Forgetting the next application

The Department of Justice earlier this month felt somehow moved to get involved in the network neutrality debate (read the press release, the submission itself and a related Network World story).

What drove the DoJ to do so is not at all clear to me. The DoJ implies it did so because it thinks it understands the issues. From the contents of its submission to the FCC I would argue with that assumption. The DoJ got a lot of the details wrong, drew the wrong conclusions from the statistics it quotes and missed the most important factor, which I’ll discuss further down in the column.

The DoJ claims it has expertise in this overall area based on its review of the many recent telecom mergers. Quite a few commentators have taken issue with the conclusions the DoJ reached in most of these cases, but I have to admit that Justice did undertake some sort of review in each of the cases.

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The Department of Justice earlier this month felt somehow moved to get involved in the network neutrality debate (read the press release, the submission itself and a related Network World story).

What drove the DoJ to do so is not at all clear to me. The DoJ implies it did so because it thinks it understands the issues. From the contents of its submission to the FCC I would argue with that assumption. The DoJ got a lot of the details wrong, drew the wrong conclusions from the statistics it quotes and missed the most important factor, which I’ll discuss further down in the column.

The DoJ claims it has expertise in this overall area based on its review of the many recent telecom mergers. Quite a few commentators have taken issue with the conclusions the DoJ reached in most of these cases, but I have to admit that Justice did undertake some sort of review in each of the cases.

The main DoJ assertions are:

* Unfettered competition is the way to "foster innovation and development of the Internet."

* Limiting the ability of carriers to charge content owners and service providers extra would mean that you and I would "shift the entire burden of implementing costly network expansions and improvements to consumers."

* There are few examples of carriers discriminating between applications.

* No one can agree on what "network neutrality" means.

* Some discrimination can be a good thing.

* The Internet is growing just fine without regulations.

I agree that real competition would likely moot the network neutrality debate, but there are very few places in the United States where this exists for high-speed Internet service. Even where both a telephone carrier and cable company offer service, there may not be much in the way of real competition. Two identically minded service providers (both believe that the future of the Internet is for content delivery from large content providers) tend to be less than aggressive competitors.

The DoJ seems to think that content providers do not already pay for their Internet service. There is no way that the "entire" cost will ever shift to consumers unless the carriers decide to give Google et al a free ride.

The DoJ submission is accurate about the dearth of current reports of unfair Internet treatment. But will the FCC be able to actually react within a reasonable time period if that changes dramatically in the future?

The DoJ points to Post Office express mail as an example of good discrimination but misses the core point that customers decide if they want to buy the better service. No network neutrality advocates that I know of would try to block me from buying a high-speed connection, and few would say that it would be wrong for a carrier to offer me, as a customer, the option of paying for the carrier to handle different traffic in different ways. The carriers want to extort money from content providers who have already paid for their connection once, instead of offering me options.

The DoJ report points out that the Internet is growing just fine without regulations and it is right, but it misses the not-so-small detail that the growth is of an Internet that is in fact (as the DoJ points out) essentially neutral. Those figures do not indicate what would happen in a non-neutral net.