Why Would Antitrust Law Need A Specific Net Neutrality Clause?

from the if-it's-antitrust,-doesn't-that-law-already-exist? dept

Tue, Mar 18th 2008 1:48am — Mike Masnick

We've made it clear from the beginning that the whole debate over net neutrality is really a red herring. It's really an issue about the lack of competition in the broadband space, which can mostly be chalked up to bad regulatory policy that severely limited competition in most markets. If there were serious competition in the market, there would be no worries about net neutrality, as competition would make sure that there were "neutral" options available. Regulating one way or the other on net neutrality is treating the symptom, not the disease. However, Rep. John Conyers is preparing to introduce legislation that would apparently make breaking neutrality an antitrust violation. This isn't a new idea. Conyers has pushed similar legislation in the past.

However, why would there need to be special antitrust legislation on net neutrality? If getting rid of net neutrality breaks antitrust laws, then shouldn't it break them as is? Why would you need to add a special section just to cover net neutrality? In fact, in the past, Google has threatened to use existing antitrust legislation against telcos that break neutrality. No matter what, though, any attempt to legislate neutrality runs a serious risk of how it defines neutrality. It seems like time might be better spent taking a step back and looking at fixing the real problem: the lack of competition and watching the whole question of net neutrality fade away as a result.

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Filed Under: antitrust, congress, net neutrality

13 Comments

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Xanius, 18 Mar 2008 @ 3:00am

The answer is in the google threat.
The way I see it is if they put a special clause about neutrality in anti-trust law then they can define it very strictly to make sure the cable companies and telcos can break neutrality in a technical sense but not a legal one.

That way it looks like they are doing something for the people but are actually doing something to line their pockets with "Campaign funding". I don't think all of them would support it for this reason but I'm pretty sure you could count the number of senators that are tech savvy enough to really understand what net neutrality is on one hand.
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Anonymous Coward, 18 Mar 2008 @ 3:37am

"However, why would there need to be special antitrust legislation on net neutrality? If getting rid of net neutrality breaks antitrust laws, then shouldn't it break them as is? Why would you need to add a special section just to cover net neutrality?"

Because it would make it easier to apply the law.
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Anonymous Coward, 18 Mar 2008 @ 3:37am

Easier
"However, why would there need to be special antitrust legislation on net neutrality? If getting rid of net neutrality breaks antitrust laws, then shouldn't it break them as is? Why would you need to add a special section just to cover net neutrality?"

Because it would make it easier to apply the law.
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Stefano Quintarelli, 18 Mar 2008 @ 4:23am

How to increase competition ?
I agree that NN is a sympton, not the problem.
In certain cases, the problems cannot be cured and you have to mage the symptoms.

Saying "let's increase competition" without saying how, IMHO, leads us to the risk of not having a treatment for the disease not for the symptom.

How many alternative infrastructures do you need to have competition ? How many network hookups shoud one have @home ?

In Italy we have 2 mobile operators with >80% market share that charge internet traffic different prices: if you connect to one of their partners sites, you pay far less than if you connect to a non partner. (Techdirt is a non-partner, fyi). With HSDPA and HSUPA technology available people are increasingly moving to wireless mobile internet access.

There's nothing wrong based on antitrust principls, as the trustbusters have found no cartel, no joint dominance, an neither has >50% market share.

I agree that
- If you have competition
- then you don't need NN rules.

but telcos are a natural monopoly and with the present market structure of vertically integrated operators, I strongly believe there cannot be competition. (how many roads can you choose to reach your home ?)

are you ready for a publicily owned infrastructure ? If not, then you need to regulate it.
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- ShaggyDoo, 18 Mar 2008 @ 6:06am
  
  Re: How to increase competition ?
  "
  I agree that
  - If you have competition
  - then you don't need NN rules."
  
  Up here in Canada, there is competition in the market, depending on the city. Recently there was an application for the CRTC (canadian FTC). Videotron wants to triple bill for the service that it provides. Just like in the states, in order to ensure nothing bad happens, they want to charge you to ensure that the content is being transmitted properly.
  
  The other issue is also how Rogers has messed with the internet. By plopping their pages on top of Googles homepage.
  
  How about the Britsh plan to monitor everything in order to serve you ads? Is that not also infringing upon the ad-scheme of the website owner? Maybe he wanted the site to be ad-free. What then??
  
  I think the only issue that they happen to have right is as long as there is more then 4 isp's in one city, they consider it competiive.
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  - Anonymous Coward, 18 Mar 2008 @ 8:08am
    
    Re: Re: How to increase competition ?
    The CRTC is Canadian version of the Federal Communications Commission, not the Federal Trade Commission.
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- Mike (profile), 18 Mar 2008 @ 4:12pm
  
  Re: How to increase competition ?
  but telcos are a natural monopoly and with the present market structure of vertically integrated operators, I strongly believe there cannot be competition. (how many roads can you choose to reach your home ?)
  
  Telcos are a natural monopoly in part because of the technology that's available today, requiring the granting of rights of way to the telcos from the gov't. As such, it seems reasonable to say that there should then be competition *on* the resulting network, as the only reason the network exists was due to the public grant of rights of way.
  
  Future technologies (wireless tech for example) may not require the same rights of way, and thus may not need the same competition within the network and can potentially compete between networks.
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  - Anonymous Coward, 18 Mar 2008 @ 5:27pm
    
    Re: Re: How to increase competition ?
    Future technologies (wireless tech for example) may not require the same rights of way, and thus may not need the same competition within the network and can potentially compete between networks.
    
    Not the same rights of way but other ones none the less. Rights of way on the public airwaves. The government calls it "bandwidth" and auctions it off to the highest bidder these days. The winners can then use it to keep the competition at bay. This is despite there being no technical reason that bandwidth has to be allocated like that any more. I'm an RF communications engineer so I feel comfortable making that statement.
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Wolf, 18 Mar 2008 @ 6:08am

One thing that many people forget, is that the infrastructure was paid for with the public's money. First was the phone co., then followed by the cable companies. I remember hearing this argument in the public sphere years ago with the newest telco consolidations. I have yet to hear it regarding the cable companies. Perhaps it was discredited, and I missed it?
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comboman, 18 Mar 2008 @ 7:14am

Rep. John Conyers is preparing to introduce legislation that would apparently make breaking neutrality an antitrust violation.

I believe his name is John Connor, and he's always trying to break up Skynet. ;-)
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- Anonymous Coward, 18 Mar 2008 @ 7:19am
  
  Re:
  I believe his name is John Connor, and he's always trying to break up Skynet. ;-)
  
  His children, and children's children will be proud of this effort of trying to save the human race.
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Mike Weisman, 18 Mar 2008 @ 1:42pm

because yer not a lawyer
However, why would there need to be special antitrust legislation on net neutrality? Because there is no antitrust jurisdiction in the telecom sphere after the US Supreme Court removed it in the Trinko case. That's why... All Conyers is trying to do is put it back in there. I've been reading these screeds about NN on TechDirt for the last few months. I would love to see us emulate the EU, or even Canada. But we can't until we put antitrust BACK into the telecom/broadband/Internet space.
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another mike, 19 Mar 2008 @ 2:34pm

it is about lack of competition
Our local cable internet provider has a typical local monopoly on cable service. The city wanted to terminate the contract because of the provider's poor service. They promised the city that if they renewed the monopoly, the cable provider would roll out their new 4G network here first. The city caved and renewed the monopoly. And that shiny new network? Three years on and it doesn't exist anywhere, much less here where they promised it.
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