EFF Warns That FCC Net Neutrality Rules Are a Bad, Bad Idea

My comment there makes the point now being emphasized by EFF:

"The FCC is way out of its league on this one. Basically, it is a creature of statute. It can do whatever Congress has authorized it to and no more. Nothing in its authorizing statute expressly permits it to impose the rules now known as net neutrality. Therefore, it sought to justify its ability to do so under the doctrine of so-called 'ancillary jurisdiction,' meaning that it had an implied power to do so in aid of its expressly granted powers. Unfortunately, a definitive federal appeals court ruling held that no such ancillary jurisdiction existed, leaving the matter for Congress to decide. Rather than deferring to Congress, the FCC chose to adopt a new rationale for its assertion of this authority. Congress overwhelmingly balked at the idea of any broad assertion of such authority and, in the back and forth, the FCC came up with the toe-in-the water approach just adopted to the satisfaction of almost no one. Even this assertion of jurisdiction will certainly be challenged in the courts in cases that will take years to decide, leaving this whole issue in a pathetic state of uncertainty for all concerned. Nothing good will come of this except for lots of employment for the lawyers who will be litigating whether this or that action is 'reasonable' and whether the internet is really like a public utility or not. All in all, a royal mess."

So that leaves the author with three choices: government-imposed competition (open access regulation), government-imposed net neutrality (network management regulation) or laissez-faire (which he implies is problematic in its current state). Pick your poison.

On the other hand, I disagree that some things the major ISPs have done is a simple result of lack of competition. Of course, the ISP market is in bed with the government. Of course, they get away with things they probably wouldn't in a less monopolistic market.

On the other hand, if the market were more open, who's to say favoring content or metered billing or whatever wouldn't emerge as optimal strategies. There are "private content network" companies out there who do precisely that - favor content on their networks - and the idea does not strike me as an inherently bad one.

Look at the problem posed by Netflix. They are a key driver in many of these discussions, because the bandwidth consumed by their online video services almost certainly is more costly than what they actually pay (and hence they can get away with charging customers far less than the cost of delivery). Yet, the government says ISPs can't "discriminate" against Netflix traffic by charging Netflix higher rates. What will end up happening is that the ISPs will just charge all of their users higher prices to make up for the bandwidth Netflix is using (see here for a good discussion: http://seekingalpha.com/article/238107-netflix-now-we-re-coo...)

Is that really the best solution? What if users had the ability to access an ISP who solely provided Netflix content and perhaps a few other services, and blocked traffic for anything else? In that case, they might pay for a basic internet subscription, and then some amount more for access to the private network. At least in that case, only the users who want access to Netflix content would pay more for it. I am sure the commenters here could think of many other problems with that business model, but it would be better than having everyone pay higher rates so that high bandwidth users can avoid "discrimination."