Net Neutrality is at a Fork in the Road, But not an Existential Fork

Outgoing Federal Communications Commission Chairman Tom Wheeler says we are at a fork in the road where it comes to network neutrality and gatekeeper policy. You will hear some argue we face the "death of net neutrality."

That is unlikely. What we likely will see is a change in the scope of network neutrality (strong or more limited forms), a change in "how" we deal with protections (prohibiting behavior in advance or waiting to act only when abuses happen) and sometimes, "who" (which agency) regulates.

We might also see a change in thinking about where gatekeeper power actually exists, using a more symmetrical approach (watching for abuses by all gatekeepers--access or edge).

Up to this point network neutrality has been about policy that regards only internet access providers as gatekeepers.

Wheeler continued to use that formulation in his public letter to the new incoming FCC administration, whoever that might be. Wheeler emphasizes “an era of ISPs operating responsibly at both the edge and the core network.”

That is not necessarily the thinking that could, some might argue “should” be the context of policy in the future. Economist Hal Singer, for example, argues that both edge providers (app providers such as Google or Facebook) and big ISPs (Comcast, Charter, AT&T or Verizon) can have gatekeeper power, and both edge and access need to be evaluated, when gatekeeper market power is evaluated.

The new conversations, under a new administration, might well shift to that wider context, with some new approaches to “where” consumer protection functions should reside, for example. Some believe the Federal Trade Commission, which has that broad consumer protection function is where that oversight should reside, not at the FCC.

On the other hand, it is unclear how ex-ante before the event) and ex-post (after the fact) regulatory approaches might be adjusted. Under Wheeler, the approach has been ex-ante: setting rules that proscribe behavior. The other approach is ex-post: taking case by case action when abuses arise.

The former approach is more of a command-and-control approach; the latter is more of a “go ahead and innovate, and we’ll examine abuses if they arise” approach.

It seems clear that change is coming. Some think the danger is a repeal of all “network neutrality” rules. Others might argue the big change is use of the “common carrier” framework. There originally was broad support for net neutrality (net freedoms) rules that protected consumer access to all lawful applications. There has been great friction over the use of the common carrier framework, and “strong” forms of ex-ante regulation that prohibit innovation, by outlawing any forms of quality of service for internet apps.

Many would agree there is a possibility of market power abuse in the broad internet ecosystem, by a few firms operating “at the edge” (app providers) or as access providers. Among the many issues, though is how to best protect competition and innovation without proscribing or prescribing activity, in advance of any potential abuses.

What needs to be done, and by whom, using what tools, now is a live issue.