The FCC Needs to Do the Hard Thing Because it's What's Right

[Commentary] Network neutrality is actually a very old idea. The idea is that when you're making point-to-point basic transportation (of information or people) available to the public, you're not supposed to discriminate against uses of your network.

We've had this idea for lots of networks, including the telephone, the telegraph, the electrical grid, and the railroads. These networks provide basic inputs that are so important for economic growth and creativity that it would harm society to allow private network owners to pick winners and losers, charging one user more than another for the same basic transport service. This old idea has a old response: distribution networks that should, by rights, be constrained from discriminating often seize the chance to act in cahoots with particularly valuable shippers to make better profits. They can do this when they don't face much competition. This is good for the two in cahoots but bad for the rest of us.

The Verizon-Google legislative proposal released this week would, if enshrined in legislation, allow network operators to provide exclusive-deal services over their Internet Protocol pipe that would compete directly with other online applications and raise their costs of doing business, just like our railroad-and-shipper example. A carrier could, say, partner with a cable channel to provide Video on Demand services to its subscribers. That would allow the cable channel to raise the "shipping" prices of rival online video distributors, because in order to reach audiences in a similarly technologically advanced way, the rival online distributor would have to also make a deal with the carrier: a deal that might not be available, or might be too expensive for a start-up. The companies are saying "don't worry, that's not the Internet." But it will certainly appear to be the Internet to the rest of us, and we'll give up on the slow-lane services that aren't satisfying. The companies are also leaving wireless out of any nondiscrimination promises, which most of us also thought of as an access route to the Internet, and the nondiscrimination regime they've proposed for wired access is pretty weak.

[Susan Crawford is a member of the faculty of Cardozo Law School]