States Need to Focus on the Broadband Internet Ecosystem in Enforcement Matters

Next week, three of the leading U.S. broadband internet service providers (ISPs) — Verizon, Cablevision Systems and Time Warner Cable — will be filing responsive reports with New York State’s attorney general’s office. That office, under the leadership of Attorney General Eric Schneiderman, launched a recent probe regarding whether these ISPs did not deliver the actual broadband Internet speeds that had been advertised to consumers.

The ISP responses, which are expected to vigorously contradict the allegations, will present items that have specifically been requested for government review, such as proof of disclosures made to customers as well as any testing around Internet speeds.

Regardless of the resolution of this specific matter, it raises larger issues that all states will need to consider as they evaluate whether to initiate comparable investigations of select ISPs.

Since the release by the FCC of the National Broadband Plan in March 2010, U.S. policy has centered on the interrelationship of broadband applications and content (what we access through these devices or online), broadband devices (e.g., laptops, tablets and smartphones) and broadband networks (including cable and fiber wired networks and wireless networks that continue to advance in technical functionality). This bigger picture reveals that what drives consumer interest and demand is actually a broadband Internet ecosystem.

In short, applications and content, devices and networks are the essential elements of this ecosystem. They drive each other in a virtuous cycle that is highly interdependent. If broadband networks are fast, reliable and widely available, companies produce more powerful and capable devices to connect to them. These devices, in turn, encourage innovators and entrepreneurs to develop exciting applications and content. These new applications draw interest among various end-users, bring new users online and increase use among those who already subscribe to broadband services. This continuing growth in the broadband Internet ecosystem reinforces the cycle, encouraging service providers to boost the speed, functionality and reach of their networks.

So the New York State Attorney General’s inquiry may be looking too narrowly at only a single element of one part of a complex ecosystem—speed of delivery (which itself may be affected by such individualized factors as the quality and placement of an in-home router, along with the size of a particular residential dwelling unit). If other states frame their inquires in similar ways, they may repeat the same conceptual mistake of equating broadband Internet speed with broadband Internet value.

Instead, the better approach would be to begin any future investigation with the broadband Internet ecosystem as the central principle upon which all current and future policy discussions need to account for; anything less cannot help but be piecemeal. Without this essential holistic view, state law enforcement officials may be able to achieve quick fixes, but they also may create negative unintended consequences in the larger broadband Internet ecosystem at play.

Net Vitality in its most vibrant sense should be the real goal in mind. The New York State investigation suggests that this needs to be articulated early and often at the state level in order to help sustain a truly Wide Open Internet and benefit consumers over the long run.

Stuart N. Brotman teaches at Harvard Law School and is the author of
Net Vitality: Identifying the Top-Tier Global Broadband Internet Ecosystem Leaders.

Morning Consult