Net Neutrality
Nicholas Johnson

The Michele Tafoya Show
December 21, 2010, 4:15-4:25 p.m.

Michele:  I have an article in front of me from ABC News. It's entitled “Net Neutrality:  FCC -- that's the Federal Communications Commission -- approves regulation of Internet providers.”  Now, I’ve been reading through this and I’m still not sure I understand.  So again, I bring in someone who is far more knowledgeable than I on these topics -- and I’m sure, many, many others.  So we are welcoming in Nicholas Johnson, a former chairman of the FCC, and I thank you for taking the time, Professor. Do you prefer to be called Professor, or Commissioner, or where do we go?

NJ:  Oh, “Your Holiness,” or “Nick,” or whatever you are comfortable with.  In point of fact, I never was never the chairman. I was simply the most outspoken of the seven commissioners when I was there. There are now only five.

Michele:  Why were there seven then, and only five now?

NJ:  I suppose it is both a cost saving measure and getting rid of troublemakers.

Michele:  I can’t imagine you were a troublemaker.

NJ:  Well, I spent seven years writing dissenting opinions explaining why what the FCC was doing was wrong, which did not endear me to my colleagues.

Michele:  Well, I can understand that, Nicholas Johnson, are you still a visiting professor of law at Texas?

NJ:  Well, actually at Iowa.  I attended law school in Texas, but my hometown is Iowa City, Iowa.

Michele:  Got it. So there are probably a lot of our listeners who are very familiar with your home city and state.  That’s good.

Net neutrality, can you dumb this down for those of us -- I honestly have been trying to read this and understand what it all means. What does it mean?

NJ: Well, you have a very high-class audience, they don’t need dumming down, but let me provide some analogies that may be helpful.

I am going to do a contrast between AT&T and the Internet, along with the old AT&T before it was broken up, along with some good things about AT&T.

AT&T was designed to handle only voice traffic. That’s all you could do with it, is make a telephone call.  The Internet, by contrast, was designed with nothing in particular in mind.  So, we have a network that is otherwise like the old AT&T network, but one on which you can run anything from multi-player games, to YouTube, to Facebook, to Skype, to email – can all run over the Internet.  And that’s one of its great blessings – that it is so open to entrepreneurs to come along with ideas that no one ever thought of before and sometimes become the next richest person on the planet.

One advantage of At&T, which net neutrality has to do with, with regard to the Internet, is that when the At&T monopoly existed, anybody who wanted a phone could get a phone, once they got a phone they could say over the telephone anything they wanted to say – At&T was not going to censor them or charge them more because of what they said -- and everyone paid the same price for the telephone service. All right?

Michele:  All right.

NJ:  So, that’s the issue right now. There’s a problem in terms of the values of the First Amendment that are of importance to WCCO as well as its listeners.  The values of the First Amendment tend to be involved in a conflict of interest when the person who owns the network, the AT&T network or who is providing the Internet service, also has an interest in the content that’s flowing over that conduit, flowing over those wires. Because they will have an economic incentive to try to censor or otherwise prohibit access to their competitors, or slow up the service for their competitors, or charge more to their competitors, than for, say, their news service or email service, or whatever they are offering.
So that’s the problem that we are trying to avoid.

Michele:  Does what the FCC did today, approving this regulation of Internet providers, does this do that?

NJ:   It is, as President John Kennedy once said, “The journey of a thousand miles begins with a single step.”  This is a baby step down a very long trail in the right direction.  There are as many things that the FCC did not do today.  But, yes, I think for the FCC to get involved -- and there is, of course, the question as to whether they can do so legally, whether they have jurisdiction under their present statute to do this at all --

Michele:  Do you think they do?

NJ:  I think they do, but I think that’s certainly going to be litigated, because the largest corporations want to be able to censor their competitors.

But, what’s made it work is that it really is open to everybody.

Michele: Yes.

NJ: And that’s been its genius, and that’s been its meteoric rise in terms of acceptability and in terms of its openness to entrepreneurs,  and we would really be shooting ourselves in the foot as a nation to give these large carriers the right to determine what kind of content can flow over the Internet.  We would be back with what we had with the old AT&T only providing voice communication.

Now, there is an issue with regard to whether some users and some providers of content ought to be charged more than others --

Michele: OK.

NJ: -- where I think the carriers may have a legitimate interest.

And the analogy I would give you is that at the present time trucks, semi-trucks, make a contribution to the cost of the interstate highway system on the basis of the number of trucks the trucking company has.

Michele: OK.

NJ: Now if you had a system where they only paid per company, and one trucking company has 2000 semis on the highways and another trucking company has two..

Michele:  Got you. That’s unfair.

NJ:  That would be a little unfair. It would not be unreasonable to say, "Look, if you’ve got 2000 trucks out there, you really ought to be paying more than this poor guy who just barely can afford to pay for the two he’s got."

Michele: Got it.  Got it.

NJ:  And so, what’s involved here is, what do we do? And I would say this ought to be limited to no more than, say, the top 5% of Internet suppliers, Internet users.  I think for 95% of users there ought to be a flat rate,  itshouldn’t make any difference how much band width they are using or what they are looking at.

But I think if you’ve got somebody who’s in the top 5%, now we can talk in terms of lanes of traffic on the interstate.  If you are going to provide an interstate around L.A., you may very well to need to have eight lanes of traffic. Whereas, if you are just running something from south Minnesota into north Iowa, you may get by with four lanes.

Michele:  Got it.

NJ:  So if you have to provide eight lanes of Internet, because there is some little kid in the suburbs of Minneapolis who plays online multi-player video games with players all around the world and use a 50 megabit service to do it, and his next door neighbor just sends an occasional email --

Michele: Yeah, yeah.

NJ: -- it’s not unreasonable, if that kid is in the top 5% in terms of the number of interstate lanes he is using.

Michele: Got it.

NJ: Ditto for someone who is constantly downloading movies, or other heavy, heavy users or providers.  But I think for 95%, there ought to be a flat rate.

Michele:  Nicholas Johnson, a former member of the Federal Communications Commission.  I would love to talk to you again, because this is so in depth and there is such a lot of interesting stuff. Thank you so much, “Your Holiness.”

NJ:  Well, you are quite welcome.  As you see, I am seldom a man of very few words.

Michele: But they are meaningful and important words and we really appreciate the time.  Thank you so much.

NJ:  Well, I appreciate WCCO and you, Michelle.

Michele:  Thank you.  That is Nicholas Johnson out of  Iowa, and again, a visiting professor of law.