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CONTACT: Amy Smorodin
December 9, 2009
(202) 289-8928
Case for Net Neutrality Has Not Been Made
Esbin Offers Further Thoughts on Network Neutrality Debate

WASHINGTON D.C. - The case for regulating the Internet has not been made, explains Senior Fellow Barbara Esbin in "Net Neutrality:  A Further Take on the Debate," released today by The Progress & Freedom Foundation. Proposed rules mandating network neutrality are not in response to evidence of market failure or widespread consumer harm, could deter investment in broadband deployment, and raise First Amendment concerns.  The paper is a further reflection on a recent "Two Takes" print debate Esbin participated in for U.S. News and World Report.

In the paper, Esbin, Director of PFF's Center for Communications and Competition Policy, questions what problem proposed network neutrality rules aim to address in light of the lack of evidence of widespread consumer harm.  She specifically takes issue with regulatory advocates' assertions that the Internet has always been a "neutral" network and "we now suddenly cannot trust broadband network operators to discriminate in the handling of Internet traffic in socially beneficial ways, so we must outlaw their ability to do so at all."  Esbin explains that this vision of the Internet is flawed and there has always been prioritization of traffic.  Moreover, by requiring operators to request permission before changing the way they managed network traffic, such rules would "freeze in place today's Internet operations and business models," and "interfere with the organic change that has characterized the Internet ecosystem...  without a demonstration that such a radical reform is necessary."

Esbin also questions the need for economic regulation in absence of market failure.  Indeed, a 2007 Federal Trade Commission report found no evidence of failure in the broadband market and, Esbin explains, "Neither the FCC nor proponents of network neutrality regulation point to any significant changes in either market structure or provider behavior in the interim to support the conclusion that we are now at risk of the loss of Internet freedoms enjoyed by users."  Moreover, if broadband markets are not sufficiently competitive to adequately protect consumers, steps should be taken to improve competitiveness as opposed to regulating network management practices.  Additionally, financial analysts have warned that imposing regulatory constraints on ISPs would inhibit broadband investment, adversely affecting the deployment and upgrading of broadband networks.  Such regulation, accordingly, would work against the goals of the "National Broadband Plan" initiated by the American Reinvestment and Recovery Act.

Esbin also examines the idea of imposing network neutrality regulation to address "free speech" concerns.  Not only are there few documented instances of network operators interfering with content travelling over their networks, but the sheer volume of traffic on these networks makes it highly unlikely that companies would monitor and censor individual communications on a widespread basis.  Furthermore, protection against censorship by a private entity is does not fall under First Amendment protection.  In fact, Esbin argues, "This argument turns First Amendment protections on their head: network neutrality rules will constitute unacceptable interference with the protected speech and press rights of broadband ISPs."  A non-discrimination law requiring network operators to handle all content equally would be akin to forced speech directed by the government, which would likely violate the rights of operators as First Amendment speakers.

Esbin concludes that, despite arguments advanced by advocates of network neutrality regulation, "it is the FCC's intervention, rather than the actions of private providers, that will chill the vibrant free market that exists for Internet service today and that we will be the poorer for it."

"Net Neutrality:  A Further Take on the Debate," is available on the PFF website.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation