Special report In an extraordinary flurry of allegations, personal insults and legal threats, net neutrality has entered the world of academia.
At the heart of the row is a new paper in the International Journal of Communication (IJOC) that claims to act as a rebuttal to an earlier paper that has been repeatedly cited by the chairman of America's federal regulator, the FCC, as justification for tearing up existing net neutrality rules.
That new paper alleges that far from being an independent analysis, the original paper was commissioned by an advocacy group funded by the cable industry, that its authors have effectively acted for the cable industry for years, and that the claim at the heart of the paper – that there was no economic analysis behind the net neutrality rules – is bunkum.
When the authors contacted the other paper's authors, as well as the group behind funding the paper to put their claims to them for a response, they were understandably upset.
Within days, the editor of the IJOC received a slew of letters and legal threats telling him not to publish the paper due to its "false and misleading defamatory assertions" and claiming that it would "provide a basis for liability in the event of reckless publication."
Other letters flung the same dirt at the report's authors, raising questions about their funding, questioning specific claims in the papers, and alleging that they were compromised due to relationships with other groups that are pro-net neutrality.
Despite the not-so-subtle legal threats, the IJOC went ahead with publication, accompanied by no fewer than three responses from the aggrieved. Such was the intensity of argument that the IJOC also published it as a "feature" rather than an "article" and added a disclaimer that the paper did not reflect the IJOC's views.
So far, the new paper has attracted nine responses, and the upshot – as with most things surrounding the case against net neutrality – is that the increasingly partisan nature of the net neutrality debate is forcing everyone in one of two camps, to the detriment of informed debate.
Most strikingly, the fact that the original paper The Curious Absence of Economic Analysis at the Federal Communications Commission: An Agency in Search of a Mission has been used by anti-net neutrality advocates and the chair of the Federal Communications Commission (FCC) Ajit Pai as evidence for why the Open Internet Order needs to be struck down, has pushed it into the anti camp and so opened up it up to critical attack.
We spoke with one of the authors of the original paper, Hal Singer, and he told us he never expected his paper to become part of the angry swirl around net neutrality.
Singer sits in the unwelcome middle of the net neutrality debate: not happy with the Title II classification that the Open Internet Order imposes on telcos but equally unhappy with the hands-off approach advocated by chair Pai (something Pai insists is merely "soft touch regulation").
Singer advocates for the neutral fact finder approach used by the FCC to adjudicate claims of discrimination by independent cable networks against vertically integrated cable operators. "I'm not in the Pai camp, I'm not in the Winseck camp," he says, referring to Dwayne Winseck who co-authored the new paper that attacks Singer's paper as the product of a cable industry's behind-the-scenes efforts.
Singer also believes that the common carriage aspect of Title II is useful but that the reality is that the 1932 law used to ground the current net neutrality rules is wildly out of date and so not fit for purpose. "The sheer amount that they had to forebear is effectively an admission that it is not the right fit," he told us, referring to the fact that the FCC effectively gutted the original law to attach it to telcos.
The intent of his original article, Singer argues, was to point out that the FCC does not use sufficient economics – and in particular cost-benefit analysis – to make decisions. In fact, when pressed on whether it had carried out a cost-benefit analysis in arriving at the Open Internet Order, the FCC at the time responded, correctly, that it didn’t have to.
That's because, unlike executive agencies under the control of the White House that are expected to do such analyses, the FCC is semi-autonomous. Singer says he was approached by CALinnovates and asked if he would co-author a piece digging into the lack of economic analysis at the FCC. And being an economist, he said yes.
"Our article… traces the history of economic analysis at the FCC from its peak in the 1990s to its virtual disappearance in recent history," reads the response from Singer and co-authors Gerald Faulhaber and Augustus Urschel to the new IJOC paper attacking their work. It continues: "What our article does not do is to comment, criticize, or in any way analyze the substantive issues subject to these orders (e.g., network neutrality)."
But, of course, if it was just an academic paper arguing for better economics at the FCC, there wouldn’t have been the explosion we've seen with this new paper.
Singer admits that the white paper originally contained a large section on net neutrality and in particular what the FCC's then chief economist Tim Brennan said was an "economics-free zone" when it came to the Open Internet Order.
Brennan has repeatedly expressed [PDF] his "regret and chagrin" over a comment that he says was "part of a self-deprecating joke I told to defuse tensions at a small but contentious conference on the FCC’s Open Internet Order" but which has become a constant refrain and battering ram used by anti-net neutrality advocates.
However, the paper of the white paper dealing with net neutrality was pulled out of Singer's paper before it was published in the IJOC, leaving it largely about the lack of economic analysis at the FCC.