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Net Neutrality? Much Ado or Nothing To Do?

Here is how Wikipedia (as of January 4, 2011) defines “Network neutrality”:

“Network neutrality (also net neutrality, Internet neutrality) is a buzzword used to describe a principle proposed for users’ access to networks participating in the Internet. The principle advocates no restrictions by Internet service providers and governments on content, sites, platforms, the kinds of equipment that may be attached, and the modes of communication.” The Wikipedia article, which goes on for pages, and with more than 100 footnotes and citations, then says, “The principle states that if a given user pays for a certain level of Internet access, and another user pays for the same level of access, then the two users should be able to connect to each other at the subscribed level of access.”

Now I confess. Lawyers are often accused of writing 1000 word manifestos and calling them “briefs,” but I have read and re-read the definition and the ensuing pages of “clarification.” I’ve paid attention in the media and to learned articles. I have no clue what “net neutrality” means. I do take comfort in the fact that if you read the Wikipedia article, and dozens, if not hundreds of other articles, you will see that nobody really has a well-defined meaning of what “net neutrality” is.
But good news. I think I know why all of this confusion exists. It’s actually pretty simple. Take the words apart. When you think of the Internet and World Wide Web – references now include wireless and mobile as part of this amorphous, nebulous cloud (oops, another buzzword) – it’s simply hard to define. It is dynamically evolving. It has features, functions and uses that morph almost daily. The devices change. The transmissions change. “Internet” has different meanings for different people, from different perspectives, at different points in time, and even the names and categories of parties injecting themselves into the debate are changing.

Then there’s “neutrality.” What does that mean? Switzerland is neutral. Is it? Everybody on board? Any questions? Good. We all know what that means – especially when referring to the Internet. Right? Technology? Economics? Pricing? Access? Shall we go on? I think not. Perhaps government regulators use the term “neutrality” because it is a term often applied to conflict – wars. Perhaps there is a war going on. A turf war over which government agency gets to control what and who and where and when – not to mention who wants to tax it. Darn, I promised not to mention taxes.

In recent years, the FCC has sought to take the lead in being an advocate for “net neutrality,” despite having its share of difficulties with the courts. Undeterred, in December, the FCC released a new report proposing “net neutrality” – a proposal to regulate the Internet. [See, e.g., cnet news article FCC makes Net neutrality rules official at http://news.cnet.com/8301-30686_3- 20026283-266.html] Remember how easy it is to define the Internet? The vote was hardly unanimous: 3–2. Have you read the FCC document? Almost 200 pages. The legal standard for regulation: “reasonableness.”

Now I confess again that I did start to salivate reading the report. Think about it. We are lawyers. Who wants certainty? Think of all the litigation and dispute, the angst, the risk memoranda, and the frantic consultations that might be avoided if there was certainty. No, no, who am I to call for clarity.

The discussion reminds me of a wryly humorous tale of an architect, engineer and lawyer, all debating what profession the Lord would have chosen. The architect extols the talent necessary to envision and lay out detailed plans for the creation of heavens and earth and everything within – surely a task for an architectural genius. “Nay,” cries the engineer. The greatest master builder that ever was and ever will be. “Who else could possibly build such glorious work? Who else could bring such magnificent order out of such utter and sheer chaos?” exclaims the engineer. Quietly the lawyer looks up and whispers, “First and foremost, the Lord would have been a lawyer.” Quizzically, the two peer over at the attorney for an explanation. The lawyer lowers the reading glasses and whispers, “Who else could have created such utter and sheer chaos?”

So I’m risking my own self-interest to say, please, FCC Chairman Genachowski and all the others at the FTC, the Department of Commerce – I’m not even going to go overseas for this one. Please end the meaningless war over what, who, why, how, where and when the Internet needs to be controlled in order for it be “neutral.” Stop! Nobody knows what you mean or what it means. Change words. Change focus.

How about “net vitality”? Worry about innovation. Encourage competition. Stimulate commercial robustness. Protect the helpless, the vulnerable – intervene where you must, no argument. But IMHO, in this case, less is more. Bayless Manning, former Dean of Stanford Law School and past president of the Council of Foreign Relations (although in a different context), summed up the problem best when he noted, “As batting averages are to baseball players, stars to restaurants, ribbons to generals and stock price to corporate executives, so new statutes are at the heart of the scorekeeping system by which legislators are measured and measure themselves. No legislator ever gained renown as a great non-law giver.”

Perhaps this too can change.

Joseph Rosenbaum, We Expert

Joseph I. (“Joe”) Rosenbaum is a partner in the New York office of Reed Smith, global chair of its Advertising Technology & Media law group and the editor, publisher and often author of posts on his blog Legal Bytes, which he has authored and published, first in hard copy and then in blog form, since 1996.

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