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Professor Allen Hammond on Net Neutrality

Benchmark reached out to Professor Hammond to get his perspectives on net neutrality; here are some excerpts from the interview.

On what's at stake in the debate

Benchmark: What’s at stake in the Net neutrality debate – what do we stand to gain or lose?

Allen Hammond: I think what we stand to gain, if we have people who are able to have access to the Internet and use the Internet the way that they’d like, is an opportunity for public dialog and public communication that we haven’t had really since the city green.

With the advent of the Internet and the advent of cheap computers and other platform devices, the amount of communication that the public can engage in one-on-one, one-to-many, many-to-one, is astounding. But to the extent that that relies on a transport system that can restrict the amount of information one uploads or downloads, there are therefore, limits on speech.

But these are not government limits on speech, in the sense that the Constitution prohibits the government from basically establishing laws that adversely infringe upon speech. Obviously at that time, it placed time, place, and manner restrictions. But these are private restrictions on speech in essence, or on the flow of communication, and therefore, may not be reachable by the Constitution. In that sense, it’s problematic.

On specialized service and critical infrastructure

Benchmark: One of the topics that’s come up in the debate is specialized services – services outside the Web proper that would be exempt from many rules – and then also separating out wireless and having separate rules for wireline and wireless services. What are the ramifications of such segmentation in access to broadband?

Allen Hammond: If they’re used as a way of bypassing the protections that normally would accrue, or should accrue, in access to broadband, I think that’s where the problem is. And there’s legitimately a debate about that, and there should be.

I don’t think anyone is really arguing that the ISPs should not be in the business of providing services to make money. No one builds networks unless they’re going to be able to cover their costs and make a profit. So I don’t think that’s the issue. The issue is that we are talking about, at the same time, the nervous system for the nation, and really for the world, but certainly as far as Americans are concerned, for the nation. We’re talking about the backbone of the communications network. This nation – not just in terms of speech rights for the public – but the military relies on it, all of our commerce relies on it.

So it’s bigger and more important than just a business operating solely on its own best interests. There are other things that have to be balanced into that as well, and that is why it’s important to have the FCC focused on this and, ideally, Congress as well.

On legislative/regulatory prospects

Benchmark: So what do you think Washington’s going to do about net neutrality?

Allen Hammond: Realistically, unless there’s some cooperation between the House and the Senate and within the House, I don’t think there’s going to be any legislation that makes it out. So if there is no legislation, then the solution to the issue of where the FCC’s authority comes from is going to fall back to the FCC and then be litigated through the court.

I think legitimately, the FCC under Title II can regulate the underlying communications networks, because they still are telecommunications networks. That will require the FCC to review some of its earlier policy decisions and justify those consistent with the Administrative Procedure Act. I think that can be done. The issue is going to be litigating that through the courts until you get a resolution.

The basic things that the FCC was trying to accomplish with the four and now six basic [broadband] tenants that it’s been proposing for the last two years – those are fundamental to having the system work, period. And that’s where the attention and the effort should be placed.

On the Internet and democracy

Benchmark: So from your perspective, it’s as much about speech and the democratic process as it is about anything else?

Allen Hammond: We didn’t always have ways that work very well of finding out what everyone else thinks. We do now, with Twitter and with Facebook, and with a lot of other ways of communicating. But to the extent that those become managed by price points that may price certain people out of the market, or performance criteria that if they’re charged for, begin to price people out of the market, then we have a much less rich dialog among people and between people. And I think that’s something we have to watch out for.

If I’m working for a large corporation that’s providing ISP services, I am of course looking for ways to maximize my investment and cover my costs. And in doing that, I’m not thinking about, nor am I supposed to be thinking about necessarily, the impact on the democracy itself. I’m looking at it as a market, and that’s a different manifestation. But someone else has to be looking at it as a democracy and as a nation. And we have to balance those two things out.

On innovation

Benchmark: Now in the debate, both sides are claiming that innovation will be stifled if the other side wins. Google has been on both sides of the issue now. But it’s the free and open Internet that made companies like Google possible.

Allen Hammond: It is the free and open Internet that made them possible. Their business plan is based upon everyone having access. You know, this debate has been going on since [the advent of the] computer, about smart versus dumb networks and innovation at the edges versus innovation at the core of the network. And the truth of the matter is the innovation has to happen in both places for anything to work. It ebbs and flows.

This is not something that just came into existence. It’s not an idea or concern that’s just all of a sudden manifested in the last year and a half. Anyone who knows anything about telecom regulation and competition in history knows that this is a debate that’s been going on forever. We’re not going to come up with a policy that jeopardizes the core networks that we need for everything to function in this society.

So, we’re not going to kill the goose that laid the golden egg in terms of the speed with which technology has been able to facilitate a substantial portion of the growth in our economic system. So this is in some sense a specious debate.

My point is this. We need that innovation at the edge. We need the small businesses. They produce the vast majority of the jobs. They’re absolutely essential to the economy. So we can’t lose those. At the same time, we need for there to be the opportunity to make a profit, to grow, to expand, and to make money. That’s who we are. That’s how our economy works.

On transparency

Benchmark: What about the whole issue of transparency?  The idea that users should know if their ISP is limiting their speed or access, or giving certain content priority?

Allen Hammond: Without transparency, you won’t know why they’re doing it or that they’re doing it unfairly. That’s why, again, you go back to the net neutrality rules.

Now, there were a lot of things that you had in Title II which were necessary when we had a monopoly we were regulating. But we’re not regulating a monopoly. This is an oligopoly situation with more competition, but not so much that we don’t need some basic rules of the road. So we still need the transparency, and we still need the requirement for non-discrimination or fairness. We still need to make a distinction between what’s legitimate to manage the network and protect it against harm and what becomes an anti-competitive tool to basically preclude competition from other businesses that might otherwise exist or could otherwise compete.

And we’re going to need that no matter what. Because as long as the nervous system is facilitated by corporations who have to go to investors and shareholders to get the money to build and maintain it, they’re going to have incentives to capitalize on and make use of that network for the purposes of making money and doing what they’re supposed to be doing. That’s what the shareholders pay them for.

On the difficulty of the debate

Benchmark: You make the point that the Internet is essential for much more than commerce.

Allen Hammond: It’s essential to everything. And depending on how we manage the access to, and the speed and the quality and the services provided on these networks, who are owned by very, very few people, or very, very few corporations, it’s going to have a shift in the way we think about ourselves and the way we know who we are and the way we conduct our businesses. And in the way we spend our money. We’re balancing out all the needs of the society, if you will, and all the needs of the businesses.

Benchmark: And it’s hard for people to know and understand everything that’s involved in that balancing act.

Allen Hammond: And that’s because this is a complex area. Unless you have some sense of the history of how it’s developed, going back really before the monopoly that AT&T developed and the government’s role in that, and the corporation’s role in that, what it’s tied to and important to, the network and how the network has grown, and how businesses and society have grown, and how the concept of being an American has grown by virtue of these things; if you don’t understand those things, it’s hard to really understand which side you should be on.

I mean in a debate about managed, versus specialized, versus basic Internet services, how many people are going to understand what the terms mean?

Interview Allen Hammond

Allen Hammond

Allen S. Hammond, IV, is Professor of Law at the Santa Clara University School of Law, Director of the Broadband Institute of California and Director of the Law and Public Policy Program at the Center for Science Technology and Society at Santa Clara University. He is a graduate of Grinnell College, the University of Pennsylvania School of Law, and the Annenberg School of Communications at the University of Pennsylvania. He’s worked in the White House Office of Telecommunications Policy, at MCI, SBC, and in higher education at Howard University, Syracuse University, and the New York Law School.

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