Michael Geist wrote more on the subject of the TPR statements on Network Neutrality (see our views on what the TPR says about this in this link.) We also wrote about the concept of Network Neutrality versus Open Access and believe that much of the discussion confuses the two similar but distinct issues.
Open Access principles in the TPR report means that people should be able to reach any “publicly available” content and applications. The Report in no way suggests that this would be without additional fees.
Indeed, the report describes 3 types of issues:
- first, concerns arising as a result of anti-competitive conduct
- second, concerns arising as a result of business decisions taken in the context of normal commercial business practices
- third, concerns arising from decisions taken for non-commercial reasons.
The report suggests that the first issue can be dealt with using anti-competitive conduct mechanisms. The third issue:
… could include legitimate legal prohibitions, for example, national security, child pornography or other criminal concerns. Restrictions on access might also arise because of copyright. In such cases, the Panel believes that blocking access would be legitimate because the access provider would merely be implementing the law.
This seems to be suggesting that the panel agrees that there are some circumstances that justify restricted access to ‘publicly available’ content. However, “In general, the Panel believes that blocking access to content and applications should not be permitted unless legally required.”
Regarding the issue of business decisions – which I think is what most people are really up-tight about in Net Neutrality – the report seems to recognize the basic Milton Friedman economic principle “You don’t get nothin’ for nothin'”
Given the complexity of this area, the rapid evolution of technologies and the market dynamics, the Panel believes the regulator here should have more discretion than in other areas of regulation. However, the Panel also believes this discretion should be exercised with a view to encouraging reliance on market forces and customer choice as much as possible. For example, there may be situations in which a customer wants an ISP to block access to particular applications or content. In addition, some customers may be willing to accept a reduced degree of access in exchange for a lower price. Such consumer choices should be respected.
In the Panel’s view, the purpose of a customer access rule should be consumer protection, and there should be a strong emphasis on ensuring that customers have the information required to make informed choices. In this way, the rule would promote the efficient operation of market forces.
A Solomonic balance of interests, I think.