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Expanding the Tubes

Chris Hoofnagle, professor of law in residence | November 5, 2009

Inherent in the network neutrality debate is the interest in providing high quality of service for internet communications that are delay intolerant, such as VoIP and video. But could we provide high quality of service by simply increasing bandwidth?

There are many economic barriers to investing in architecture and capacity. A recent FCC presentation suggests an approach to improving speed competition among ISPs: get them to advertise with, well, less lying.

My home ISP advertises speeds up to 6 Mbps. Affiliates are even more strident, eliminating the “up to” language. But my frequent tests have never exceeded 3.5 Mbps, which is similar to Comscore’s findings included in the FCC’s presentation. You get about half of what is advertised.

Advertising a theoretical maximum speed is very appealing to consumers, it causes them to optimistically believe that they will enjoy that sweet speed. What if we changed the advertising rules to require disclosure of average speed, and consistent with advertising law principles, these average speeds would have to be substantiated? Would truth in advertising cause consumers to demand faster speed, and in the process, more investment in the network?