On May 15 the FCC announced a proposed rule that would govern the relationship between content providers and internet service providers.  Consumer groups argued the proposed rule was not strong enough because it did not ban differential arrangements between them.

The underlying economic issues are several.  Should the government concern itself with the relationship between the “creators” of things and the “transporters” of them?  In particular should economic profits go just to the creators of things?  Is it “wrong” for the transporters to extract some as well?  What if a creator of content and a transporter want to vertically integrate or enter into a long-term contract to end the costly dispute between them over the division of any economic profits?  Should such arrangements be forbidden because of the possibility such an entity would refuse to transport the content of a different creator?

These issues are not new.  In fact they first arose between railroads and the creators of “content” i.e. farmers, mines, steel mills etc. in the 19th century.  The political resolution of these issues was the Interstate Commerce Act of 1887.  It took about one hundred years for the experiment in transportation common carrier rate regulation to end.  Scholars have concluded that rate regulation raised rather than lowered transportation prices.  And the public has come to the same conclusion because in the quarter century since the end of transportation rate regulation, prices have decreased dramatically.  For a discussion of the rise and fall of transportation regulation see this article by Thomas Gale Moore.

In “Antecedents to Net Neutrality” Bruce Owen explicitly makes the link between the concerns of traditional transportation common carrier regulation and the contemporary notion of “Internet neutrality.”  Net neutrality policies could be implemented only through detailed price regulation, an approach that failed to improve consumer welfare in the transportation sector. History thus counsels against adoption of most versions of net neutrality.  Christopher Yoo has written a detailed history of how difficult common carriage regulation was to implement in traditional telecommunications regulation.  A shorter version will appear in the summer issue of Regulation.

The public debate over net neutrality also does not reflect the increased variation in the price and quality of its services that already exists.  Innovations such as private peering, multihoming, secondary peering, server farms, and content delivery networks have caused the Internet’s traditional one-size-fits-all architecture to be replaced by one that is more heterogeneous. Related, network providers have begun to employ an increasingly varied array of business arrangements and pricing. These changes reflect network providers’ attempts to reduce cost, manage congestion, and maintain quality of service. Policy proposals to constrain this variation risk harming these beneficial developments.