Net Neutrality Is Already here, “Regulations” Open Sourced outside Auspices of Government

by Mike Wendy on November 9, 2010

I’m not so concerned about what happens for Net Neutrality in the next Congress.  Sure, there’s a vacuum that could be filled in the lame duck session – either by the outgoing Members, or by the FCC itself – to unilaterally impose Net Neutrality regulations on network providers.  But probably what’s more likely to occur is that all parties, including the FCC, will take a breath, feel the political temperature, and patiently await what the new bosses have to say before going forward.

Of course, the issue became even more complicated with all the special interest histrionics of late, as they called for regulators to essentially “Kelo” Fox’s Internet content to Cablevision during their retransmission spat.  We learned also from this (as well as the networks not wanting to help Google TV much with their valuable content) that Net Neutrality is no simple concept, contrary to the oft-repeated claims of those special interests.  That it could apply to Internet content providers, too, instead of where it has been in the past, being primarily focused on network ISPs.

Those special interest entreaties probably backfired – thankfully.

Noisy as this debate has been, one thing that heartens me is this – I think we have the model which already helps the Internet grow.  I think even the regulators see it, too.  It involves less government.  It involves “open source” thinking.

The present Administration campaigned vociferously on an “open” government platform (reaffirmed again this week) so that it is not only more efficient for American taxpayers, but also more accountable through “bottom up” change.  Some pundits have compared this style of governing to open source technology (like Linux-based software).

Open source has one main hallmark.  It harnesses the power of the “non-proprietary.” Building blocks (specifically, code) are not “owned” in a classic sense.  Thus, proprietary tethers are largely removed (legally and sometimes not…but I digress), moving “control” of any given system to the “edge” as opposed to it being centrally manipulated.

The Internet is both built on open source technology, and reflects the open source ethos of non-proprietary disruption.  Among other phenomena, this disruption has erased the middleman in many systems which we use on a daily basis.

E-mail.  e-bay.  Amazon.  Lands End.  iTunes.  Huffington Post.  Red State.  YouTube.  Hulu.  Vimeo.  Pandora.  GoTo Meeting.  SnapFish.  Android.  WordPress.  These all, and oodles more developed everyday, have simplified our lives by eliminating, or vastly reducing the cost associated with, the middleman.

Policymakers have to see that with the Internet’s disruptive effects these past 15 years, the FCC’s own middleman role (one that it has occupied for the past 75 years) cannot remain un-disrupted in perpetuity.

Yet thus far, Government has proven stubbornly resistant to this change.  In fact, it has become ever more proprietary with its powers. Over the past two years alone we’ve seen new health care, TARP, automobile industry, Stimulus and financial sector laws and regulations (among others), all trafficking in the underlying notion that only government can power America through the prevailing crisis, oblivious to the fact that government policy has had a distorting, if not outright conniving, effect on each crisis in the first place.

So, it’s not surprising that where government regulation is virtually absent – as on the Internet – we are told that a potential crisis will surely mount unless government, through its laws and regulations, keeps the medium pried open.

This does not need to be (perhaps last week’s election has pushed a reset button).

Though numerous special interests claim the Internet has become somehow “broken,” scarce evidence of this has ever be presented.  This is because some powerful forces are at work which have, in an open source / non-proprietary manner, kept the Internet working and consumers protected.

In other words, we have Net Neutrality now…but without proprietary rule or regulation.

How can that be?


  • Technology continually evolves – with fiber, coax, DSL, 3G, 4G, BPL and satellite (and who knows what’s coming down the line) – making barriers to broadband transmission ever lower.  200 million Americans now have broadband, with more than 90% of America having at least one provider, and over 80% having at least two providers.  Transmission technology continually grows this pie of competitive options (as illustrated here and here).
  • Hardware, software and content that depend on broadband have exploded, growing a vibrant consumer marketplace that could not exist but for robust, competitive and affordable Internet infrastructure.  Further, hardware, software and content symbiotically work to evolve Internet infrastructure, giving network providers further impetus to roll out new services and connectivity daily.
  • Consumer education and “transparency” tools (such as here) have flourished, providing consumers with unprecedented power to know what’s available, and then shop (or constructively criticize) their broadband purchases accordingly.
  • Industry best practices – through non-governmental volunteer groups, associations, and watchdogs (as seen here at page 9) – work to keep the Internet ticking technologically, as well as keeping consumers protected.
  • Marketplace guidance / competitive pressures keep companies hyper focused on the needs of consumers, checking “bad behavior” before it occurs, or quickly rectifying it when it does happen (which is not too often, BTW).
  • And consumer protection tools, such as those at the FTC and at the DoJ, create not only a backstop where “bad behavior” can be punished if it occurs, but also prevent any such behavior before it can be problematic in the first place.

All of this (except of course for the FTC and DoJ) has occurred without proprietary hook from the government.  And, while admittedly imperfect (the marketplace continually evolves), this organic growth remains far more accommodating to innovation than the alternative – i.e., proprietary government regulation that jams “solutions” into markets along with a host of unintended consequences that only perpetuate government oversight and distortion.

Open source protection is here.  Importantly, it doesn’t demand that government be involved much, if at all.  It uses the dynamism and natural disruption of markets and innovation to stay ahead of the regulator.  Further, it promotes liberty through bottom-up, edge-oriented change.

Whatever the next Congress brings, I am hopeful it recognizes this (even if only instinctively), and allows the Internet to thrive as it clearly is now – free from stultifying, proprietary regulation.

Myk Dinis November 17, 2010 at 11:39 pm

Unfortunately, you –although well intentioned (less government = good, normally)– are mistaken this time around. We don’t need “regulation” (borrowing your abuse of quotes), we NEED ISPs to share status with TelCos and railroads — common carrier.

In America, all major “providers” have enjoyed having government funding available for infrastructure deployment. By receiving said subsidies and help, they should be beholden to the same rules that are applied to other government-subsidized industries.

I vehemently oppose the rampant spread of government encroachment upon my “homestead”, but allowing a “welfare industry” to double charge me, for what they were given by the graces of my “over-taxed” paycheck, is villainous!

Hulu –currently boycotting– exemplifies why Net Neutrality needs to exist. Denying a client access based on transport is abhorrent. Highways forbid access to bicycles, pedestrians, etc… for safety reasons; reasons we all agree with. If they forbade access based on vehicle manufacturer, there would be protests on every street corner.

Net Neutrality, or simply Common Carrier status, would prevent everyone from future (and current) acts of extortion by ISPs, content providers, etc…

If you were denied access to the interstate because you chose to drive an SUV, would YOU be championing the contractor who was paid to pave it?

Slave2Liberty December 20, 2010 at 7:32 pm

With the fervor in support of Net Neutrality-like regulation you’d think that the consumers are being shafted in every way imaginable. The fact that 90% of Americans have some form of internet service and many having 2 or more, ALL despite the lack of government regulation would suggest that the free market has done its job by allowing competition and industry groups like the IETF to deliver what the consumer wants in the most efficient manner. Government reulation will ultimately lead to cost controls and eventually rationing and subsidization of the consumer.

“Highways forbid access to bicycles, pedestrians, etc…”. Highways are owned by the public sector – private business are NOT.

Bill Holt December 16, 2010 at 4:02 am

I don’t pretend to understand all the in’s and out’s, but the way I see it Comcast ATT Verizon could end up letting Amazon and iTunes ride their highways but not my little website. Maybe set up a toll system so only the big operators can ride the fast lane? I want the government to keep things totally open to the public, rich poor big small all get to ride the same speed on all the same highways.

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