Editors' note: This is a guest column. See Larry Downes' bio below.
I've managed to slog through the 107-page "Notice of Proposed Rulemaking" (PDF) issued late last week by the Federal Communications Commission.
Let me save you the trouble of reading the 185 numbered paragraphs, 310 footnotes, and three appendices, including separate statements from each of the five commissioners: there's nothing to see here, folks.
First, let's be clear about what has not happened. No new law was passed. No new federal regulations were enacted. No decisions were made.
Instead, the FCC proposed draft rules to codify the six Net neutrality principles Chairman Julius Genachowski outlined in his speech on September 21. Now begins the process of gathering comments and other testimony. Later, the FCC will vote on whether to adopt the rules or to amend them, or just call the whole thing off.
The basic thrust of the proposed rules, as nearly everyone knows by now, is to keep broadband Internet access providers from managing last-mile network traffic in ways that discriminate, pro or con, based on content, applications, or devices. Access providers would be banned from restricting or throttling services that the provider doesn't like, for example, perhaps because they compete with more expensive alternatives the provider or one of its business partner offers. The proposed rules would apply to all broadband access, including wireless.
The comment process, which runs until March 2010, is open to anyone. The FCC is clearly expecting lots of comment. The document itself asks more than 100 questions, including whether the new rules are necessary, whether the commission should enforce them without detailed regulations but instead on a "case by case" basis, and even whether the commission has the legal authority to enact new rules in the first place.
1. We don't need no stinking jurisdiction
The last question hints at one of many ticking time bombs. Although the FCC has for years published policy statements regarding open networks, the commission's authority to enforce those policies is far from clear. Under the 1996 Telecommunications Act--the last major rewrite of federal communications law--only traditional phone services delivered by traditional phone companies are regulated as common carriers.
If the FCC has any authority to regulate broadband access, it comes from what Genachowski calls the agency's "ancillary jurisdiction." But Comcast has already challenged that jurisdiction, in a lawsuit pending in a federal court of appeals. If the FCC loses that case, the proposed rules may come to a quick demise.
In arguing against ancillary jurisdiction, Comcast has found a surprising ally: the Electronic Frontier Foundation. The advocacy group--strong supporters of the principles of neutrality--believes that the commission has no authority to issue these rules without sweeping new authority from Congress. Regulating neutrality under ancillary jurisdiction, the EFF worries, is a cure far worse than the disease; a "power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post."
Exactly.
What's the risk? For one thing, "ancillary" jurisdiction could also be applied, as the EFF points out, to the creation of new Internet decency standards. (Congress has tried repeatedly to regulate Internet content since 1996, only to be overturned by the courts.) The same FCC that now casts itself as savior of the open network, after all, has grown increasingly aggressive and prudish in policing content in its traditional job as regulator of over-the-air television. A federal court, for example, recently threw out the $550,000 fine levied in the Janet Jackson wardrobe malfunction case from the 2004 Super Bowl.
Speaking of power grabs, recall that the FCC has tried repeatedly, at the strong urging of media lobbyists, to force electronics and software manufacturers to implement the so-called broadcast flag. Responding to a signal embedded in programming, TVs, DVRs, and computers would be forced to limit the ability of consumers to time-shift programming, a capability we've enjoyed since the invention of the VCR.
Another federal court stopped that madness. Mandating the design of electronics and operating systems, the judges sneered, was no more in the FCC's power than "regulating washing machines." That rebuke hasn't stopped the FCC from trying again and again.
Maybe that's why the EFF isn't the only surprising voice calling for caution. Microsoft and Yahoo, leading application providers, have both pulled out of a coalition formed to advance Net neutrality, with Microsoft issuing a statement last year that "Network neutrality is a policy avenue the company is no longer pursuing."
2. Swallowing the rules
Even if the FCC has the power to issue new rules, there are enough exceptions to render them toothless. All the rules are subject to "reasonable network management" by broadband providers, a sensible limitation that is mentioned (though not yet defined) 66 times in the document.
As drafted, the new rules also allow access providers to prioritize performance-sensitive content, including voice and video, and to offer higher-price access options. This falls under the category of what the proposal calls "specialized" or "managed" services. That's nothing new. Harvard professor and open-network supporter Lawrence Lessig, who told the press that he was "thrilled" with the FCC proposal, has always believed that "broadband providers should be free...to price consumer access to the Internet differently--setting a higher price, for example, for faster or greater access."
The new rules, moreover, say nothing about discrimination by applications and Internet services. Even though access providers would not be permitted to block voice over Internet Protocol, or VoIP, telephone access from Skype and Vonage, in other words, the proposed rules would do nothing to stop Skype and Vonage from blocking calls to certain area codes, offering priority service to paying customers, or limiting the devices (e.g., cell phones) through which users can access their service.
There's no need to regulate applications, according to pro-neutrality groups like the Center for Democracy and Technology, because applications "do not suffer from the same bottleneck problem that the underlying broadband service inherently has." In other words, if Google searches prioritize Google content, and you don't value that kind of discrimination, you can use a different search engine. But today, in many parts of the United States, consumers effectively have only one or two choices for broadband access--their phone company and their cable company.
3. Avoiding the real problem
That, of course, is the real reason everyone, including me, worries about non-neutral behavior. In the absence of real competition, monopolies and duopolies have strong incentives to discriminate in ways that can severely burden some classes of users--whether consumers or service providers or both.
Despite a few isolated incidents of clumsy interference, however, no one really believes that the lack of competition has created true market failures. At least not the kind of failure severe enough to justify the intensive federal regulation visited, with mixed results, on U.S. railroads a century ago or of the telephone monopoly from 1913 until 1982. Pro-regulation advocates, including Chairman Genachowski and Google Vice President Vint Cerf, speak in the conditional tense. The word "could" appears 55 times in the FCC proposal.
Regulating ahead of a market failure makes little sense when, as everyone acknowledges, the underlying technology for access is evolving rapidly and models for making money in Internet provisioning are still in the early stages of development. The risk of non-neutral behavior is significant, but the cost of regulation and the potential for unintended consequences may be higher. "Have we correctly identified the costs and benefits of the alternative approaches?" the commission asks. The answer is that it hasn't even begun to identify either, correctly or otherwise.
And if the real problem today is broadband bottlenecks, why is so little being done to encourage competition? Municipal wireless Internet projects have largely shut down, in large part because state governments and their lobbyist friends maintain that the law allows them to prohibit cities from competing with private-sector communications companies, a view supported by the FCC in 2001.
Offering broadband over power lines, another promising option, has been stymied, with the FCC receiving still more abuse from the federal courts in 2008, for their failure to adequately support the development of the technology.
Net neutrality advocates may be celebrating the start of a process they have argued for since 2005, but here, as with all technology regulation, it's wise to be careful what you wish for. For now, the proposed rules look to be dead on arrival--and of multiple causes.
That's one more reason to wonder why, if there is a problem to be solved sometime in the future, anyone thinks the FCC is the organization best-suited to solve it.
Say what you will about the wireless phone companies, but in a crunch their managed 3G cellular networks get the job done when Wi-Fi connections fail.
I was in Chicago at a telecom trade show this week and had to cover a Federal Communications Commission's meeting via Webcast. Ironically, the meeting was focused on the FCC's proposal to draft new regulations to keep the Internet "open" and "free."
The video for the Webcast, which I was watching over an unprotected Wi-Fi connection, started out fine. But after only a few minutes, the picture began to break up, the buffering wheel on the media player churned wildly, and the audio stopped and started so often that I only could make sense of two or three words at a time. Sometimes the audio would start up where it had left off, but then quickly jump ahead to the live stream, cutting out entire sentences and paragraphs.
When I couldn't take it any longer, I shut down my computer, rebooted, and plugged in my Sprint 3G air card.
Almost immediately after launching the video, Chairman Julius Genachowski's face popped up on the screen clearly. But the best part was that I could hear everything he was saying. I didn't experience one hiccup, not one pause. There was no little circle turning round and round as the video buffered. It was working perfectly.
The problems I experienced were likely due to congestion on the unsecured Wi-Fi network. Even though I didn't see a lot of people connecting to the network, there was still likely a lot of traffic. Meanwhile, Sprint's 3G wireless network is more tightly managed, because the licensed spectrum is a limited resource that must be used efficiently. So even if there had been congestion, I might not have even noticed.
Sprint, which owns spectrum licenses, has more control of the traffic that is on its network than the trade show folks who put up the Wi-Fi network, which uses unlicensed spectrum. In theory, the Wi-Fi network should be at least three times faster than the cellular network. But when there is a lot of traffic on the Wi-Fi network, Web pages load slower and video gets warped and choppy.
How Net neutrality fits in
One of the issues that has been hotly debated among Net neutrality supporters and detractors is how to prevent network operators from favoring some traffic at the expense of services, while also allowing the operators to manage their networks to ensure their customers have good experiences.
As I sat watching the choppy FCC Webcast, trying to piece together what was being said, I experienced firsthand how an unmanaged, congested Wi-Fi connection, simply doesn't work, especially when it comes to video.
And if we are to believe companies, such as Cisco Systems, which makes most of the routers powering the Internet, the Net is about to become a whole lot more congested. In June, the company said that Internet traffic worldwide would grow to five times its current size between 2008 and 2013. And much of this growth will come from video. Not only is video traffic very time sensitive, but it also eats up a lot of bandwidth. The result is a double whammy for network operators.
With a recent survey of more than 20 service providers around the world, Cisco predicts that by 2013, 90 percent of all consumer IP traffic will be video. Today throughout the world, the average broadband connection, generates about 11.4GB of Internet traffic per month. Of this 11.4GB of data crossing Net monthly, 4.3GB of it is video or some other type of visual application, such as social networking or collaboration services.
What this means for network operators is that a tsunami of data traffic is coming. And even though network operators continue to add capacity to prevent congestion, they also need to better manage their networks.
Network design becoming more critical
At the Supercomm 2009 trade show this week, AT&T Chief Technology Officer John Donavan said that there must be changes in how networks are designed and managed to keep up with demand.
"The capacity we carried in 2008 will be a rounding error five years," he said. "We need to fundamentally rethink how we're carrying traffic in our networks. We have to rethink how we interoperate, how networks are constructed, how routing is done. How we move content in off-hours."
He warned that there will be consequences if operators don't act soon. "We'll end up in a dire situation a few years out if we don't collectively step up as an industry and throw Moore's Law out the window," he said.
So with more traffic on the network, operators say now is not the time to change regulation that could inhibit the way they manage their networks.
"If you have to treat all bits the same, it's hard to manage and protect the network," Tom Tauke, Verizon's chief lobbyist said. "When you're trying to make the network flow, you can't have lawyers looking over engineers' shoulders telling them what they can and can't do."
It seems that the FCC has gotten the message. In the nondiscrimination principle that was presented at its meeting this week, the document spells out that network operators cannot discriminate against particular Internet content or applications, but it allows for traffic discrimination when allowing for reasonable network management.
Of course, the FCC is only in the beginning stages of drafting the new Net regulations. And no one knows what the final wording will be. But I hope that when the official regulations are adopted, that network management is preserved unscathed. Because if it's not, we're all in trouble.
Google and the wireless industry have been at each other's throats all year over Net neutrality, but the search giant found room for compromise with new friend Verizon Wireless Wednesday.
Two weeks after announcing joint plans to release a series of phones and devices running Google's Android software on Verizon Wireless' network, the companies have authored a joint position piece on Net neutrality, highlighting their agreement in several broad areas.
Google CEO Eric Schmidt and Verizon Wireless CEO Lowell McAdam attached their names to the piece, which was posted on their respective public-policy blogs Wednesday evening:
Verizon and Google might seem unlikely bedfellows in the current debate around network neutrality, or an open Internet. And while it's true we do disagree quite strongly about certain aspects of government policy in this area--such as whether mobile networks should even be part of the discussion--there are many issues on which we agree.
For starters, we both think it's essential that the Internet remains an unrestricted and open platform--where people can access any content (so long as it's legal), as well as the services and applications of their choice.
On Thursday, the Federal Communications Commission plans to consider a proposal to add two new "principles" of support for Net neutrality concepts and make all six principles held by the agency into regulations. In the run-up to the debate, broadband providers like AT&T and Verizon Communications (together with Vodafone, a parent of Verizon Wireless) have argued loudly against such rules, with Verizon Communications CEO Ivan Siedenberg slamming Net neutrality supporters--singling out Google--just hours before the joint Verizon Wireless-Google statement was released.
Net neutrality supporters want the government to develop regulations guaranteeing access to services and applications delivered over the Internet, reducing the ability of wireless carriers and broadband providers to pick and choose preferred services for their networks.
Opponents such as AT&T and Verizon Communications concede that some rules are likely to pass, given the strong level of support among FCC commissioners, but they want to limit the scope of those rules as much as possible.
Despite a historical reputation as the most heavy-handed carrier regarding the applications that run across its network, Verizon Wireless has recently shown signs of loosening up its policies. It has already said it will allow Google Voice to run on the Android handsets slated for its network, an application that has been at the center of much controversy between Google, Apple, and AT&T this year over its exclusion from the iPhone. That's the gist of Verizon's stance in its open letter: self-regulation is better than government regulation.
For its part, Google said it doesn't mind "light-touch regulation"--a phrase it might revisit down the road, as the government takes a closer look at its dominant position in the search market--but the search giant feels "that that safeguards are needed to combat the incentives for carriers to pick winners and losers online."
Advocacy groups say AT&T has gone too far in its lobbying efforts to oppose the Federal Communications Commission's new proposed Net neutrality regulations.
This week AT&T's top lobbyist Jim Cicconi sent a memo to managers urging them to encourage their families and friends "to join the voices telling the FCC not to regulate the Internet."
Over the past few weeks, the battle over Net neutrality has heated up as the FCC is set to start the ball rolling on a process that will make the agency's existing open Internet principles official regulation.
AT&T has been one of the biggest opponents of the new regulation, along with Verizon Communications and cable company Comcast. On the other side of the debate are consumer advocacy groups and large Web-based technology companies, such as Google and Amazon.
The phone companies have rallied support among some congressional leaders, both Democrat and Republican, who have sent letters to the FCC opposing new regulation. And the advocacy groups and big Internet companies have done the same.
But many advocacy groups say that AT&T has crossed the line by suggesting to its employees that they use their personal e-mail addresses to post comments opposing Net neutrality regulation. These groups believe that AT&T is deliberately trying to create the appearance that average citizens oppose the Net neutrality regulations.
"AT&T is practiced in spending money on so-called astroturf groups to give the appearance there is widespread support for their agenda," said Timothy Karr, campaign director for the advocacy group Free Press.
AT&T defended its actions by saying that it is merely rallying support for its cause.
"We were providing important information to our employees," said Michael Balmoris, a company spokesman. "And it was up to them to respond personally. If they use their company e-mail that is fine, too. It was not a mandatory business request."
Balmoris argued that groups such as Free Press and Public Knowledge also mobilize people on the Web. They send e-mails to thousands and provide talking points and even form letters that they can send to congressional leaders or post as comments.
This is true. But Karr argues the main difference is that Free Press and other advocacy organizations do not pay the people who post those comments and send those letters. What's more, their Web campaigns are built around people who have specifically asked for information on the subject and are generally already in support of Free Press' positions.
"Our activists aren't on our payroll," he said. "And they come to us looking for information. When a letter like this is sent to every manager from one of the company's most senior executives, it's hard to imagine AT&T employees thinking the memo was merely a suggestion."
Art Brodsky, a spokesman for Public Knowledge, another advocacy group supporting Net neutrality, also took issue with AT&T's letter to its employees. Brodsky said that not only are the talking points AT&T uses in its memo questionable and debatable at best, but he said that AT&T is subtly threatening employees by describing the FCC as "poised to regulate the Internet in a manner that would drive up consumer prices, and burden companies like ours while exempting companies like Google."
"When you send a letter to employees and say that our business will suffer if you don't do this, it's very misleading especially in this economic environment," he said. "People are afraid of losing their jobs. But the fact of the matter is that AT&T has already laid off 20,000 employees , and it's had nothing to do with Net neutrality."
The FCC is expected to begin the process of creating rules for Net neutrality regulation at its monthly meeting on Thursday. The FCC has extended the period for receiving comments until Thursday.
From left to right: Paul Jacobs, Qualcomm CEO; Irwin Jacobs, chairman and former CEO of Qualcomm; Steve Largent, CTIA president and CEO
(Credit: Marguerite Reardon/CNET )SAN DIEGO--Executives from mobile chipmaker Qualcomm said Thursday at the CTIA Fall 2009 show here that more wireless spectrum is needed to sustain current trends in wireless data traffic. The father-and-son duo who serve as chairman and CEO of the company respectively also warned against stringent Net neutrality regulation.
Irwin Jacobs, Qualcomm's founder, former CEO, and current chairman, and Paul Jacobs, Qualcomm's current chief executive, took the stage at the event with CTIA CEO and President Steve Largent for a conversation about the past and future of the wireless industry. As part of the discussion, both Jacobses said that more wireless spectrum is needed to keep up with the pace of customer demand for wireless Internet services. And they warned against strict regulation that could restrict operators' ability to manage their networks.
The CTIA, which is the lobbying organization for the wireless industry, has been pushing the Federal Communications Commission to allocate more spectrum for auction. The group sent a letter recently asking the FCC to allocate an additional 800 MHz of spectrum.
FCC Chairman Julius Genachowski said during his keynote address here Wednesday that finding more spectrum is the No. 1 priority for the agency. And he promised that the commission would do all it can to encourage more efficient use of spectrum, as well as, reallocate spectrum and find new spectrum to auction off.
Paul Jacobs, Qualcomm's current CEO, said that engineers are at their limit in terms of squeezing out efficiencies within the current bands of spectrum. Qualcomm, which was founded in 1985, has been instrumental in the development of the wireless industry. The company holds hundreds of patents and its engineers have invented technology that is fundamental to most cell phones used throughout the world today.
"We've done what we can in the lab to make mobile devices more efficient," he said. "We will have to use different tricks now to get to the next level."
He said that wireless operators, when building the next generation of 4G wireless networks, will have to build more dense networks with towers spaced closer together. He said managing the interference among these radios will be a challenge but that engineers will be able to figure it out.
The elder Jacobs also suggested using femto cells, which create personal cell sites to boost cellular phone signals in homes or offices.
The younger Jacobs said that wireless operators also need to add more capacity to their backhaul networks. This is the part of the network that connects the wireless tower to the carrier's backbone network. And the problem today is that many connections from the cell towers to the backbone don't have enough capacity to support the traffic coming from within the cell sites.
"With data there are large peak to average ratios," Paul Jacobs said. "Data traffic is very bursty, which means you need more head room in the backhaul network."
But even with increased capacity throughout the network, wireless operators will also have to manage their networks to handle the growing data traffic. Paul Jacobs added that the industry must be careful to avoid overly burdensome regulation that could interfere with this traffic management. He also said strict Net neutrality rules could hamper the development of new business models, such as the one that's used for the e-reader by Amazon Kindle. Customers who buy the Kindle don't sign up to a wireless service. The service is bundled into the cost of the device.
Paul Jacobs' comments echoed sentiments expressed by Ralph de la Vega AT&T's wireless CEO during his speech on Wednesday. De la Vega referenced "broadband hogs," who use a disproportionate amount of bandwidth. And he said it is important, especially with respect to wireless networks, to make sure that a few subscribers don't eat up all the bandwidth so that there is nothing left for other customers.
The comments come as the FCC prepares to make its Net neutrality principles for an open Internet official regulation. Critics of Net neutrality regulation, such as the phone companies, say they don't want to lose the ability to manage their networks. And de la Vega said specifically that he doesn't believe that wireless and wireline networks should follow the same regulations.
But Chairman Genachowski said he understands that Internet providers and wireless operators in particular need to manage their networks.
"We recognize there are differences between wired and wireline network technologies," Genachowski said during a press conference Wednesday. "They are different networks. And because they are different, I have said the rules that are adopted need to allow for reasonable network management. But we need to have clear rules of the road for everyone regardless of how they access the Internet."
Paul Jacobs said Thursday that he thinks Genachowski understands the wireless industry's challenges. But he said that other regulators and politicians may need more of an education.
"During the Internet bubble there was all kind of funding for dark fiber," he said. "And I think people thought carrying those bits was free. But it's not. It's expensive. And I think the regulators may not realize how expensive it could get."
SAN DIEGO--In his first major address to the wireless industry, the new Federal Communications Commission chairman, Julius Genachowski, offered some good news for wireless operators at the industry's biannual gathering here Wednesday. But he reiterated the FCC's plans to apply new Net neutrality rules to wireless, a plan that has met resistance among the industry's major players.
FCC Chairman Julius Genachowski speaking at the CTIA 2009 fall show.
(Credit: Marguerite Reardon/CNET)As part of his speech, Genachowski announced a new initiative to add more spectrum for high-speed Internet access, and he offered assurances that the FCC will help speed up 4G wireless roll-outs by cutting through red tape for new tower deployments.
The industry has applauded these new initiatives. The CTIA, which is the trade organization for the wireless industry, recently sent a letter to the FCC asking it to consider opening up more spectrum for auction to help spur growth. And it has also been urging the FCC to speed up the process for building new towers.
Specifically, Genachowski said that the agency's main priority will be to make more spectrum available to wireless operators. And he said the FCC will impose a "shot clock" timetable for companies seeking permission to build cellular towers in local communities.
But Genachowski also said that he plans to keep the wireless Internet open. And he emphasized that the agency's Net neutrality principles, which will soon become official regulation, will also apply to wireless networks. While this latest bit of his agenda hasn't been popular with wireless operators, Genachowski said the agency's hope is to work closely with the industry.
"When we say that we haven't determined what we are going to do with handset exclusivity and we want your input, we mean it," he said. "The same applies to an open Internet. We want you to be engaged. We need you to be engaged. I am committed to running an expert agency that works for all Americans, that pursues high principles while recognizing the danger of dogma and the power of pragmatism."
Ralph de la Vega, CEO of AT&T Mobility and Consumer Markets, said during his keynote address Wednesday that he is happy to work with the FCC. He applauded the agency's efforts to open up more spectrum and to speed up the bureaucratic process for building and expanding wireless networks.
"We welcome the call for a fact-based approach to these issues," he said. "And we are pleased, (Genachowski) wants to listen to us. But in a competitive market, consumers will assess the value of our service. And they will pick the winners and losers. And that is the way it should be."
Ralph de la Vega, president and CEO of AT&T Mobility and Consumer Markets
(Credit: Marguerite Reardon/CNET)De la Vega pointed out the company's latest effort to keep its network open by allowing voice over IP services such as Skype to run on the iPhone. AT&T has the exclusive deal in the U.S. to carry the popular Apple smartphone on its network.
Genachowski said he appreciates AT&T's announcement. And he said this was good news for consumers.
But he said more work needs to be done. And even though Net neutrality is a priority at the agency, he said that allocating more spectrum and adding capacity to the wireless network is the No. 1 concern at the agency. He said that mobile data usage is exploding. And by 2013 U.S. consumers will use nearly 400 petabytes per month of wireless data compared with 6 petabytes per month in 2008.
"You don't have to know what a petabyte is to know that that's a game-changing trajectory," he said. "Spectrum is the oxygen of our mobile networks. While the short-term outlook for 4G spectrum availability is adequate, the longer-term picture is very different. I believe that that the biggest threat to the future of mobile in America is the looming spectrum crisis."
He proposed that the FCC will look at secondary markets to add more spectrum and will look to make its spectrum policies more flexible to encourage the use of unlicensed spectrum. He also said the FCC will encourage the use of smart antennas and femtocells.
But most importantly, Genachowski said that the FCC must reallocate spectrum currently being used for other purposes. He said that carriers have told the FCC that they need anywhere from 40MHz to 150MHz each to bring wireless broadband to consumers.
"It takes years to reallocate spectrum and put it to use," he said. "But we have no choice. We must identify spectrum that can best be reinvested in mobile broadband."
Genachowski also said that the FCC has heard the industry's call to help it work with local communities to get new cell phone towers approved much more quickly to help them build their next-generation wireless networks.
"We at the FCC understand the many challenges operators face in (building) networks," he said. "We are ready to help you cut through red tape and overcome these hurdles."
While the industry was happy to hear the good news that the FCC is willing to help it address some of its most pressing issues, leaders such as de la Vega resisted the agency's plans to extend Net neutrality principles to the wireless market.
Genachowski said it was imperative that the agency keep wireless broadband networks open to encourage more innovation. And he tried to allay fears that the FCC would impose arcane rules that would stifle innovation and investment.
"The goal of the proceeding will be to develop sensible rules of the road," he said. "Rules clear enough to provide predictability and certainty, and flexible enough to anticipate and welcome ongoing technological evolution."
But AT&T's de la Vega argued that imposing the same policy rules on wireless networks as it applies to wired networks is not a good idea. And he said that it is unfair for the FCC to impose any rules on wireless operators who have already spent billions of dollars buying licenses for wireless spectrum.
"The rules should not change after the auction," he said. "How can you expect companies to invest billions of dollars if you change the rules? The rules were clear in the 700MHZ auction for the next generation of wireless services. And these rules should not change now after the money has been spent. What would that say about the integrity of the 700MHz auction?"
AT&T is accusing Google of being a hypocrite when it comes to Net neutrality because it blocks certain phone calls on its Google Voice service.
The carrier has written a letter to the Federal Communications Commission claiming that Google has violated the agency's Net neutrality principles, which Google has long supported. Google defended its position in a blog post written by Richard Whitt, Google's main lobbyist and telecommunications lawyer in Washington, that basically said AT&T is comparing apples and oranges.
In a letter to the FCC filed on Friday, AT&T said Google is violating the fourth principle in the FCC's Internet Policy Statement, which calls for fair competition among providers of networks, applications, services, and content, as it blocks telephone calls made using Google Voice service to certain rural communities.
"By openly flaunting the call-blocking prohibition that applies to its competitors, Google is acting in a manner inconsistent with the spirit, if not the letter, of the FCC's fourth principle contained in its Internet Policy Statement," Robert Quinn, AT&T's senior vice president focusing on federal regulation, said in a statement. "Ironically, Google is also flouting the so-called 'fifth principle of nondiscrimination' for which Google has so fervently advocated."
In his blog post Friday afternoon, Google's Whitt fired back with an explanation. He acknowledged that Google is blocking calls to some rural regions. He said the company is doing that because certain local telephone carriers in rural areas charge AT&T and other long-distance companies especially high rates to connect calls to their networks.
Because they are small, rural phone companies are allowed to charge connection fees that are about 100 times higher than the rates that large local phone companies can charge. But in a practice known as traffic pumping, some of these rural carriers are sharing revenue with adult chat services, conference-calling centers, party lines, and others that are able to attract lots of incoming phone calls to their networks. The rural carriers charge the high rates and then split the revenue with these partners.
In 2008, AT&T and other long-distance phone companies complained to the FCC about the practice. Because most customers of AT&T, Verizon Communications, and Qwest Communications pay a flat fee for unlimited local and long-distance calls, these carriers are often saddled with the added costs associated with connecting calls in these regions. AT&T said it had cost them as much as $250 million in 2007.
The FCC has suspended the rural companies' rates and proposed rules to permanently ban traffic pumping. But the docket is still open on the issue.
Whitt explained that Google Voice, which allows people to keep one phone number and redirects phone calls over the Internet, is also subject to these high rates. But he said the rules that apply to traditional phone companies do not apply to Google.
AT&T and other traditional phone companies are prohibited from blocking phone calls to any number because they must abide by common carrier laws, which require infrastructure providers, such as phone companies, to allow anyone who wants to use their networks access to that "public" infrastructure. The concept of a common carrier is supposed to ensure that the public retains access to fundamental services that use public rights of way, such as telephone service or roadways.
Google says these rules don't apply to Google Voice for several reasons. For one, Google Voice is a software application that rides on infrastructure built by other companies. It is a free service. And it is not intended to be a replacement for traditional telephone service. In fact, the service requires that users have a landline phone or a wireless phone.
AT&T says that if Google argues for Net neutrality, then it must be expected to abide by common carrier rules applied to telephone services.
"While Google argues for others to be bound by Net neutrality rules, it argues against itself being bound by common carriage," Quinn said in a statement. "Such a contradiction highlights the fallacy of any approach to Internet regulation that focuses myopically on network providers, but not application, service, and content providers."
Google's Whitt fired back that AT&T is trying to equate common carrier laws, which apply to infrastructure, to Net neutrality regulation, which is about keeping the Internet open to all applications and devices.
"AT&T is trying to make this about Google's support for an open Internet, but the comparison just doesn't fly," he said in his blog. "The FCC's open Internet principles apply only to the behavior of broadband carriers--not the creators of Web-based software applications. Even though the FCC does not have jurisdiction over how software applications function, AT&T apparently wants to use the regulatory process to undermine Web-based competition and innovation."
While this particular public spat between AT&T and Google may seem trivial and arcane to some, it is yet another example of a brewing battle between the two giant companies, which appear to be on a collision course.
Google has long been a supporter of an open Internet. It was Google's lobbying efforts that convinced the FCC to include an open network provision as a condition in the 700MHz auction. And the company strongly supports Chairman Julius Genachowski's ambitions to make the current FCC Net neutrality principles official regulation. Google has also been pushing the FCC to open up excess bandwidth between broadcast TV channels known as "white spaces" available to the public for free.
On all of these issues, AT&T and other phone companies have opposed Google.
It's clear that the phone companies are leery of Google's intentions. They see Google as a potential competitor someday. Some bloggers and industry watchers have speculated that this is the reason Google Voice was rejected as an application for the popular Apple iPhone, which runs exclusively in the United States on AT&T's wireless network.
In July, the FCC asked Apple and AT&T to explain why Google Voice had been rejected. Google told the FCC that it was Apple that rejected Google Voice for the iPhone App Store.
The FCC isn't commenting yet on AT&T's most recent letter, nor is it commenting on Google's blog response. But a representative of Chairman Genachowski acknowledged that the agency has seen AT&T's letter and is reviewing it. So stay tuned for more FCC filings and Google blog posts. This is surely not the last of it.
The wireless industry is gearing up to fight new Net neutrality rules that the Federal Communications Commission is formulating to keep the Internet open.
On Monday, FCC Chairman Julius Genachowski gave a speech at the Brookings Institute in Washington, D.C., outlining plans to turn the agency's principles for open Internet access into official regulation.
In addition to making sure that network operators cannot prevent users from accessing lawful Internet content, applications, and services of their choice, or attaching unharmful devices to the network, Genachowski wants to add two more rules.
The first would prevent Internet access providers from discriminating against particular Internet content or applications, while allowing for reasonable network management. The second principle would ensure that Internet access providers are transparent about the network management practices they implement.
Broadband providers such as AT&T, Comcast, and Verizon Communications have opposed regulation or new laws that would dictate how they could run their networks. Up until this point, the Internet has been free of any regulation. And these companies would like to keep it that way.
That said, the nation's two biggest phone companies, AT&T and Verizon, have accepted the principles outlined by the FCC, when it comes to their wired broadband networks. Even though they don't think additional regulation is needed, they have agreed in principle with keeping their broadband networks open.
But the regulation that Genachowski is proposing will not apply to just wireline broadband networks, such as DSL and cable modem service. It will also apply to wireless services. And this is where the major phone companies will likely focus their opposition to the FCC's plans for new regulation.
Julius Genachowski
(Credit: LaunchBox Digital)Verizon and AT&T, which operate the nation's largest and second-largest cell phone networks, respectively, say the rules should not apply to wireless Internet access.
"AT&T has long supported the principle of an open Internet and has conducted its business accordingly," Jim Cicconi, AT&T's senior vice president of external and legislative affairs, said in a statement. "We were also early supporters of the FCC's current four broadband principles and their case-by-case application to wired networks."
But Cicconi went on to say that the principles and new legislation should not apply to the wireless market.
"We are concerned, however, that the FCC appears ready to extend the entire array of Net neutrality requirements to what is perhaps the most competitive consumer market in America: wireless services," he said.
He argues that wireless networks differ from wireline broadband networks because bandwidth is more limited on a wireless network. And he said that imposing new rules on how carriers operate their wireless networks would stifle investment.
This is a sentiment echoed by the CTIA, the wireless industry's trade association. The group argues that the open network provision in the 700 MHz spectrum auction caused many operators to stay away from the auction. In the end, only two companies bid for the C Block licenses: Google and Verizon. And the group notes that these licenses "sold for significantly less" than other licenses in the auction.
Verizon, which ended up winning the C Block auction in that auction, also believes that regulation is unnecessary. The company's vice president of regulatory affairs, David Young, said in a panel after Genachowski's speech that these rules will be difficult to implement in the wireless market because of the capacity constraints on wireless networks.
"On a wireline broadband network, you know where your customer is," he said. "So you can build capacity to handle the peak demands. But on a wireless network, you have a crowd converge on a site that suddenly has 10 times or 100 times the users competing for the same resources. "
Young said Verizon is committed to providing open access on its wireline broadband network, as well as its wireless network. He pointed to the fact that Verizon is now building a new 4G wireless network using the C Block spectrum it acquired in the 700 MHz auction. And as required by the FCC, it will allow users to attach any device and access any application on this new network. In effort to show Verizon's commitment to open access, Young also highlighted Verizon's efforts to open its 3G cellular network through its open development initiative.
"Our customers want an open experience," he said. "They want more choices, which is why we allow third-party developers and are providing developers complete access to our network. But our concern is that these new regulations, which apply regulation to the Internet for the first time, could have unintended consequences."
During his speech, Genachowski addressed this issue.
"I recognize that if we were to create unduly detailed rules that attempted to address every possible assault on openness, such rules would become outdated quickly," he said. "But saying nothing--and doing nothing--would impose its own form of unacceptable cost."
While it is true that Verizon has made its 3G network more open, it still requires device manufacturers to "certify" their products for the network, which means that Verizon still has the ability to accept or deny devices that run on its network. As for new applications, Verizon is still in the practice of disabling some features, such as Wi-Fi, on certain phones that operate on its nonopen traditional 3G wireless network.
Still, consumer advocates applaud Verizon's attempts at openness. But they point out that other wireless providers have not taken similar steps.
" I'd like to give credit to Verizon," Ben Scott, policy director for the consumer group Free Press, said during the panel discussion at the Brookings Institute event. "They have made a lot of positive steps toward openness. But that is not universally true of all carriers. Skype (and other applications) are still blocked on other carrier networks."
Indeed, services such as Skype, which allows users to make free and low-cost phone calls over an Internet connection, and Google Voice, which allows users to use to a single phone that follows them, regardless of which voice network they use, have been blocked by certain carriers. The FCC is already investigating why Google's voice service was rejected by Apple for the popular iPhone.
But Net neutrality supporters say it is critical for the new regulation to apply to wireless, as well as to wireline, services because in the future, most people will access the Internet via wireless devices. And as wireless operators launch new 4G networks that increase capacity and network download speeds, even more mobile devices will become Internet-enabled.
While incumbent wireless providers may oppose regulation on wireless Internet access, newer players support it. Clearwire, which is building a nationwide 4G wireless network, using spectrum from Sprint Nextel, and investment from Comcast, Time Warner Cable, Google, and Intel, fully supports the FCC's efforts.
"Clearwire applauds the chairman's efforts to safeguard an open Internet and his desire to strike a balance between consumers' need for open, rich access to the Internet and appropriate network management practices," Mike Sievert, chief commercial officer for Clearwire, said in a statement. Clearwire's 4G WiMax technology, business model, and operations embody openness for access, applications and devices."
At the end of the day, Net neutrality supporters say regulation is needed to keep the Internet open because there is simply not enough competition in the market to ensure that service providers play fair.
"If consumers had a wide choice of broadband service providers, preserving an open Internet might not be such a critical issue," Vint Cerf, Google's chief Internet evangelist, wrote in a blog post he published Monday. "Unfortunately, the vast majority of Americans have few (if any) choices in selecting a provider. As a result, these providers are in a position to influence whether and how consumers and producers can use the on-ramps to the Internet--and we've already seen several examples of discriminatory actions or threats that impair openness."
While many would agree that more competition is needed in the wireline broadband market, where most consumers have access to at most two broadband service options, many would disagree that competition does not exist in the wireless industry.
"Unlike the other platforms that would be subject to the rules, the wireless industry is extremely competitive, extremely innovative, and extremely personal," Chris Guttman-McCabe, vice president of regulatory affairs for CTIA, the wireless industry's trade association, said in a statement.
But the FCC is already investigating the state of competition in the wireless market. Even though there are four major nationwide carriers--AT&T, Verizon Wireless, Sprint Nextel, and T-Mobile USA--the majority of the market is controlled by two carriers. And their dominance is increasing.
In the second quarter of 2009, AT&T added 1.4 million new wireless subscribers, for a total of 79.6 million subscribers. Verizon Wireless also added 1.1 million new subscribers during the second quarter, for a total of 87.7 million subscribers. Meanwhile, smaller competitors such as Sprint Nextel lost subscribers.
"If your definition of a competitive market is based on what we see in the wireline market, where there are two competitors, then yes, wireless is a competitive market," Scott said. "But if you look at the wireless market comprehensively, and you aren't just counting providers, then you'll see the market power is very concentrated."
As expected, Federal Communications Commission Chairman Julius Genachowski on Monday outlined a plan to keep the Internet open.
In a speech given at the Brookings Institute, Genachowski proposed that the FCC turn its four principles of network openness official into regulation. And he suggested that the FCC add two more "principles" as part of these new rules.
The existing principles can be summarized this way: Network operators cannot prevent users from accessing lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.
Now Genachowski is proposing two new principles. The first would prevent Internet access providers from discriminating against particular Internet content or applications, while allowing for reasonable network management. The second principle would ensure that Internet access providers are transparent about the network management practices they implement.
Genachowski tried to alleviate fears that the FCC will overstep its bounds and create rules that hamper innovation.
"I am convinced that there are few goals more essential in the communications landscape than preserving and maintaining an open and robust Internet," he said. "I also know that achieving this goal will take an approach that is smart about technology, smart about markets, smart about law and policy, and smart about the lessons of history."
The debate over so-called Net neutrality began heating up about three years ago, when congressional leaders first held hearings on potential laws to ensure that Internet service providers couldn't monkey with traffic. There is no clear definition of the term "Net neutrality," but in general it refers to the concept that Internet users should have unfettered access to content and services. In other words, service providers should not be allowed to either impede or favor access to particular sites or applications.
The discovery that the nation's largest cable operator, Comcast, had slowed down certain kinds of peer-to-peer traffic on its network fanned the flames and sparked public outrage over such practices.
But the fight to create new laws or regulation to protect Net neutrality languished after the FCC publicly admonished Comcast for violating its open Internet principles. These principles aren't regulation and the FCC is somewhat powerless in imposing any real punishment for violating the rules. Still, the slap on the wrist coupled with public outcry was enough to get Comcast to change its practices.
Getting to "greater transparency"
Genachowski reasoned that the principles now need to be actual regulation, and that broadband providers need to know the rules of the road and need to know that they must adhere to rules to ensure open access for everyone.
"We cannot afford to rely on happenstance for consumers, businesses, and policymakers to learn about changes to the basic functioning of the Internet," he said. "Greater transparency will give consumers the confidence of knowing that they're getting the service they've paid for, enable innovators to make their offerings work effectively over the Internet, and allow policymakers to ensure that broadband providers are preserving the Internet as a level playing field."
But large broadband providers such as AT&T, Verizon Communications, and Comcast have opposed new regulation or laws protecting Net neutrality. They argue that imposing new rules would prevent them from managing their networks. And they also argue it would prevent them from introducing tiered pricing to their service line-up.
Genachowski addressed these issues in his speech as well. He assured service providers that the FCC would examine violations of these Net neutrality rules case by case. He also said that the rules are not intended to prevent network operators from handling congestion on their networks. And he specifically said that broadband providers would be able to manage networks when they are congested. He also said that service providers could introduce new tiered services, so long as there is enough Internet capacity to allow for open access to the rest of the Internet.
"I recognize that if we were to create unduly detailed rules that attempted to address every possible assault on openness, such rules would become outdated quickly," he said. "But saying nothing--and doing nothing--would impose its own form of unacceptable cost."
Genachowski also made it clear that the Net neutrality rules he plans to make regulation will be applied to wireless provider, too.
"It is essential that the Internet itself remain open, however users reach it," he said. "The principles I've been speaking about apply to the Internet however accessed."
Genachowski said that the FCC would issue a Notice of Proposed Rulemaking at the its October meeting. And he said the Commission will be seeking input and feedback from anyone interested in contributing to the process of making the rules. For example, he said, the FCC would be looking for input on how to determine whether network management practices are reasonable, what information broadband providers should disclose about their network management practices and how the rules apply to differing platforms, including mobile Internet access services.
As part of the announcement, the FCC launched a new
New government rules that support Net neutrality, specifically rules that prevent Internet service providers from selectively blocking sites from their networks, are expected to be unveiled in Washington on Monday, according to a report in the Wall Street Journal.
During a speech on Monday, FCC chairman Julius Genachowski is expected to unveil a new rule that would require all Internet providers--including wireless carriers--to use "reasonable" network-management practices in dealing with Internet traffic, unnamed sources told the WSJ.
The carriers have argued against such rules, noting that not all sites are created equal and that some, with their heavy data usage, are creating network traffic jams. But open-Internet advocates say that Net neutrality rules are years past due. In a statement, Gigi B. Sohn, president of Washington-based Public Knowledge, said:
The Internet was created and grew up under strict non-discrimination rules. Those same ideas are as valuable today as they were 10 years ago. Having rules in place will bring a degree of certainty that will help both carriers and consumers alike. Carriers will know what is allowed and what is not; consumers will be relieved to know they will be able to have access to any content and service on a non-discriminatory basis. We are confident that Net Neutrality rules will not hamper investment, as some critics have charged. Rather, as in the past, they will encourage investment in the kinds of innovation and technology that will help move our economy forward.
The new rule would go before the full commission for a vote next month. The WSJ notes that the three democratic members of the five-person commission support Net neutrality.
This story originally appeared on ZDNet's Between the Lines.
