Bad personnel decisions have haunted the Bush Administration, and one
of the bigger disappointments is Federal Communications Commission
Chairman Kevin Martin. In his last months as Master of the Media
Universe, he seems poised to expand government regulation of the
Internet.
The FCC is by all accounts planning this week to uphold a complaint
against Comcast, the cable company accused of throttling attempts to
trade movies and other high-bandwidth files on its network that slow
down Internet service for everyone else. Comcast has maintained that
its "terms of service" agreement allowed such network-management. In
any case, earlier this year the cable company reached an agreement with
BitTorrent, the popular file-sharing service being used on Comcast's
network, and settled the matter. Or so we thought.
But Mr. Martin isn't satisfied with a private resolution of this
technical dispute. Instead, he wants to make an example of Comcast in
order to advance a "network neutrality" industrial policy being pushed
by high-tech rivals like Google and pro-regulation advocacy groups like
MoveOn.org, Consumers Union and Free Press. Net neutrality proponents
want all Internet traffic treated "equally." They would prohibit
Internet service providers from using price to address the ever-growing
popularity of streaming video and other bandwidth-intensive programs
that cause bottlenecks.
"I'm pleased that a majority has agreed that the commission both has
the authority to and in fact will stop broadband service providers when
they block or interfere with subscribers' access," said Mr. Martin
earlier this week. By "majority" he means himself and the two Democrats
on the five-member panel. To that regulatory end, he would force
Comcast to change its network management model to his liking.
To the extent that Comcast and BitTorrent have worked out their
differences, Mr. Martin is forcing a solution in search of a problem.
But the bigger concern is that the chairman is taking a huge step
toward putting in place a regulatory regime that would give the FCC,
rather than Internet service providers, unprecedented control over how
consumers use the Web. Mr. Martin is also greasing the skids for a
potential Barack Obama Administration to take an Internet industrial
policy who knows where.
It's also not clear that the FCC even has the authority to enforce net
neutrality, because Congress has never passed a law establishing such a
policy. Mr. Martin claims that Comcast has violated a "set of
principles" adopted by the commission in 2005. But whether a nonbinding
policy statement gives five -- or even just three -- unelected
regulators in Washington control of the Internet might be something for
a court to decide.
Those who would use Comcast's actions to argue for more Internet
regulation have misidentified the Big Brother problem. It's not the
private sector they should be worried about. There's no evidence that
Comcast was trying to suppress a political view or favor one of its own
services. By all appearances, the company's policies were motivated by
nothing more than making sure a tiny percentage of bandwidth hogs
didn't slow down Internet traffic for everyone else on the network.
Giving the government more say in network management, by contrast,
introduces all kinds of potential for political mischief. Net
neutrality is a slippery slope toward interventions of all kinds -- not
merely over access but ultimately over content. Naturally, the most
powerful lobbies will have the largest sway. Mr. Martin's decision in
this case may well be driven by his own political hostility to Comcast
and the cable industry for resisting some of his other policy
priorities.
Mr. Martin's bad instincts notwithstanding, the FCC's job is not to
determine business models in the private sector. The community of
Internet service and content providers has proven itself more than able
to work out problems on its own as Web use has exploded. If there are
bottlenecks in the future, some providers might choose to block
file-sharing services at certain hours of the day. Others might opt for
some kind of metered or tiered pricing. Banning these options will only
reduce incentives to upgrade networks and launch new services.
Regulators would do better to focus on keeping the overall telecom
marketplace competitive. If Comcast customers don't like the company's
network management policies, they're free to take their business to
Verizon, or AT&T, or some other Internet service provider. A World
Wide Web run by Kevin Martin and his political friends will leave us
with poorer quality and fewer options all around.
