Network neutrality: A complex issue, then and now

[Commentary] Network Neutrality debates are fundamentally about switching – whether network switches can treat some packets differently from others. The telephone interconnection debates of the early 20th century – and, in particular, to AT&T’s preference for (non-neutral) manual switchboards over (neutral) automatic switches reminds us that design decisions in complex networks are rarely as simple as network neutrality proponents suggest they are – and that market forces, if given time to operate, can secure the consumer benefits that regulators aspire to promote without the appurtenant risk that regulatory intervention may stunt the market.

Up until 1919, AT&T doggedly refused to adopt automatic switching technologies. This history is an interesting precursor to the modern concept of network neutrality. Network neutrality presents much the same question: how to best provide switching to different types of services. Yet today, despite the market being more competitive and subject to more scrutiny than AT&T was 100 years ago, network neutrality proponents advocate regulatory control of switching – government edicts saying what switching technologies can and cannot be used (and therefore, can or cannot be further developed). And this despite little evidence that network neutrality poses anything more than hypothetical harms. The market has worked in the past – how about we give it a chance today, before deciding to regulate it? If things don’t work out, if the net-neutrality proponents’ parade of horribles does come to pass, regulatory intervention will still be an option. Until then, we should be cautious of the impulsive regulatory instinct: too-readily opting for regulation over the market is the sort of automatic switch we should avoid.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]