Regulator speak

I’m always hesitant to raise the subject of net neutrality here, not because I doubt its huge importance but simply because of the yawns it tends to evoke on this side of the Atlantic. Ofcom has long argued that this lower priority stems from the relatively high levels of retail competition for internet access in European markets – a questionable defence.  But sometimes the subject just can’t be avoided, and Ed Richards felt obliged to tackle it when, in early April, he addressed the (newly-formed) US Chapter of the International Institute of Communications in Washington DC.  Trying hard not to patronise his American audience, he explained the gist of Ofcom’s policy as follows:

“After due consideration, we concluded that there were benefits associated with both the ‘best-efforts’ internet and the provision of managed services… and that one key aim was for a framework which enabled both of these simple concepts to be accommodated… In a sense that does amount to a form of discrimination, but one that is normally efficiency enhancing and ultimately better for consumers.” 

After more warm words about the value of the internet, he ended on this, less than resolute note:

“The internet is an enormously complex and dynamic ecosystem, where the law of unintended consequences looms very large indeed… as we finally move towards a collective view on the matter, it may be that the most apposite adage is “more haste less speed”. 

Speedily or not, the FCC came up with a further modification to its own regulatory prescription on 24^th April and, guess what, it looks remarkably like the Ofcom compromise solution.  Here’s how FCC Chairman, Tom Wheeler, describes the latest proposal (which goes to a vote on 15^th May):

 

“The proposed rule is built to ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the content, services and applications they demand, as well as an Internet that offers innovators and edge providers the ability to offer new products and services… If anyone acts to degrade the service for all for the benefit of a few, I intend to use every available power to stop it.” 

So, both regulators envisage a possibly two-speed internet, a ‘form of discrimination’ in Ed Richards’ words, but the best efforts version to be afforded some regulatory protection (and related competition issues to be decided on a case-by-case basis).  Predictably, the net neutrality camp in the US has been howling in protest at the FCC’s intentions.  One of the more articulate critics is Tim Wu, a professor at Columbia Law School.  I happen not to agree with him but this comment of his directly challenges the UK/US regulatory consensus:  

“The new rule gives broadband providers what they’ve wanted for about a decade now: the right to speed up some traffic and degrade others. (With broadband, there is no such thing as accelerating some traffic without degrading other traffic.) … This is what one might call a net-discrimination rule, and, if enacted, it will profoundly change the Internet as a platform for free speech and small-scale innovation.” 

As Ed Richards almost said: “There may be trouble ahead…”