CircleID

The cable guys have their way of saying it: "What do you want to do, nationalize our businesses?"

Another way of seeing this issue is: We have a very few very large providers of highspeed internet access in U.S. They have sufficient market power to decide how and when to prioritize internet communications. And all of these providers are competing with the internet in some way — they are all (or are becoming) old media and old telecom companies that want to maintain control over their distribution channels. The internet disrupts this control, and so they are competing with it.

This market power over access, and prioritization power, is good for these few providers but not good for the rest of us. It threatens overall economic growth and the development of new kinds of businesses and new ways of making a living.

Yes, we limit the powers of our government, and we're proud of that, but those limits do not forbid us from meeting modern conditions.

Even ten years ago, the thought of requiring nondiscrimination of cable providers would have been rejected as arbitrary and oppressive. Well, the thought of zoning regulations would have been unthinkable in 1910. The thought of regulating the upbringing of cows would have been unthinkable in 1920. But we did these things because it was better for the rest of us.

I understand that Comcast saves a dime or two a month per subscriber by doing the kind of peak-time traffic shaping that is the focus of the current uproar. That's not insignificant — it may add up to between $5 and $20 million dollars a year. But the service they're selling brings in over $5 billion. And the savings to Comcast is an incalculable cost to Vuze and other new video-distribution businesses that can't rely on a stable transport platform. It's also an incalculable cost to the rest of us, even if we've never heard of BitTorrent, because we can't rely on a fast, non-discriminatory internet connection for our future.

This wouldn't matter if we had enough choices of internet access providers in the U.S. We don't, and so the uproar continues.

Comcast isn't acting as just some old private business when it provides constrained internet access. It's providing communications infrastructure, and we don't (and shouldn't) expect our communications sidewalks to rise up and choose winners and losers.

Yes, uncontrolled government regulation (the "nationalize our business?" horrible) is wrong. But we do regulate, when we need to, when it's for the common good.

By Susan Crawford, Professor, Cardozo Law School in New York City. Visit the blog maintained by Susan Crawford here.

Related topics: Access Providers, Broadband, Net Neutrality, P2P, Policy & Regulation, Telecom