Kernochan Center for Law, Media and the Arts
What follows is a basic guide to the policy divisions in the broadband debate that have emerged and some suggested areas of reconciliation. For simplicity sake I divide the argument to a debate between the openists and the deregulationists. The summary is critical. I fault the openists for being too prone to favor regulation without making clear the connection between ends and means. For example, too few openists have asked the degree to which the structural open access remedies pushed by independent service providers actually promote the openists' vision. Meanwhile, I fault the deregulationists two reasons. First, the deregulationists have overlooked the fact that limiting government, as they desire, sometimes requires government action. Remedies like network neutrality, for reasons I suggest, may be as important for control of government as it is of industry. I also fault the deregulationists for an exaggerated faith in industry decision-making. I suggest that some deregulationists have failed to familiarize themselves with the processes of industry decision-making before demanding deference to it. This is a particularly serious problem given an industry with a recent track record of terrible judgment and even outright fraud. One example is the demand by some deregulationists that deference is due to a so-called mart pipe vision, without analysis of whether that vision has any independent merit. The Article, finally, seeks to reconcile the two sides of the broadband debate and defends the network neutrality principle as a starting point. Deregulations and openists, while divided along many lines, share a common faith in innovation as the basis of economic growth. Both sides, in short, worship Joseph Schumpeter and his ideas of competitive, capitalistic innovation. Fidelity to this shared faith should mean mutual surrender of idealized models of either government or powerful private entities, respectively, in exchange for a shared cynicism. We should recognize that both government and the private sector have an unhappy record of blocking the new in favor of the old, and that such tendencies are likely to continue. I argue that neither deregulationists or openists should have reason to oppose Network Neutrality rules that create rights in users to use the applications or equipment of their choice. What both sides should want in an inevitable regulatory framework for broadband are rules that pre-commit both industry and government to open market entry. It must be remembered that rules creating rights in users also guarantee the right of operators to enter the application market, free of government hindrance. For these and other reasons discussed below, limited network neutrality rules should on reflection be attractive to both sides.
The Broadband Debate: A User's Guide,
Journal of Telecommunications and High Technology Law, Vol. 3, No. 69, 2004
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1328