Ohlhausen’s Technological Explanation of Net Neutrality Misguided, Say Technologists, Lawyers
FTC Commissioner Maureen Ohlhausen’s call for a free-market approach to net neutrality Friday didn’t surprise lawyers, advocates and technologists, but her technological rationale caught some off guard, they said in interviews. “This sort of came out of nowhere,” said Joe Hall, senior staff technologist at the Center for Democracy and Technology. During a speech on the FTC’s oversight role in the growing Internet of Things (CD Oct 21 p11), or IoT, Ohlhausen’s focus on the network traffic levels missed the point, said Hall and others. Other lawyers and free-market advocates supported Ohlhausen’s overall vision of the FTC taking a bigger role in overseeing net neutrality without further regulating the market.
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Ohlhausen cited five trends that “cut against the need for network neutrality rules and supports the idea that the free market should be left alone.” Of these trends, Free Press Policy Director Matt Wood took most issue with her focus on congestion, the concept that the IoT would clog networks. Ohlhausen said that IoT “will add to growing consumer demand as perhaps billions of devices are connected and communicating. This steep expansion of demand, along with the Internet’s interconnected architecture and the physical limits of our spectrum and other transmission resources, means congestion management likely will remain an issue for years to come.”
Not true, Wood said. Hall agreed. “She seemed to focus on congestion,” said Hall: “That’s entirely backwards. It’s more about the endpoints of the network” than the network itself. Most IoT devices -- a refrigerator sensor that tells the user when the milk is out, for example -- are not sending data over “larger wireless networks,” Hall said. They are communicating with an in-home Wi-Fi router. “I don’t think anyone is worried it’s unleashing a couple thousand Netflixes,” he said, referring to the streaming video service that has been estimated to eat up roughly one-third of all peak-time North American bandwidth.
Technologists and advocates agree with Ohlhausen that Internet capacity, speed and demand are growing, but disagreed with her on how to manage that growth. The growth of Internet capacity and Internet speed is “roughly matching demand,” Ohlhausen said, citing several FCC studies. “Free-market price setting should be the default mechanism to allocate resources and incentivize development of congestion solutions.” What the IoT market needs is an agency to create a level playing field for competition, not focus on congestion solutions, Wood said. That doesn’t “appear out of nowhere,” he said. The FTC’s “antitrust framework” is “designed to protect existing competition but not there to promote new competition,” said Wood. The FTC didn’t respond to requests for comment.
The FTC’s case-by-base approach to competitive harms is preferable, said Fletcher Heald lawyer Paul Feldman, who represents Internet carriers on net neutrality issues. Feldman was at Friday’s meeting when Ohlhausen spoke and said her opinion “makes sense.” Net neutrality rules can lead to noncompetitive pricing practices, he said. “There’s a real risk to innovation on the network side from what some people want to do with net neutrality rules,” he said. “One way that net neutrality rules can be used in a way that’s counterproductive is to manipulate the costs of service and for edge providers to shift their costs to network providers.” (cbennett@warren-news.com)