Old school regulation of internet service providers raises the threat of less broadband competition and more consolidation

Yesterday’s vote in the U.S. Senate that upended the Federal Communications Commission’s repeal of its net neutrality rules was more political grandstanding than good policymaking. S.J. Res. 52 nullified the Commission’s “Restoring Internet Freedom” rules that would have gone into effect on 11 June 2018. The Restoring Internet Freedom rules reclassified broadband access service as an information service; reinstated private mobile service classification of mobile broadband internet access service; required internet access service providers to disclose information about their network management practices, commercial terms and conditions, and performance characteristics; and eliminated the internet conduct standards and bright-line rules.

By repealing the Commission’s Restoring Internet Freedom rules, the Senate signaled its preference for the Commission’s 2015 Open Internet order. The order, based on the premise that broadband access providers posed a threat to openness on the internet and could hinder the virtuous cycle of innovation being introduced by edge providers, the Commission created a regulatory framework that classified broadband access service as a telecommunications service. The 2015 order also established what it referred to as “bright-line” rules that prohibited paid prioritization; the throttling of traffic from websites; and the blocking of consumer access to the legal online content of their choice. In addition, broadband access providers were required to provide consumers with information as to their network management practices, network performance, and commercial terms and conditions. The rationale for this transparency was the need to ensure that consumers made choices based on accurate information.

With its declaration that broadband access is a telecommunications service, the 2015 order subjects broadband access providers to certain sections of the Communications Act of 1934, specifically sections 201, 202, and 208. Although the Commission expressed an intent to not regulate the rates that broadband access providers charge consumers, including edge providers, section 201 of the Communications Act allows broadband access providers to establish different classifications of service.

For example, services may be classified into day, night, repeated, unrepeated, letter, commercial, press, government, etc. So, while no content delivery service can pay a broadband access provider a little extra in order to have their traffic placed ahead of another content provider while in the same class of service, section 201 allows broadband access providers to establish different classes of service that content providers can explore and use.

Let us assume that for some reason the resolution is also approved in the U.S. House of Representatives and President Trump fails to issue a veto. Given the application of sections 201, 202, and 208, small broadband access providers may be faced with the opportunity of being acquired. If a large broadband access provider offers various classes of broadband access, it in essence is carving out smaller markets within which it will dominate. If a broadband access provider carves out a classification that competes with a smaller broadband access provider, that smaller provider will face existential choices. Either lower its rates to where it no longer sees a profit and eventually leaves the market or be acquired which means getting to non-existence a lot faster. The 2015 Open Internet order could well be an example of how regulation stifles competition.

Lastly, I would expect that states will want to get in on the action. I have made this argument before. Under a 2015 Open Internet order regime, states will reassert themselves as the frontline for consumer protection. State public utility commissions don’t see themselves as agencies that sit around and handle consumer complaints all day. They rather those annoying complaints be addressed by their states’ respective attorneys general. State public utilities would rather flex their muscles in the pricing arena and will probably tailor state rules that align with sections 201, 202, and 208 of the federal communications act. The rules and the accompanying administrative procedures that broadband access providers would have to comply with will become burdensome on smaller players.

The result: regulation creating a less competitive market.

Happy anniversary, World Wide Web. Now, let’s go back to 1988

On 12 March 1989, Tim Berners-Lee publishes a proposal to link hypertext with transmission control protocol, the basis for the world wide web. On 6 August 1991, he launches the first web page. Prior to his proposal, the internet was pretty much a niche hideout for academics and military researchers. Berners-Lee’s proposal helped introduce ‘democracy’ to the original dark web of interconnected computers.

Democratizing digital information via open network architectures unleashed the digital demons that Mr Berners-Lee would like to see regulated today. We went from a relatively simpler system where Dr James Haywood Rolling Jr could send Dr Marshall Shepherd samples of research that could add artistic flavor to the otherwise drab depiction of weather patterns, to the current system where an 18-year old dressed in psychedelic garb can do the booty clap in front of a smartphone and send the images live from Accra. Using this information, the Digital Daemons, i.e. #Facebook#Google, and #Twitter, can create profiles based on every ‘like’ the booty clapper receives and market services and products to consumers.

Closer inspection of the history of the world wide web and Mr Berners-Lee’s criticism of today’s social media/social network companies exposes a downside of the premise that the Digital Daemons are negatively impacting global connectivity via the internet. Mr Berners-Lee is concerned that the one-half of the planet currently not connected to the internet may be at a disadvantage culturally and economically and that connecting to the Flying Spaghetti Monster that is the world wide web may be the developing world’s salvation.

Ironically, it is that arrogant premise that the world needs to be connected to a single standard that drove European colonial expansion across the globe and spawned a global financial system anchored by the Bank of International Settlements, the World Bank, and the International Monetary Fund to replace the colonizer when Europe entered its post-World War II decline. Whether he realizes it or not, Mr Berners-Lee’s liberal position on digital connectivity is steeped in the European DNA for conquest.

If Mr Berners-Lee and other progressives are so bloody concerned about the negative impact the Digital Daemons are having on access to and distribution of information, they should push for an internet that existed pre-1989 where communities of value-based information exchangers created their own databases, and protocols and criteria for membership in these groups. Ironically, under that type of scenario, application of net neutrality rules based on Title II of the Communications Act would be valid because the administrators and owners of the databases could more easily be defined as consumers of telecommunications in some type of corporate form.

Sometimes you have to go back to your past to find a solution to a current dilemma. Happy Anniversary, World Wide Web.

Some clarity on what net neutrality is

The Twitter-verse is going bonkers over today’s report that the Federal Communications Commission is considering getting rid of net neutrality.  That view is erroneous. The concept or principle of net neutrality is not being abandoned. What Chairman Pai is proposing is that the FCC stop applying the telecommunications rules found in Title II of the Communications Act to enforce net neutrality.

In the late 1980s and early 1990s, internet protocol was being introduced into phone networks. Also, new local phone entrants such as cable companies and local network bypass companies were bringing new services into local markets. The issue was, how do we bill for the exchange of traffic ie data and voice traffic in such a way as to encourage competition. Regulators decided to lightly regulate the agreements that these companies entered into to exchange traffic. Some companies decided to exercise what was once called “bill and keep.” In other words, they wouldn’t bill each other for the exchange of traffic.

Over past 25 years, this traffic has increased. Phone networks needed the additional revenue to invest in networks that could keep up with traffic as well as compete with bypass providers like cable companies. Also, content providers and search engines were developing and spawning more traffic. Net neutrality grew out of this. In short, it has never been about democracy for the consumer. That’s a bullshit argument that a strategic communications expert made up in order to generate support from regulators to keep the exchange of traffic between the Googles and the Verizons low to non-existent.

The consumer is being used if you will as an excuse. Rates are going to stay where they are. The real issue is, smaller content providers who can’t pay broadband companies or content delivery companies the fees to move their traffic will fall to the wayside.

Consumers are being duped by Facebook and Google into supporting their argument for net neutrality. It is ironic that those companies use the “open internet” concept to design apps that spy on you….