Once Again for the First Time: What is Net Neutality?

Not surprisingly, FCC Commissioners voted 3 to 2 yesterday to open a Notice of Inquiry on changing the classification of broadband Internet access from an “information service” under Title I of the Communications Act to “telecommunications” under Title II.

As CNET’s Marguerite Reardon counts it, at least 282 members of Congress have already asked the FCC not to proceed with this strategy, including 74 Democrats.

I have written extensively about why a Title II regime is a very bad idea, even before the FCC began hinting it would make this attempt. No need to repeat any of these arguments here. Reclassification is wrong on the facts, and wrong on the law.

Instead, I thought it would be useful to return to the original problem, which is last fall’s Notice of Proposed Rulemaking on net neutrality. For despite a smokescreen argument that reclassification is necessary to implement the National Broadband Plan, everyone knows that the NOI was motivated by the Commission’s crushing defeat in Comcast v. FCC, which held that “ancillary authority” associated with Title I did not give the agency jurisdiction to enforce its existing net neutrality policy.

Let me be clear, once again, that I am all for an open and transparent Internet. I believe the packet-switching architecture is one of the key reasons TCP/IP has become the dominant data communications protocol (and will soon dominate voice and video).

Packet-switching isn't the only reason the Internet has triumphed. Perhaps the other, more important secrets to TCP/IP’s success are that it is a non-proprietary standard --so long SNA, DECNet and OSI and the corporate strategies their respective owners tried to pursue through them--and simple enough to be baked in to even the least-powerful computing devices. The Internet doesn’t care if you are an RFID tag or a supercomputer. If you speak the language, you can participate in the network.

These features have made the Internet, as I first argued in 1998 in “Unleashing the Killer App,” an engine for remarkable innovation over the last ten years

The question for me, as I wrote in Chapter 4 of “The Laws of Disruption,” comes down most importantly to one of institutional economics. Who is best-suited, legal authority aside, to enforce the features of the Internet’s architecture and protocols that make it work so well? The market? Industry self-regulation? A global NGO? The FCC?

Or put another way, why is a federal government agency (limited, by definition, to enforcing it authority only within the U.S.) such a poor choice for the job, despite the best intentions of its leadership and the obviously strong work ethic of its staff?

To answer that, let’s back all the way up. Net neutrality is a political concept overlayed on a technical and business architecture. That's what makes this debate both dangerous and frustrating.

For more, see “FCC Votes for Reclassification.”