The Net Neutrality debate has narrowed -- Why the recession may narrow it further

The reality is that the net neutrality debate has narrowed greatly over the last three years, and could narrow further as the recession puts a public policy premium on growing the economy, creating jobs and promoting investment.

• That was my general conclusion in preparing to participate in the CES' Open Internet panel yesterday as I stepped back and took stock of the state of the Net Neutrality/Open Internet debate and issue.
• The panel was moderated by Rob Pegaroro of the Washington Post and had panelists from Free Press, Amazon, Google and AT&T -- in addition to me.
• I believe you will find the two main points I made thought-provoking -- and that you will find the reaction they elicited from my fellow panelists interesting as well. 

First, I said the big untold story is how much the scope of the net neutrality/open Internet debate has narrowed over the last three years.  Consider the following:

• The broadband industry norm is strong voluntary compliance with the FCC’s 2005 broadband principles. The debate has narrowed to whether an open Internet -- achieved voluntarily, naturally and collaboratively -- is sufficient, or whether the government must coerce or force Internet openness via law or regulation.
• There is now widespread acceptance of the essential role of, and need for “reasonable network management” and smart network innovation, where before the FCC review of the Comcast’s network management practices, most neutrality proponents insisted the Internet must be 'a stupid network" (per Mr. Isenberg) with "dumb" pipes where all bits are treated the same. 
• Now there’s mainstream acceptance of the essentiality of prioritizing traffic to enable real time applications, prevent jitter, and deliver quality of service (See George Ou's analysis) -- where original net neutrality proposals categorized any traffic prioritization as de facto discrimination that should be banned.
• It is now a formality that illegal activity/traffic warrants no neutrality per the FCC Comcast decision, where before there were many trying to define all Internet traffic/content, including P2P piracy, as protected free speech.
• It is now acceptable per the FCC for a broadband ISP to throttle the traffic of high-bandwidth users to control network congestion, if it’s done on a protocol-agnostic basis -- where before, any throttling of traffic at all -- was alleged to be improper, discriminatory and not permissible.
• It is now widely conceded that broadband ISPs can, and should, offer different prices/tiers for different speeds of service and for excessive usage, where originally net neutrality meant opposition to a two-tier Internet because any relative network slowness would be tantamount to discrimination or a violation of free speech.
• There is increasing recognition that collocating video servers closer to the Internet customer can improve performance and reduce traffic congestion on the Internet backbone, where before any smart network configuration or collaboration was assumed to be discriminatory.
• Most remarkable of all is the widespread endorsement and consensus behind the “Call to Action for a National Broadband Strategy” where most all of the previously warring parties in the net neutrality debate have agreed to broad national broadband goals and a policy framework for promoting broadband investment, adoption and use in order to grow the economy, create jobs and spur broadband deployment to all Americans.

This is not to say that there are not still some very serious differences over net neutrality, but they have narrowed as the debate has gotten more informed, realistic, and attuned to the legitimate concerns of others.

• Ben Scott of Free Press disagreed with my take on the narrowing of the debate and quipped: "I have some apple pie and baseball in my briefcase that I can put on the table so we can sing kumbaya together."
• Rick Whitt of Google conceded that because the original telecom reform legislation three years ago was a "convenient" vehicle for promoting an Open Internet, that the original pro-net neutrality rhetoric was not "fully cooked." 

Second, the other big point I made on the CES Open Internet panel was about the relevance of the recession and the pending economic stimulus package -- to the net neutrality debate.

I shared with the audience a wise American Indian proverb: “chase two rabbits -- catch none.” I explained that there are two big broadband “rabbits” being chased right now – universal broadband and net neutrality/open Internet.

The big policy choice now is whether to chase the broadband "rabbit" everyone agrees on – universal broadband – and grow the economy, create jobs and promote investment, or whether to continue to fight over actively chasing both broadband “rabbits” -- and likely come up empty-handed -- as the wise proverb warns.

• The reality is that these broadband “rabbits” are running off in opposite directions.
  • Universal broadband investment is broadly viewed as an economic stimulus with a big multiplier effect. Net neutrality is broadly recognized as the opposite –  a big disincentive to invest in broadband infrastructure.
  • Moreover, universal broadband is definable, measurable, and fosters certainty, while net neutrality is un-definable, un-measurable, and creates huge uncertainty.

Interestingly, two CES panelists disagreed with my broadband "rabbit" chasing metaphor.

·        Ben Scott of Free Press emphatically disagreed, first saying that “universal broadband and net neutrality were completely separate issues” and secondly that “net neutrality and investment have nothing to do with one another.”

o       My view is that is wishful thinking by Mr. Scott and that it ignores history, behavioral economics, and politics. The fact is a lot of broadband deployment originally was delayed several years in the U.S. because of regulation and regulatory uncertainty. Moreover, most in Washington recognize that Washington actions can affect investment and the economy. Isn't that the core assumption undergirding the rationale for the economic stimulus package?

o       The fact that net neutrality and investment are separate in the mind of a public interest advocate, does not mean they are separate in the minds of Congress, the Administration, companies, investors and voters.  

·        Rick Whitt of Google disagreed in a different way, arguing that the best way to reduce uncertainty would be simply to quickly implement new neutrality regulations.

o       I countered with a quote from former FCC Chairman Kennard about open access regulation: “Its easy to say that government should write a regulation… It is quite another thing to write that rule, to make it real, and then to enforce it.”

o       I also reminded Mr. Whitt (who used to work for MCI) that it took almost seven years for the FCC and the courts to finally establish Telecom Act policy and create broadband investment certainty. I suggested that the new quick net neutrality rule Mr. Whitt was proposing essentially would involve re-litigating the 1996 Telecom Act and the Supreme Court’s 2005 Brand 'X' decision.

Bottom line:

Like it or not, the recession and the need for a substantial economic stimulus affect the net neutrality debate. No policy issue is an island, especially in this fragile economic environment. The recession requires everyone work together to address our Nation's urgent priorities -- jumpstarting economic growth, job creation and investment.

• The strong consensus behind promoting Universal broadband makes it doable.
• The divisiveness of Net neutrality regulation threatens to undermine the consensus around, and doability of, universal broadband.

American Indian wisdom guides us to focus and catch the universal broadband "rabbit" -- to spur the economy and investment, and create good jobs.