Probably the single most common argument used by the net-neutrality folks goes something like this.

I paid for my network bandwidth. Google paid for theirs. Why should either of us get charged again when I access their site?

Like the “double taxation” canard that estate-tax opponents use, this one is more smoke than substance. First, you didn’t pay for your bandwidth. You paid for a physical connection that has a particular maximum bandwidth capability, and for a share of the bandwidth available to those who got the same service you did. If every subscriber to your provider in your neighborhood tried to use their maximum bandwidth at the same time, it simply wouldn’t happen. Networks simply aren’t built that way. If they were they’d be overbuilt, at great expense, for 99.999% of the time, and the people who make networks can’t afford to do things that way. You compete with your neighbors for the bandwidth that is available; you always have and you always will. Check your ISP contract if you don’t believe me. If you want guaranteed bandwidth, you have to pay more for a “service level agreement” with your bandwidth provider, and that’s exactly what the Markey amendment at the core of this debate would preclude.

Second, neither you nor Google paid for bandwidth all the way between you and them. There’s a handy little program called “traceroute” (or “tracert” on Windows) that can show you the path that your packets will take to and from some particular site. Use it. You will see that there are almost always multiple networks involved – yours, Google’s, and not one but several in between. You paid for part of that, and Google paid for part of that, but nobody in particular paid for the rest. What happens instead is that networks set up “peering agreements” in which they agree to transport packets for one another, in what amounts to a “gentlemen’s agreement” that spreads the costs out among all of the so-called backbone providers.

Unfortunately, not everyone’s a gentleman. Some people might remember hearing about peering agreements a few years ago, and it was probably because some networks weren’t being very gentlemanly. They were dumping more of their packets onto other networks than they were accepting in return, sometimes deliberately offloading traffic that they could have carried all the way from their source to their destination by themselves. This shifted costs from them onto others, and others resented it so they started refusing or terminating peer agreements that they felt were inequitable. Imagine for a moment if airlines worked this way, agreeing to accept each others’ passengers when equipment failures and such might otherwise have left passengers stranded. Now imagine that Delta was found to be systematically dumping their passengers on Northwest, even when there was no real need, to save costs. Don’t you think Northwest might have a right to feel aggrieved? Yes, of course they would. One likely solution would be a demand from Northwest that Delta reimburse them for carrying the dumped passengers – but, again, that’s exactly the kind of thing the Markey amendment would preclude.

The problem with the Markey amendment, specifically 715(b)(3), is that it says networks must provide equal access to improved quality of service (QoS) without imposition of a charge. Saying that someone must provide a product or service that has value without charging for it is unreasonable restraint of trade. If network companies are prevented from providing enhanced QoS in software, by tagging individual packets, they can only do so by building more physically separate leased lines. That would mean an even more Balkanized net with the Markey amendment than without it. That’s called the Law of Unintended Consequences biting zealots right where their groupthink comes from.

Let’s go back to the Delta/Northwest example for a moment. Another solution to the problem would be to tighten up the requirements for when the “peering arrangement” kicks in. Similarly, with regards to net neutrality, the solution is not to outlaw any kind of QoS without regard for its necessity or value to customers. Instead, the solution is to specify in greater detail how and when it may be applied. If we could define – in general terms – what criteria may or may not be used to assign QoS, what obligations network providers have regarding QoS values specified by others, what disclosures those providers must make regarding what bandwidth is actually available and how it has been assigned to different QoS categories, then we’d be onto something. Then network providers could write specifics into contracts with their customers and with other networks, without sacrificing the ability to offer new products and services or to price them according to market demand. That, unlike the Markey amendment, is a solution that will actually sustain growth and development of a free internet.