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July 13th, 2006

I’ve been following the network neutrality debate with interest, largely through Tim’s excellent posts at the Technology Liberation Front.

Recently Ed Felten came out with a very good paper (pdf) on the subject, in which he comes to the conclusion that the best thing to do is wait on any legislation unless or until it becomes necessary.

There is a good policy argument in favor of doing nothing and letting the situation develop further. The present situation, with the network neutrality issue on the table in Washington but no rules yet adopted, is in many ways ideal. ISPs, knowing that discriminating now would make regulation seem more necessary, are on their best behavior; and with no rules yet adopted we don’t have to face the difficult issues of linedrawing and enforcement. Enacting strong regulation now would risk side-effects, and passing toothless regulation now would remove the threat of regulation. If it is possible to maintain the threat of regulation while leaving the issue unresolved, time will teach us more about what regulation, if any, is needed.

Bill Herman from Public Knowledge disagrees:

I dare say that current political theory demonstrates that his policy option is quite unrealistic; the chance to act will expire too quickly, and the threat of regulation will have passed.

(He has a fairly lengthy and thoughtful explanation following the brief part I quoted.) Tim Lee and Professor Felten maintain that there are several reasons to wait, each describing ways that passing legislation now could backfire.

It seems to me that there’s another reason there’s no harm in waiting: yes, as Herman says, the issue is currently in the public eye. But why? A few ill-advised comments from a telecom CEO and a bunch of wild speculation and exaggeration. It doesn’t appear that there have actually been any serious violations of network neutrality yet. (One dinky ISP in North Carolina blocked rival VoIP services, but the FCC stopped that with current regulations.)

So if the issue is this hot based only on a theoretical threat, I can only imagine that if ISPs actually started violating network neutrality principles, the grass roots would be even more outraged. There would be plenty of political will to enact regulations at that point, if necessary.


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