Last week’s Verizon/Google joint FCC filing on net neutrality contained a substantive idea that was worth discussing – a proposal for “Technical Advisory Groups.” But there’s an item that’s also worth discussing because of its incompleteness: net neutrality in the wireless space. Google and Verizon apparently consider it an important enough issue to include, even though they couldn’t agree on anything more specific than to encourage the FCC to “examine specific market and technical factors before applying any general oversight or specific rules to wireless broadband networks.”

But while the issue of wireless network neutrality is important, it’s the wrong one to fixate on at the moment. Wireless is, in fact, different from wired, and the issue of neutrality does not transplant as cleanly from one to the other. Neutrality opponents have, in general, greatly overstated the technical case against regulation. But in the wireless arena as it exists today, their dire warnings are far more plausible.

As with the points of agreement in the Verizon/Google brief, this comes down to the participants’ market positions. Verizon is the country’s most powerful wireless operator, while Google is at the center of the Open Handset Alliance, the organization behind the Android platform and the effort to diminish carrier control that it represents.

Getting a Handle on Wireless Net Neutrality

But what does network neutrality mean in the wireless context? As with the larger debate, people have varyingly expansive ideas about where to draw the line. A good place to start is Tim Wu’s 2007 Wireless Carterfone paper. Wu, at least, is quite specific about what network neutrality involves, basing his criteria off of then-FCC chairman Michael Powell’s “four network freedoms”: choice of applications, choice of devices, choice of content and service plan transparency.

As you might imagine, the wireless carriers don’t like some of these ideas — particularly the first two — saying that they’re technically unworkable. And though I’m hardly a cheerleader for America’s wireless carriers, in this instance, they do have a point. Roger Entner makes the case, pointing out that wireless cells are a shared resource with limited capacity. Wu anticipated this criticism:

The problem with this argument is that scarcity is an economic feature of not just wireless networks, but wireline networks as well. Both wireless and the local loop are last-mile networks of limited available bandwidth, and, in fact, the bandwidth available on a copper local loop is considerably less than on some of today’s wireless networks. For both products, it can be claimed that third parties cannot be trusted to make products that respect the shared needs of the network. In the Hush-a-Phone case, for example, AT&T claimed that third parties would bear “no responsibility for the quality of telephone service, but [be] primarily interested in exploiting their products.” Similarly, local carriers for years complained that modems abused the scarce resources of the phone network (by maintaining long connections). But as Judge Robert Bork argued in another context: “All economic goods are scarce… since scarcity is a universal fact, it can hardly explain regulation in one context and not another. The attempt to use a universal fact as a distinguishing principle necessarily leads to analytical confusion.”

But this is an oversimplification. There are spatial constraints on wireless operators that don’t apply to wired networks. Two cables running side-by-side will not typically interfere with one another; two cell towers operating on the same portion of spectrum and space will. And mobile data users are just that — mobile. A bad DSL modem or heavy Bittorrent user with a cable connection might impact the service of those on the same local loop, but the size of that loop can be controlled by the network operator, and the customers on it can be easily tracked and, if necessary, sanctioned. The number of users impacted by a malfunctioning wireless modem or handset-spewing packets is primarily a factor of population density.

And on cellular networks, tracking down network malefactors is harder and sure to be more expensive than the example cited by Wu. In the Hush-a-Phone case, a commercial entity existed that AT&T could sue. If the manufacturers of the Hush-a-Phone device were to lose such a lawsuit, they risked losing their capital investment. It was in their own interest to produce a device that worked well enough with the AT&T network to satisfy consumers and avoid the network operator’s wrath. The incentives for individuals to use wireless networks gently are much weaker: a canceled contract? A stern letter? This wasn’t enough to discourage those who participated in Operation Chokehold, a deliberate effort by iPhone users to cripple the AT&T network in protest of new bandwidth restrictions.

A More Pressing Wireless Issue

Of course, Chokehold proved to be something of a bust — unsurprising, perhaps, given that even its creator was urging people not to participate by the time the event actually rolled around. Still, the capacity of individuals to damage other wireless users’ service shouldn’t be ignored. I’m in no position to judge the legal merits of Judge Bork’s assertion that scarcity is an incoherent rationale for regulation, but surely it makes practical sense to demand that people stop watering their lawns during a drought. The FCC considered Operation Chokehold a real threat; anyone who’s tried to share wifi on a discount bus line with someone watching video — or just tried to use their iPhone during business hours in San Francisco or New York — intuitively understands how cramped the data portion of cellular networks currently is.

One obvious response is that the networks should be expanded. This is undeniably true: the nation’s demand for wireless data is sure to increase dramatically. The carriers must find fairer ways to charge for access, and begin paying more attention to infrastructure and less to marketing gimmicks. But it’s still the case that the operators must prioritize reliable voice service over data service; that spectrum is a scarce resource; and that there is a tension between expanding existing infrastructure and investing in coming generations of technology.

There’s reason for optimism. WiMAX promises to deliver a wireless network designed for data, and is close to widespread deployment. The transition to digital television also promises to deliver useful spectrum for wireless data (though much of it is currently being used to broadcast reruns of Magnum P.I. and redundant weather channels, thanks to an indefensible giveaway to incumbent broadcasters). Once new wireless networks and technologies remove the tight constraints currently facing mobile data users, protecting and enhancing users’ network freedoms should become a priority for the FCC. Until then, ensuring those networks’ viability must unfortunately remain their focus.