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SALT LAKE CITY -- Net Neutrality is a ruse and, as a term of art, confuses the debate regarding the regulation of Internet access. On one hand, proponents of Net Neutrality say that the ISPs do not have the right to discriminate against traffic. On the other hand, Net Neutrality policy also assumes that the ISPs are not common carriers.
So what exactly is a common carrier and why is this distinction important?
A common carrier is an entity that puts its property out for public hire for transportation. A familiar example of a common carrier is a taxi cab. The cab runs on public roads and the driver promotes the cab for hire to people who need a ride. Similar examples can be seen in freight companies, railroads, airlines and grain silos.
In Munn v. Illinois (94 US 113, 1877) the U.S. Supreme Court considered the role of the common carrier. The decision concerned a group of men who operated a set of grain silos conveniently located between a lake and a railroad. The most important point of the case revolved around the police power, the power of regulation.
The court ruled that when a business puts its private property out for public hire, they create a public interest that is subject to regulation by the police power. That activity brings a transportation business within the meaning of the term, common carrier.
Net Neutrality as a policy, seeks to require ISPs to carry network traffic without discrimination. The term arises from the observation that content providers who own "the last mile" to the home, tend to favor their own content. Net Neutrality assumes that an entirely new framework of regulation is required to force ISPs to act like common carriers without consideration of any change in the classification of ISPs.
The Internet is a worldwide network of servers using a set of common cables and open standards known as protocols, as rules for communication. It is, effectively, one public network for the world. As such, it is not practical to build another Internet alongside the network we already have. Because people depend upon the one and only Internet as a public network, a public interest in the Internet is created that is subject to regulation.
Since 2002, the Federal Communications Commission has classified "Internet Service Providers" as "information services," not "communication service providers." The distinction is important. Communications service providers are common carriers, information service providers are not.
For example, an owner of fiber that carries data traffic over a public network is a common carrier. A business that "hires" that fiber to send its own data, is not. Level 3 Communications owns a good chunk of the physical Internet in the United States, while eBay does not. Level 3 provides communications services, and eBay provides information services.
Yet, almost all of the debate has centered around whether or not ISPs like Comcast and AT&T must adhere to Net Neutrality principles without any mention of whether or not they are common carriers as ISPs. This is the hole in the debate.
Japan offers an instructive example of the benefits of an open access network. Nippon Telegraph and Telephone (NTT) is the largest phone service provider in Japan. NTT is also the largest Internet access provider in Japan. The Japanese government has a partnership with NTT: NTT builds and maintains the network, the government finances it. NTT gets to sell Internet access, but they must resell access to their facilities to competitors at wholesale. Japan now has thousands of ISPs reselling Internet access, all competing against each other.
Even as early as 2007, in Japan the average advertised speed was 90 Mbs and the average monthly fee was $35 a month. Compare that to a current offering by Comcast of 50 Mbs for $99 a month.
The alarming disparities in pricing and speed of Internet access between the U.S. and other developed countries is a direct result of the improper classification of the last mile to the home. Classifying the last mile to the home as common carriers will bring about greater competition, lower prices and higher speeds.
Scott Dunn is an IT professional and writer living in the Salt Lake City area. As an IT professional, Scott works with Windows and Linux. At home, he uses Linux exclusively - on his desktop, laptop, phones and even his Nook.