Net Neutrality and the Academics Who Love It



What Faulkner once said about the American South -- "The past isn't dead. It's not even past" -- is now true of tech and telecom policy as well.

The perennial Great Divide in tech policy is about the merits of applying existing regulatory models to the latest technology. The question of the moment is about whether and how government should regulate Internet broadband. And the debate is now roaming into lessons-from-history thanks to a fascinating new book, The Master Switch, by Professor Tim Wu of Columbia Law School.

The book is an economic and political history of communications technologies over the past century or so -- the rise and fall of telegraph, telephone, radio, film, and TV, and the ascendancy of the Internet. Against all odds, it is a ripping yarn -- stolen telegrams that may have tipped the presidential election of 1876, an anti-Semitic priest censoring decades of Hollywood films, and so forth.

But it is also a serious history with a strong view about the pernicious effect of monopolies and oligopolies in technology. Wu's organizing thesis is all forms of electronic communication follow a predictable, tragic arc. An existing giant's death knell sounds when a band of raggedy outsiders, with little to lose, discover or popularize a disruptive and radically better technology. They usher in a glorious, chaotic, and discombobulating period of decentralized innovation. But, eventually and inevitably, along comes a charismatic leader or business with an iron will to power that leads to total domination of the market (e.g., Western Union, Ma Bell, Google, Apple).

The rise of the despot may be good news for the people of the kingdom -- at first. Mussolini making the trains run on time and all that. But just as Early Elvis became Late Elvis, inevitably the powerful turn tyrannical, becoming enemies of innovation, focused chiefly on strangling the next disruptive technology in the crib.

If anyone ever tells you that ideas don't matter in Washington, just point them to the charmed trajectory of Professor Wu.

Wu marshals powerful historical evidence, but the lessons one draws from his book is the policy equivalent of a Rorschach Test. Already the Wall Street Journal has run not one but two reviews concluding that The Master Switch proves the need for Less Regulation. The Huffington Post, in contrast, has a piece concluding that the book proves the need for More.

Wu's own prescription -- described in the last 20 pages, after 300 pages of history told relatively straight -- is the so-called Separations Principle. This is the idea that information companies in the digital age must be required to stay in a single "horizontal" line of business. Either you create content (TV, movies, print), or organize content (search engines, social networking), or build devices to access content (phones, tablets), or deliver content (broadband). But please only one, thank you very much.

The reason, says Wu, is the same reason we have checks and balances in the Constitution. We can't have Apple (via the iPad, iPhone, and iTunes) or Google (via search) also controlling the content that we can read and watch. And Wu believes that this applies with particular force to the broadband companies like Verizon, AT&T, or Comcast, because Internet access is now the "last mile" pipe that carries all  modern communications.

Wu's vision has its strengths and weaknesses. A serious appraisal would take a second book nearly as long. But one thing is clear, namely that to Wall Street and many existing businesses it is heresy and treason. This is because nearly all of the nation's large information and technology companies are, in varying degrees, desperate to expand "vertically" -- into content, organization, devices, and delivery. Comcast buying NBC. Apple moving into music and video.

One way to understand the profound disconnect between Wall Street's vision and Wu's is as another in the many fights between town and gown. Skeptically, as an academic not subject to the discipline of meeting a payroll. Or, sympathetically, as a visionary free to pursue the public interest rather than an incumbent's bottom line.

Washington is of course the place where academic dreams of massively restructuring private industry often go to die. And Wu's vision doesn't go anywhere if government won't make it mandatory.

But counting his ideas dead on arrival would also be to ignore a more recent history. Wu and a group of closely aligned left academics have shown a genius for setting the agenda in Washington over the past decade -- although the jury is still out on how much they will actually get.

Indeed, if anyone ever tells you that ideas don't matter in Washington, just point them to the charmed trajectory of Professor Wu. He is a young, charismatic, motorcycle-riding legal academic, best known for coining the term "net neutrality." (Though, according to the New York Observer, he may be more famous on campus for making law students swoon.) Net Neutrality is the idea that there ought to be a law preventing broadband companies like Verizon, AT&T, and Comcast from improperly prioritizing certain Internet traffic (e.g., speeding up Hulu and not Youtube). A proto-Separations Principle of sorts.

Despite blistering opposition from broadband incumbents, the idea went from academic symposia to the Obama campaign platform in less than four years -- surely a record of some kind. (Much of the credit for popularizing the notion actually belongs to Professor Larry Lessig, who has shuttled among the Harvard, Stanford, and University of Chicago law faculties for the past two decades.) And just last week, the Chairman of the FCC announced his intent to implement rules making net neutrality the law of the land. (Full disclosure: I worked, until this summer, as a senior advisor to Chairman Genachowski and was involved in some of the earlier actions that led up to last week's decision.)

If this were not enough, the contribution that is actually most distinctively Wu's is the less euphonious concept of "wireless Carterfone." This is the idea that consumers -- not their cell phone company -- should be able to decide matters such as which software they want to download and whether to connect them to networks that can accept them.

Within a year of Wu's publishing this paper, the outlines of the idea were adopted by the previous, Republican chairman of the FCC for a swath of spectrum worth roughly $5 billion. And this was over the vociferous objections of the major wireless companies, who until then had been the chairman's leading supporters.

Wu is not alone in his opposition to the crossing of lanes in information industries -- or his desire to have government serve as traffic cop. He is one of perhaps half a dozen closely-allied academics on the law faculties of elite universities like Harvard, Yale, Michigan, and Stanford (at varying times) who share the same concerns and a critical but nevertheless firm belief in the need for a broad government role.

Inexplicably and disappointingly, there is little counterweight in the elite legal academy on the side against. A few high-profile academics, mostly on economics or engineering faculties, have written against Net Neutrality and related ideas. But they remain less effective and, apparently, less interested in making an impact in Washington.

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Bruce Gottlieb is general counsel for The Atlantic. He was formerly chief counsel with the Federal Communications Commission and a staff writer at Slate, where he originated the Explainer column.

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