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Forward-Thinking Remedies

Just a year ago, I gave a talk at David Isenberg’s 2005 Freedom to Connect conference. I said, essentially, that we should be careful in asking for regulation to protect the net, because the power to protect carries with it the power to constrain. This was a very troubling message for the audience, and the chatroom projected behind me went wild with disapproval. Since then, I’ve become very concerned about the concentration in broadband service provision in this country, and worried that there won’t be any competition for unfettered internet access. We clearly need better empirical evidence of what’s actually going on, but the risk is that even now investments aren’t flowing into new applications that will produce enormous secondary value for us. Because those applications may need unfettered bandwidth and won’t be able to pay for prioritization, venture capitalists won’t fund them. I’m also concerned about the future of the internet ecosystem, and the path dependencies that will be created by the network providers’ plans.

The report of this year’s Isenberg conference includes this summary of a debate between Tim Wu and Martin Geddes, who squared off about “network neutrality.” Martin makes some good points—particularly about not wanting the FCC to try to design the internet. And Michael Powell has weighed in sowing doubts about regulatory intervention.

It’s a hard problem. The latest Barton bill is being marked up today and may end up resolving things in the telcos’ favor, according to rumor.

As I’ve said in the past, we need better empirical evidence—both CAIDA-style and antitrust-style—about the state of the broadband marketplace in the U.S. today. Until we have that, it’s hard to say how the net is being harmed or what we should do about it.

How about this: let’s create a Draconian set of escalating remedies (injunctions, escalating damages, structural separation mandates) and write them down in careful detail. Let’s say that unless the network providers show over the next two years that they are not, in fact, illegitimately shaping network management in order to favor their own business plans, these remedies will be put in place—two years from now. This delayed-action regulation might be easier to push through, and might just make the providers toe the line. If they do, we’ll all be rewarded by solidified consumer expectations of an unfettered, blazing-fast internet for everyone.

By Susan Crawford, Professor, Cardozo Law School in New York City

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