Professor Barbara van Schewick on the Net Neutrality Debate

By TAP Staff Blogger

Posted on May 23, 2014


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Network neutrality has been in the news a lot lately. The latest flurry of debates has to do with Federal Communications Commission’s adoption of Chairman Tom Wheeler’s Notice of Proposed Rulemaking (NPRM) for new net neutrality rules. Over the next four months, the FCC will take public comment before voting on a final ruling.


To understand the key issues in Chairman Wheeler’s proposal, TAP turns to the expertise of Stanford law professor and Director of the Center for Internet and Society (CIS), Barbara van Schewick. Professor van Schewick has earned a reputation as a leading expert on the issue of network neutrality. Her research explores how changes in the architecture of computer networks affect the economic environment for innovation and competition on the Internet, and how the law should react to these changes. Her 2010 book on this topic, Internet Architecture and Innovation, received great critical acclaim.


The Key Issues


Reclassification

Chairman Wheeler’s proposal invites comments on whether broadband Internet service should continue to be classified under Section 706 of the Telecommunications Act or if it should be moved under Title II of the Communications Act, which would subject it to greater regulation.


From Professor van Schewick’s blog, “Evaluating the Chairman’s Revised Net Neutrality Proposal,” co-written with Stanford CIS fellow Morgan Weiland.

… in addition to focusing on Section 706 of the Telecommunications Act as a basis for new network neutrality rules, the upcoming Notice of Proposed Rulemaking (NPRM) will seriously explore a second option for adopting network neutrality rules—Title II of the Communications Act. This is a huge step in the right direction from the state of play three weeks ago—keeping reclassification “on the table” but out of the NPRM. This is what network neutrality proponents (including one of us) have been pushing for, so this is a big success.


But the devil is in the details. For example, to ensure that reclassification does not result in onerous regulation, the FCC should immediately forebear from applying Title II provisions that are not necessary to protect consumers. If the agency is serious about exploring all of the options, it needs to ask which rules it should forebear from, if it opts for reclassification.


From Professor van Schewick’s article, “The Case for Rebooting the Network Neutrality Debate” in The Atlantic.

As we—the public, policy makers, and regulators—think through the choice between limited network neutrality regulation under Section 706 of the Telecommunications Act and more comprehensive network neutrality rules under Title II of the Communications Act, we need to ask the right questions …


And while the Open Internet rules were not perfect, they were an important step in the right direction. As the D.C. Circuit’s decision and relevant precedent show, it is impossible to adopt the rules we need based on Section 706, if the rules are to be upheld in court. In contrast, if the FCC classifies ISPs as telecommunications service providers under Title II, it is not subject to the same limitations and can effectively protect network neutrality by prohibiting blocking, harmful discrimination, and pay-to-play access fees.


That’s what I think the FCC should do.


Pay-to-Play Access Fees

Chairman Wheeler has offered assurances that the FCC won’t allow Internet service providers (ISPs) to segregate traffic into fast and slow lanes; but he would allow them to strike deals in which content companies could pay for faster delivery of Web content to customers. Chairman Wheeler has emphasized that the FCC will scrutinize the deals to make sure that the broadband providers don’t unfairly put nonpaying companies’ content at a disadvantage.


From an interview with National Public Radio’s Marketplace, At Times, Netflix Movies Make Up a Third of Traffic.”

Marketplace: Netflix accounts for about a third of peak-period broadband traffic. So what does that mean for the net neutrality debate?


"I don't think it matters," says Barbara van Schewick, faculty director of the Center for Internet and Society at the Stanford Law School, "because under a good network neutrality regime, people pay for the bandwidth they use and it doesn't really matter where it comes from."


For example, think about the way we pay for electricity in the summer. A much larger portion of the energy we use is generated by air conditioners. "We don't say the electricity companies should be charging the air conditioning producers for the fact that they create all this demand for electricity," van Schewick says.


From Professor van Schewick’s blog, “Evaluating the Chairman’s Revised Net Neutrality Proposal,” co-written with Stanford CIS fellow Morgan Weiland.

Internet companies that pay so that their traffic is faster or is not counted against the bandwidth cap have a competitive advantage. This is one of the key policy problems with access fees. Simply improving the quality of the baseline service does not remove that problem, because the quality differential between paying and non-paying applications remains.


According to the Wall Street Journal, the rules will ensure that any paid prioritization deals do not “unfairly disadvantage” non-paying companies, and that large ISPs will have to offer the same terms to all interested applications, content, and services.


But the Chairman can’t deliver on this, because requiring ISPs to make the same terms available to everybody is impossible under Section 706. Forcing carriers to treat like entities alike is the essence of common carrier rules. To be upheld under Section 706, any rules need to “leave sufficient ‘room for individualized bargaining and discrimination in terms,’” or they will “run afoul of the statutory prohibitions on common carrier treatment.” (Verizon v. FCC, p. 61, citing Cellco, 700 F.3d at 548.)


More fundamentally, allowing access fees is the wrong policy choice. Users, entrepreneurs, and investors are concerned that allowing access fees will substantially harm application innovation and free speech—and they said as much over the past three weeks. Requiring ISPs to make any enhanced services available to every application that is interested—as the FCC Chairman proposes—will not solve these problems; only a ban on access fees will.


From Professor van Schewick’s article, “The Case for Rebooting the Network Neutrality Debate” in The Atlantic.

If large, established companies can pay ISPs so that their application loads faster or doesn’t count against users’ monthly bandwidth caps, entrepreneurs and start-ups that can’t pay will be unable to compete. This increases the level of investment needed to start a new application, killing the Internet version of the American dream. It also breaks our petri dish model: without the many low-cost innovators, our Internet innovation ecosystem will be significantly less vibrant and will produce fewer, less diverse, and lower-quality applications.


Allowing access fees will also make it more difficult for entrepreneurs to get outside funding. The current investment model for Internet applications is simple: Because the costs of innovation are so low, entrepreneurs don’t need outside funding before they can make their apps available to users. Only after an application has proven that it can attract users will venture capitalists invest the millions of dollars needed to turn the product into a viable business. This approach significantly reduces the likelihood that an investment will fail.


The uncertainty over access fees is already starting to have a chilling effect on innovation and investment. Entrepreneurs have told me that they are reconsidering their plans and that investors are more hesitant to invest in applications, content, or services that may become subject to access fees. Requiring ISPs to make any enhanced services available to every application that is interested—as the FCC Chairman proposes—will not solve these problems; only a ban on access fees will.


Entrepreneurs and other individual users are asking the FCC to adopt strong network neutrality rules—ones that ban blocking, discrimination against specific applications or classes of applications, and access fees—to preserve the Internet as we know it.


Summary

A final excerpt from Professor van Schewick’s blog, “Evaluating the Chairman’s Revised Net Neutrality Proposal,” co-written with Stanford CIS fellow Morgan Weiland.


If we want to protect the Internet as a platform for free speech, application innovation, and economic growth, we need to ban pay-to-play access fees and adopt a bright-line non-discrimination rule that bans discrimination against applications or classes of applications. Users, entrepreneurs, investors, and public interest groups have already moved the debate in the right direction, getting reclassification off the table and into the NPRM. If we want an open Internet and the rules necessary to preserve it, we have to continue to make our voices heard and work hard to educate and convince the FCC, the White House, and members of Congress. The future of the Internet depends on it.


Barbara van Schewick is Professor of Law at Stanford Law School, Helen L. Crocker Faculty Scholar, Associate Professor (by courtesy) of electrical engineering at Stanford’s Department of Electrical Engineering, and Faculty Director of Stanford Law School’s Center for Internet and Society.


In 2007, Professor van Schewick was one of three academics who, together with public interest groups, filed the petition that started the Federal Communications Commission’s (FCC) network neutrality inquiry into Comcast’s blocking of BitTorrent and other peer-to-peer protocols. She has testified on issues of Internet architecture and network neutrality before the FCC in en banc hearings and official workshops. Most recently, Professor van Schewick is noted and quoted extensively in FCC Chairman Tom Wheeler’s just released Notice of Proposed Rulemaking (NPRM) In the Matter of Protecting and Promoting the Open Internet.

 


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