Imagine for a moment my local school board is considering a measure to fight childhood obesity by banning “unhealthy” food and requiring that school vending machines only provide “healthy snacks.” Now suppose I am a vendor of things such as nacho flavor chips, cheese doodle equivalents, and other foods of a similar nature. Expecting that such a rule would make it more difficult for me to sell my products, I raise my hand at the school board meeting and engage in the following line of argument.
“Are oranges healthy food?”
“Yes,” the relevant official replies.
“Are carrots healthy food?”
“So all things orange, like carrots and oranges, are healthy foods. Good.” Whereupon I sit down.
Subsequently, I try to sell my nacho chips and cheese doodle equivalents to schools. When informed they are not “healthy snacks,” I become quite upset. I invoke the “Rule of Orange Things” that declares that we need to treat all orange things fairly by treating them the same, so we either have to let me sell nacho chips or ban people bringing oranges and carrots. I will also complain that there is no way I could possibly have known that nachos and cheese doodles might not be “healthy food,” since they have an FDA mandated nutrition label (so they must have nutrition) and who the heck knows what “healthy food” means anyway, since we can see that many nutritionists are now down on juice and even on certain fruits or other foods long considered healthy alternatives to cookies and sugar sodas.
In such a situation, most of us would have no problem saying that nacho chips and cheese doodle equivalents are not “healthy food” despite being orange — because what makes oranges and carrots “healthy food” has nothing to do with their color. Most of us would also agree that while their may be some marginal cases around things like apple juice v. water v. soda, there is no definition of “healthy snacks” in use outside the junk food biz that would include nacho chips and cheese doodles — mandatory “nutrition label” notwithstanding.
Which brings us to the National Cable Telecommunications Association (NCTA) filing last Thursday just at the close of the bell in the Comcast/BitTorrent complaint docket (because the FCC issued a public notice for the meeting at which it will decide the complaint, the docket is now closed).
A bit more below . . .
NCTA’s filing is a classic example of argument by the “Rule of Orange Things.” NCTA has done a survey of the top ranked schools as rated by U.S. News and World Report and claims these practices are “far more restrictive” than what Comcast does and that the FCC must immediately start prosecuting colleges and universities if it finds for Free Press. “If there is to be regulation, it must apply equally to all providers.” Or, if oranges and carrots are healthy snacks, then all things orange must be healthy snacks. How unfair, what a terrible violation of due process, if nacho chips and cheese doodles were denied their substantive due process rights, while foods with orange in their very name, like oranges and orange juice, are treated as healthy food! Oh, the humanity!
This last minute combination scare tactic/red herring fails because (a) the practices in question are not in any way similar to what Comcast does, despite quoting a few phrases from a university policy they expect folks won’t read ; and (b) Universities are not “providers.” Ars Technica has already done a thorough debunking of NCTA’s claims. In addition, EDUCAUSE, which represents colleges and universities on tech issues, managed to get in this reply just as the whistle blew and the record closed. Briefly, even a surface examination of the facts and the law cited by NCTA show that NCTA is merely engaging in a last minute scare tactic. Not only are college and university networks and other “private networks” legally different from Comcast and other “public networks” (in the sense of serving the general public, not in the sense of publicly owned), but the policies NCTA points to generally have to do with equipment or employment policies and not “network management.” Sure, colleges and universities provide access for a lot of people, their students and employees. They may also provide service (by accident or design) to others. This no more makes universities “providers” like Comcast than my letting my visiting relatives use my broadband access makes me a provider. As the EDUCAUSE folks point out, there is a fairly substantial amount of case law and FCC ruling on this point, so NCTA knows it is full of baloney here.
To put it another way, most of us generally don’t have a problem with an employer (a “private network”) having a policy about no personal calls on company equipment on company time. But we would have a very big problem if the phone company (a “public network”) decided to monitor your calls and blocked any call where you discussed your job because you are only paying for a “residential” rather than “commercial” line. We do not generally have a problem with a company insisting that it employees work in Word or other standardized format. We would have a big problem if the phone company decided it would not allow people to speak on the phone except in English. And we would have no problem distinguishing between these two forms of “network management.”
The cable guys have a passion for the Rule of Orange Things. Combined with a lot of other technobable and econobabble, and repeatedly loudly enough and often enough, it can be a most effective tool. I spend a lot of my time at the FCC debunking various Rule of Orange Things arguments. Mind, I recognize that it is not always as clear cut as proving oranges aren’t nachos. Everyone’s favorite case to argue about, whether ISPs should be allowed to let third parties pay for “premium” delivery of their content or applications, is clearly a more difficult question under the current articulation of the FCC’s principles. (Does “neutral” in the policy statement mean “not conferring an advantage” or merely not “willfully blocking or degrading?”)
But this case does not present so nuanced an issue. NCTA knows what it is doing when it compares college and university networks to Comcast, just as our hypothetical vendor understands why comparing nacho chips and cheese doodle equivalents to oranges and carrots is nonsense. The argument works more effectively here because while the average person has plenty of experience with oranges, a carrots, nacho chips and a cheese doodle equivalents, most folks haven’t actually looked up the college and university policies in question or understand the difference between public networks an private networks. Also, like the kids who would like to believe the Rule of Orange Things because they would love it if nacho chips were healthy snacks, you will find plenty of folks in policy land who disagree with the result and therefore gratefully embrace Rule of Orange Things arguments with the same fervor as a Kansas school board embracing creationism as a legitimate alternate scientific view. Mind you, it is perfectly possible to make an argument against enforcement here without such ridiculous arguments (for example, Richard Bennett articulates his argument in this last minute filing without falling back on any bogus comparisons). But the cable guys know there is always a core of willing believers happy to accept such surface plausibility or folks genuinely confused by their unfamiliarity with the technology or law.
Me, I have a weakness for nacho chips. But I don’t pretend they are a healthy food.
Stay tuned . . . .