Voice-Over-IP's Unlikely Hero
On his way out, Michael Powell defends four fundamental freedoms of the Net.
By Lawrence Lessig
The first shot in the Internet's most important war was fired this March. Almost faster than a speeding bullet, the FCC stopped Madison River, a DSL service provider for the Southeast and Midwest, from denying its customers use of Vonage's voice-over-IP service. Vonage had given the FCC evidence that Madison was blocking access to critical ports - a breach of network neutrality. In his final days as the commission's chair, Michael Powell ordered his enforcement department to move quickly. Without hearings or the involvement of any other commissioner, Madison was charged with violating a nondiscrimination principle the FCC found buried within federal statutes. The company backed down. And thus, with a single surgical strike, the first proven case of a broadband provider violating the principle of network neutrality was over.
VoIP is emerging as the Internet's newest "killer app" - one that not only explodes demand for broadband but effectively renders obsolete its major competitor, plain old telephone service. The last such killer app - the original Napster - didn't fare as well with federal regulators. In that case, courts were quick to protect the music industry from a business that wanted a free ride on the labels' investment. This time, regulators sided with the free riders, Vonage and other VoIP upstarts. AT&T didn't have a lobbyist like Jack Valenti to convince us that its monopoly was just "property." So regulators happily embraced new technologies that lowered the cost of telephone service, whatever the cost to telcos.
Of course, many people had thought they'd never see the day that Powell would actually defend network freedom. When he warned providers everywhere that their violation would incur his wrath, they said the threat was hollow. Powell proved them wrong. There was neither wavering nor further warning. There was simply enforcement of this pro-innovation principle.
Yet it's too soon to say that the Internet has been made safe for network competition. Now that Powell is gone (and Kevin Martin has been appointed chair), it's important to note that the nondiscrimination principle in telecommunications law that Powell acted upon applies to telcos, not cable companies. Had Madison River been Madison Cable, Powell's pistol would never have left its holster. Powell was lucky; the principle of network neutrality was lucky. But luck alone won't win this war.
Powell was a controversial leader. He didn't back away from unpopular positions or spend his time gauging how popular his positions would be within the industries he regulated. I'm not a fan of everything he did, but I am a fan of this action. And because strength of character in Washington deserves special kudos, Congress should reward this by embedding Powell's insights into the fundamental laws governing the Internet.
Call it the Powell Doctrine and let it be embodied at the same level of generality that he outlined more than a year ago. Internet service providers must guarantee their customers four freedoms: (1) the freedom to access legal content; (2) the freedom to use the legal applications of their choice; (3) the freedom to attach personal devices; and (4) the freedom to obtain meaningful service plan information. These freedoms together produce a kind of network neutrality. ISPs that violate this neutrality should do so at their peril.
Powell's aim was to use his threat to steer businesses away from activities that corrupt the core values of neutrality built into the Internet. But that threat now needs a more reliable defense. While the crudest techniques, such as port-blocking, may be gone, plenty of more-subtle techniques could be adopted by an ISP to tilt the network to its advantage. And again, if that ISP is a cable company, the risk under the current regime is negligible.
This administration has done little to push broadband in the US. Its attention has understandably been elsewhere. But we could forgive its neglect if it made permanent the insight that the former FCC chair made real: The competition that works best to inspire innovation is competition to provide better service - not competition to find clever ways to sabotage the business of competitors.
Email Lawrence Lessig at firstname.lastname@example.org.