neutrality, free, open, competition, and economics.
First, the sides disagree over the definition of the Internet.
ISPs see themselves as an integral part of the Internet because the law defines the Internet as: “the international computer network of both Federal and non-Federal interoperable packet switched networks.” ISP packet switched networks carry much of the Internet’s traffic.
However, proponents of net neutrality — such as the Internet Association, representing Internet giants Google and Facebook, among others — want to define ISPs as Title II telephone utilities, and the physical hardware part of the Internet as the public switched telephone network, to effectively redefine the Internet on their terms as “the edge” made up of only “edge,” software or virtual providers, like Internet Association members, and other online-based enterprises.
That way, the 1996 Telecom Act’s deregulatory section 230 provision, that states it is the policy of the United States that the Internet is unfettered by federal or state regulation, conveniently does not apply to ISPs, but only applies to edge providers.
The second issue is the definition of "net neutrality." Professor Tim Wu originally coined and defined the term “network neutrality” in 2003 as a non-discrimination principle for Internet network providers. In a 2009 white paper, Wu expanded the definition to include regulating the price of some Internet traffic at a price of zero to economically subsidize edge providers.
This snowballing definition now has many net neutrality proponents seeing net neutrality as the same as 1934 monopoly telephone utility law which regulated telecommunications as a common carrier.
In contrast, the FCC effectively defined net neutrality in a unanimous 2005 Internet policy statement from a consumer perspective, that a consumer should expect to be able to competitively access the content, apps and devices of their choice. Apparently that is how Pai very generally defines net neutrality and a free and open Internet going forward — without Title II.
Third is the definition of “free” as in a free and open Internet. Increasingly proponents of Title II net neutrality define “free” as no-cost or a price of zero. However, opponents define “free” as shorthand for individual freedom, since most people pay for Internet access most of the time.
Fourth is the definition of “open” as in the FCC’s Open Internet Order. Proponents define open as the strongest possible utility regulation, and non-proprietary, like open-source software that confers no property rights. Opponents see an open market as a deregulated market.
Fifth is the definition of “competition.” Proponents and the previous FCC, defined broadband competition as government-managed competition where the government determines some prices, terms and conditions of ISPs to advantage edge providers.
In contrast, Pai defines broadband competition as market-driven competition between facilities-based providers of broadband Internet access, and where consumers pick winners and losers.
Sixth, and finally, is the definition of “economics.”
Many of the most ardent net neutrality supporters, like Public Knowledge, consider the Internet like a public common, i.e. online resources that do not require payment of permission to use. They subscribe to the utopian ideal of the “economics of abundance,” which believes that since the marginal cost of Internet transmissions are near zero, the marginal price should be zero as well.
In contrast to most other people, including Chairman Pai and Commissioner Mike O’Rielly, believe in the market organizing principle of the economics of scarcity, where pricing must ultimately reflect total costs, not cherry-picked marginal costs, and supply and demand.
If you want to better understand why the Pai FCC will be reversing the previous FCC’s 2015 Open Internet order, in 2017, look no further than these six tormented key definitions.
These definitions are the guts of what must be negotiated in Congress, if there is to be a lasting bipartisan resolution of net neutrality in law.
Scott Cleland (@SCleland) served as deputy U.S. coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is president of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors. He is also the chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is the author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google and before the relevant House oversight subcommittee on Google’s privacy problems.
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