shouting loudly

Net neutrality is really just the status quo

[Cross-posted from a comment made in response to this CNet story, "Net neutrality fans pressure U.S. Senate". Here's the link to the comment.]

The other thing the ISPs fail to mention is that network neutrality
has been the FCC-enforced norm of the internet since its
inception due to federal common carrier requirements.

Phone companies are explicitly required to carry all voice traffic
equally. Otherwise, they would have surcharged dial-up service
at a rate that priced millions of users and hundreds of ISPs out
of the internet business.

In just the last couple years, the FCC (esp. in the Brand X ruling,
leading to the Supreme Court decision) has done some serious
legal gymnastics to free broadband service from this legacy of
monopoly utility regulation. First, cable was declared exempt
from common carrier requirements; once the Supremes upheld
that as legal, the FCC exempted DSL, too. This is all recent
enough (taking effect in about the last year) that telcos haven’t
yet changed their business model. Inertia is part of the answer
(setting up the extortion racket takes time to plan and execute),
but really, they’re just waiting until they get what they want in
Congress–further deregulation in other areas, sealed by a
legislative stamp that no new neutrality legislation is necessary.

There’s another reason that telcos haven’t yet capitalized on the
end of common carrier requirements: merger stipulations. The
FCC still approves telecommunications mergers, and they’ve
been slapping on requirements that merged companies respect
net neutrality for the first few years of a merger. Since nearly
everybody’s merged with somebody in the last few years, most
major broadband players are still restricted from demanding
tollbooth charges on 3rd party traffic.

When telcos (and their paid mouthpieces) demand the proof that
something bad has happened without net neutrality legislation,
call them out on what they know to be true: the internet is not
yet filled with tollbooths ONLY because the feds have, until now,
prevented such extortion.

Telco executives, when they thought this would all be played out
in the business pages, were loudly proclaiming (to investors,
they thought) that the new internet would be an opportunity for
them to cash in on their incumbent position in the utterly
uncompetitive broadband market. In doing so, they’ve
accidentally tipped their hand to the broader public, and people
who know anticompetitive behavior when they see it have cried
foul.

If you care to read more, please see the paper I’ve just had
accepted to the Federal Communications Law Journal. It’s at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=902071