This is a real gallery of big names; Terry Fisher is in the chair and Yochai Benkler and Tim Wu are speaking. Not only that, but sitting in front of me are Chris Marsden (the UK expert; see his work here)) and Motohiro Tsuchiya (the Japanese expert!), and Maria Gomez Rodriguez (completing a fantastic PhD on net neutrality in the EU; see an example here) is alongside us.

Benkler – This is a “story” – if you wanted competition as you moved from incumbents – you needed to allow to share their facilities, unbundle, etc – but the big question was what to do with cable. Would you have the same ‘open access’ approach? It certainly seemed like this was going to happen. But in the early years of the century, indications of a shift by the FCC from requiring this sort of competition on each wire (i.e. within cable) to competition between wires/modes (i.e. a cable connection v DSL). There are many policies that have been passed since then that need to be revised.

Do we need to look at infrastructure that is public? (municipal etc) Should we be focusing on user-owned infrastructure? (wireless mess, ‘create your own local loop’)? So you’ll have multiple pipelines – competition between genuine physical facilities?

Wu said that there are four issues :

1. Can service providers demand payment for access? The current position is that the customer pays the ISP and eBay pays the service provider but once you’re on, you’re on. Can an ISP apply fast lane / ‘payola’ / etc? In a telephony context, this is an ‘access fee’, which is a regulated price (i.e. long distance). Many of the proposals have some form of ban on charging.

2. What is ‘reasonable network management’? When can the carrier delay/block/”mess with” the connection between two parties for the purposes of managing bandwidth. Reads the FCC hearing at Harvard where unilateral approaches are not accepted in this domain.

3. If there is some sort of net neutrality norm, what is the form of this? Is it an ad hoc system whereby the FCC does something about things it doesn’t like? We are laying the groundwork for that right now. It would remain a concept that you’re not supposed to transgress. Hearings and threat, not rules and processes. This can be debated from the point of view of good administrative governance.

4. “Hollywood”. What side are the content industries on? In some ways, the studio is like eBay, in that they want to reach the users without difficulty. They don’t want to get engaged with another set of powerful gatekeepers. On the other hand, the idea of paying more for advantage, that’s the traditional way of doing things anyway. This year, there will be a struggle in the policy community for gaining the allegiance of this crowd…

Fisher – is mostly a consumer of the neutrality issue rather than an author. There seem to be six types of NN:

a – Content Neutrality
b – Application Neutrality
c – Sender Neutrality
d – Toll Free
e – Sustain Separation of the Layers of the Internet
f – Truth in Advertising

The argument then is allow discrimination vs curbing discrimination.

He now has a matrix of such on the screen but it’s moving far too fast to take down.

Opening for discussion now; hitting publish and, again as this is a parallel session, liveblogging the rest.


Benkler is critical of the 700MHz auction – there was an opportunity for genuine open access and it was missed. What the system is trying to do is to ensure that there are not too many changes.

Question – is there a need for prioritisation (first responders, telemedicine, etc) – Wu agrees, but suggests that private networks designed for specific purposes is the solution. This is already present through VPNs, to some extent. “The public internet should be kept a public place, as free from discrimination as possible”….there is an important issue over things like 911 but “don’t contaminate the public Internet”.

From the floor, Chris Marsden says that much of the practice is very little to do with the standard practices of regulators, it’s to do with things like privacy, spam, homeland security etc, and there’s very little communication between that and the traditional regulatory world.

In response to another question, Benkler ruminates on the idea of whether “cable” is different to “the Internet”. In response, Wu is drawing crazy clouds and arrows on the board, which I hope he’ll explain in a moment.

Susie Lindsay (who now works for Bell Canada, a very interesting player in the NN debate in Canada) talks about “good discrimination” (traffic shaping, etc). I think she accepts/acknowledges what Bell is doing, which has be the most straightforward statement of a complex issue. Full marks to her for explaining honestly and briefly the dilemna that they and others find themselves in. More coverage of this particular issue at Michael Geist’s blog.

Very provocative statement by Wu – compare with employment law, having competition alone does not mean that you need to abandon non-discrimination law in employment. And now he’s going to have a little go at the Chicago School.

This was a very, very enjoyable session, although I found the focus on the FCC and US law a little frustrating at times, as the issues here benefit not just from looking at international law (actions in one state have an impact in another, the enterprises are organised multinationally, does trade law count, etc) but also at comparative law. The NN debate will benefit from both.