Whatever Happened to Net Neutrality?

Published: September 10, 2007

by Timothy Prickett Morgan

The U.S. Department of Justice has weighed in on the debate on Net Neutrality, having last week filed an ex parte brief to the Federal Communications Commission concerning prospective laws governing traffic on the Internet.

While Senators Byron Dorgan, Democrat from North Dakota, and Olympia Snowe, Republican of Maine, co-sponsored a bill to preserve the neutrality of Internet traffic in May, the bill has not come out of committee and the FCC seems to be in no big hurry to encourage Congress to legislate on the matter or to make rulings of its own that might affect how Internet traffic is routed and the performance that is guaranteed--or not--by the Internet. The bill was introduced two months after the FCC got into the debate in March, asserting that it was the proper government body to determine rules for traffic on the Internet.

A year and a half ago, Net Neutrality was on the lips of a lot of people in Washington, of the big telcos, cable companies, and service providers, and the modern Internet companies that are based on the Internet more than they are in a physical location on the planet. As you might expect, the telecom and cable companies that provide the backbone of the Internet and, for most of us, the links to our companies and homes, want to be able to shape traffic and charge a premium for premium service. This runs counter to a law dating before the Civil War in America ensuring that telegraph traffic would be transmitted without delay or any other kind of prejudice in a national telegraph network, regardless of who owned the wires. The common good, in that case, reined in the corporate greed. Net Neutrality advocates see the potential for the powerful communications companies to shape traffic away from parts of the Internet, which has happened on a number of occasions already, and they want laws to ensure absolute neutrality, as in the telegraph a century and a half ago. Some lawmakers in Congress want to meet somewhere between, allowing quality of service traffic shaping for a premium.

In the Justice Department brief filed last week, which you can read here, the DoJ is essentially backing up the position of the Federal Trade Commission, which also has a say in the Net Neutrality debate (until Congress creates a law saying otherwise). Both government agencies, not at all surprisingly, say that laws protecting the neutrality of Internet traffic or access are not necessary.

"The FCC should be highly skeptical of calls to substitute special economic regulation of the Internet for free and open competition enforced by the antitrust laws," the Justice Department briefing declares. "Marketplace restrictions proposed by some proponents of 'net neutrality' could in fact prevent, rather than promote, optimal investment and innovation in the Internet, with significant negative effects for the economy and consumers."

Heaven only knows what the FCC will do, and how Congress will react.

It is hard to say what is fair, and it is as hard to argue against Net Neutrality as a private citizen as it is natural for corporations, who have paid some of the cost of building the Internet, to want to maximize the revenues and profits they derive from it. The Internet is rapidly becoming the backbone of communications, but that is only true because American taxpayers paid for the initial development through the Defense Advanced Research Projects Agency and then again as Internet technologies were extended and perfected in academia and then moved into private and public companies. The telcos and cable companies did not pay very much to license the public spectrum they use, both in wired, wireless, and cable networks, and they often behave as if they were the public, not us. As far as I am concerned, I pay for the use of the airwaves every time I pay taxes and every time I pay my cable and phone bills. It is a simple, basic assumption that most people have.

Maybe the answer is to reckon exactly how much of their money the telcos and cable companies have pumped into building out the Internet, how much they paid for their spectrum rights, and how much it costs to do billing for such services. Then, maybe Uncle Sam should buy the Internet back after subtracting the amount of money we, as taxpayers, put into the Internet. Having done that, it can set up a public company--in the ideal sense of that word public--to build out and maintain the Internet, and charge a reasonable fee for access to telcos and cable companies that reach to our doors. Let Uncle Sam be the backbone, and telcos and cable companies can be the fingers and toes. Given that the telcos and cable companies want to have their little monopolies, this scenario seems unlikely. But this would perhaps be the best way of guaranteeing Net Neutrality.

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