April 23, 2014

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The Markey Net Neutrality Bill: Least Restrictive Network Management?

It’s an exciting time in the net neutrality debate. FCC Chairman Jules Genachowski’s speech on Monday promised a new FCC proceeding that will aim to create a formal rule to replace the Commission’s existing policy statement.

Meanwhile, net neutrality advocates in Congress are pondering new legislation for two reasons: First, there is a debate about whether the FCC currently has enough authority to enforce a net neutrality rule. Second, regardless of whether the Commission has such authority today or doesn’t, some would rather see net neutrality rules etched into statute than leave them to the uncertainties of the rulemaking process under this and future Commissions.

One legislative proposal comes from Rep. Ed Markey and colleagues. Called the Internet Freedom Preservation Act of 2009, its current draft is available on the Free Press web site.

I favor the broad goals that motivate this bill — an Internet that remains friendly to innovation and broadly available. But I personally believe the current draft of this bill would be a mistake, because it embodies a very optimistic view of the FCC’s ability to wield regulatory authority and avoid regulatory capture, not only under the current administration but also over the long-run future. It puts a huge amount of statutory weight behind the vague-till-now idea of “reasonable network management” — something that the FCC’s policy statement (and many participants in the debate) have said ISPs should be permitted to do, but whose meaning remains unsettled. Indeed, Ed raised questions back in 2006 about just how hard it might be to decide what this phrase should mean.

The section of the Markey bill that would be labeled as section 12 (d) in statute says that a network management practice

. . . is a reasonable practice only if it furthers a critically important interest, is narrowly tailored to further that interest, and is the means of furthering that interest that is the least restrictive, least discriminatory, and least constricting of consumer choice available.

This language — particularly the trio of “leasts” — puts the FCC in a position to intervene if, in the Commission’s judgment, any alternative course of action would have been better for consumers than the one an ISP actually took. Normally, to call something “reasonable” means that it is within the broad range of possibilities that might make sense to an imagined “reasonable person.” This bill’s definition of “reasonable” is very different, since on its terms there is no scope for discretion within reasonableness — the single best option is the only one deemed reasonable by the statute.

The bill’s language may sound familiar — it is a modified form of the judicial “strict scrutiny” standard the courts use to review government action when the state uses a suspect classification (such as race) or burdens a fundamental right (such as free speech in certain contexts). In those cases, the question is whether or not a “compelling governmental interest” justifies the policy under review. Here, however, it’s not totally clear whose interest, in what, must be compelling in order for a given network management practice to count as reasonable. We are discussing the actions of ISPs, who are generally public companies– do their interests in profit maximization count as compelling? Shareholders certainly think so. What about their interests in R&D? Or, does the statute mean to single out the public’s interest in the general goods outlined in section 12 (a), such as “protect[ing] the open and interconnected nature of broadband networks” ?

I fear the bill would spur a food fight among ISPs, each of whom could complain about what the others were doing. Such a battle would raise the probability that those ISPs with the most effective lobbying shops will prevail over those with the most attractive offerings for consumers, if and when the two diverge.

Why use the phrase “reasonable network management” to describe this exacting standard? I think the most likely answer is simply that many participants in the net neutrality debate use the phrase as a shorthand term for whatever should be allowed — so that “reasonable” turns out to mean “permitted.”

There is also an interesting secondary conversation to be had here about whether it’s smart to bar in statue, as the Markey bill would, “. . .any offering that. . . prioritizes traffic over that of other such providers,” which could be read to bar evenhanded offers of prioritized packet routing to any customer who wants to pay a premium, something many net neutrality advocates (including, e.g. Prof. Lessig) have said they think is fine.

My bottom line is that we ought to speak clearly. It might or might not make sense to let the FCC intervene whenever it finds ISPs’ network management to be less than perfect (I think it would not, but recognize the question is debatable). But whatever its merits, a standard like that — removing ISP discretion — deserves a name of its own. Perhaps “least restrictive network management” ?

Cross-posted at the Yale ISP Blog.

Comments

  1. JJ says:

    Thanks for sharing with good ideas.

  2. Anonymous says:

    Who deleted all the comments on all the posts older than September???

  3. Kaleberg says:

    One problem is that we don’t what ISP control actions are reasonable, but we do have some idea of the effects of unreasonable control. Any sensible regulation will address the outcome, not the mechanism of control. It would be different if the typical user had access to a broad choice of ISPs, but most people do not. Once a packet is “street legal” it should have the same access to the network as any other street legal packet. “Least restrictive” describes this fairly well. Otherwise we’ll have our ISPs cherry picking packets to maximize short term profits at the expense of crushing future technologies. Sure, this will be good for the CEOs who will pocket a bigger bonus, but the stockholders and customers will be stuck with the long run no growth bag.

    • Anonymous says:

      You say, “It would be different if the typical user had access to a broad choice of ISPs, but most people do not.”

      So now that the real problem has been identified, why do we attempt to solve some other problem that has not even been demonstrated to even exist yet? Handing off the management of networks to the FCC merely perpetuates the lack of competition in these markets.

  4. Anonymous says:

    The FCC has left its options wide open to pick and choose where and when this gets enforced. With no solid definition of what “neutrality” really is, we get whatever the FCC says on the day. Presumably no accountability as to why decisions are made, either.

  5. rp says:

    Although the language uses the definite article, you can almost certainly come up with a bunch of different policies that would all qualify as “least restrictive”. (Analagously, see some of the “best” language in the Clean Air and Clean Water acts.)

    And if you think this language will provoke a food fight, imagine what would happen if the FCC were explicitly empowered to allow “some gaming of the rules, but not too much.”