Atkins & Weiser “Third Way” Paper, Isenberg Responds, and My Own Response

A few months back, Robert Atkins and Phil Weiser wrote this paper called a A “Third Way” on Network Neutrality. I recommend reaing the paper, but to summarize: The paper asserts that the NN debate has polarized between the telcos & cable cos, who want an unlimited right to control traffic, and the pro-net neutrality advocates, who want all packets treated equally by the network operator. Atkins & Weiser see this polarization as obscruing the fact that both sides of the debate raise legitimate concerns about market abuse and investment in networks on the one hand, and about government intrusiveness into network management on the other.

Atkins & Weiser therefore recommend an approach they believe addresses both sets of legitimate concerns. Congress should permit network operators to have considerable discretion with tiering — including favoring content based on origin as well as by nature of service. However, to protect consumers from abuses of market power, network operators must (A) fully disclose which packets are favored and why. In this way, consumers can ascertain readily if their lousy connection with mediastreamerA and great connection with mediastreamerB is a consequence of mediastreamerA having a bad service or their ISP cutting a deal with mediastreamerB; (B) Congress should affirm the FCC’s responsibility to monitor the broadband ISP market for anticompetitive abuses and permit the FCC to resolve any abusive practice that may emerge either by adjuidcation or by rule; and (C) the government should provide other incentives — such as tax credits or subsidies — to facilitate broadband deployment.

Recently Dave Isenberg wrote a a strong critique of the paper. Isenberg chastises Atkins and Weiser for falling into what I shall characterize as the attractive trap of the apparently “reasonable compromise.” Isenberg argues that, on the one hand, Atkins and Weiser lack vision. They fail to appreciation of the revolutionary aspects of the internet and the damage to the power of the internet as a disruptive technology if broadband network providers can exercise the kind of control over content and services that Atkins & Weiser would permit under traditional antitrust analysis. On the other hand, Isenberg maintains that Atkins & Weiser fail to appreciate the “Realpolitik” problems of relying on the FCC for enforcement instead of enacting a prophylactic, self-executing rule. Given the potential for agency capture and the length of time it will take the agency to act, a rule which does nothing but set up the FCC as a watch dog with discretion is worse than useless. Only by prohibitting tiering and requiring network neutrality can save the power of the internet as a disruptive technology capable of challenging the core businesses (such as video and voice) of the network providers themselves.

About a month ago, Phil Weiser and I debated this point over on the Public Knowledge policy blog. You can see our back and forth here: Phil’s first post, my response, Phil’s reply to me (with my reply in the comments), and Phil’s final summation.

As folks might imagine, I tend to side with Dave Isenberg on this one, although I recommend the Atkins & Weiser paper to folks interested in alternative views. Atkins and Weiser are no industry shills or ideological Neocons refusing to recognize the potential dangers. And, as I have always said, anyone who wants to formulate real policy rather than foster religious ideology needs to consider other views and recognize where someone else has a valid point. I don’t agree with Atkins & Weiser (for reasons I’ve covered at length in the links and elsewhere), but I’m glad to have considered what they had to say.

Stay tuned . . . .

They Chose to Praise Spectrum Ownership When They Should Have Buried It

The Cato Institute a solid bastion of neo-conservative economic thought (i.e., I disagree with them, but they aren’t industry sock puppets) has released a paper by Dale Hatfield and Phil Weiser on the difficulty in creating a property regime in spectrum property.

This should have been a hard-hitting indictment of the “property school” and its belief (as advocated by such champions as Evan Kwerel) that a transition from the current “comand and control” allocation to a property rights regime offers a quick and easy way to get new spectrum services deployed, and we should therefore move as quickly as possible to adopt the “property” model instead of the “commons” model. (See my now old but still vaguely useful primer on the spectrum reform debate if you are wondering what these terms mean.)

Instead, it assumes that the benefits of a property regime are so obvious and well-proven that, regardless of the burden of devising a property regime, spectrum reformers need to “stay the course” and keep slogging ahead. After all, if we question the value of property rights in spectrum, the info commies win.

I happen to like both Dale and Phil and usually agree with what they write. In fact, I happen to agree with the central tenet of this paper: devising a true property-rights regime for spectrum raises more problems than advocates would like to believe. But I draw a rather different conclusion from their work. My conclusions (and a few trademark TotSF snarky observations on some of the hand-waving and rhetorical tricks used in the article) below.

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Tales of the Sausage Factory: Open Spectrum Doubters

A mailing list I’m on pointed to this rant by Chris Davies against open spectrum, and asked for a response after it was cited approvingly (if confusingly) by Corante. While I am tempted to respond simply by reference to the filksong by Brenda Sutton, I will attempt a more substantive answer below (although everyone really should buy Rite the First Time to hear that song and others).

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