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.
Seriously?
(Credit: Matt Hickey)Go to ESPN360.com. Click on the link at the top that says "Watch Now," and see what happens. You'll either be let in to the viewing area or, more likely, told that you can't access the content because of your Internet service provider.
Why? Ars has it that Disney, the parent company of ESPN360.com, has partnered with certain ISPs to provide exclusive access to its premium content. If your ISP isn't a Disney/ESPN partner, tough luck. This, of course, violates the ideals of Net neutrality.
The Net neutrality position is, in a nutshell, that no matter who you get your Internet access through you should have access to the same Internet as everyone else.
But the large corporations have started using their influence to sell features to the large ISPs at prices that smaller ISPs can't match. Besides the Net neutrality issues, this is troubling.
And not just for the customers: A pop-up actually recommends to customers who don't match the viewing criteria that they change their ISP to one of its partner providers so they can. It actually says:
ESPN360.com is available at no charge to fans who receive their high-speed Internet connection from an ESPN360.com-affiliated Internet service provider. ESPN360.com is also available to fans that access the Internet from U.S. college campuses and U.S. military bases.Your current computer network falls outside of these categories. Here's how you can get access to ESPN360.com...Switch to an ESPN360.com affiliated Internet service provider or to contact your Internet service provider and request ESPN360.com. Click here to enter your ZIP code and find out which providers in your area carry offer ESPN360.com
With the exception of college students and the military, Disney wants you to switch your ISP to get full content. This blatant throwing of corporate weight has gained the attention, though, of an unlikely group: the American Cable Association, a group that has historically been against Net neutrality is lobbying the FCC to intervene on their behalf. Now that the mega-corps are using their power to push the smaller cable providers aside, it seems they've realized the threat, and have asked the FCC to investigate such actions.
On the surface this seems like a fairly small issue. One site working with a handful of large providers will not kill the Web as we know it. That being said, this kind of thing is a slippery slope, and Net neutrality proponents often point out that if this kind of behavior is tolerated now, it will make laws to curtail acts like this harder to enforce in the future. We'll follow this story and keep abreast of any others like it that pop up.
The fight for Net neutrality is young, and this particular action might end up being an important precedent. Content partners offering special services depending on which provider customers use hasn't worked well in the cell phone industry and nothing points to it working in the cable industry, either.
Starting October 1 customers of Comcast's residential data services will have an invisible barrier on their monthly data usage. Under the new guidelines of Comcast's Acceptable Use Policy announced Thursday, that cap will be set at 250 gigabytes per month, per account.
Users who go over the limit will get a courtesy call from Comcast's customer service for the first instance. However, under the new policy a second-time offense means the service is immediately suspended for an entire calendar year.
Surprisingly the company is not providing any tools to help users monitor their current usage. An FAQ on Comcast's support site simply suggests that customers do a "Web search" for bandwidth metering software that will track this amount for them. Going forward there may be plans to set up alerts over certain thresholds, or bundle some official tool as part of the company's starter software.
Comcast notes that the median usage for most residential customers falls somewhere between 2GB and 3GB, a number that is regularly broken within a matter of hours and sometimes minutes by customers taking advantage of streaming HD video and online backup services. The company breaks down basic usage numbers similar to what's seen on the marketing materials on a consumer hard drive:
* Send 50 million e-mails (at 0.05KB/e-mail)
* Download 62,500 songs (at 4MB/song)
* Download 125 standard-definition movies (at 2GB/movie)
* Upload 25,000 high-resolution digital photos (at 10MB/photo)
A far greater problem may be the slighting of cloud storage services that offer file transfer and backup. Services like Carbonite and Mozy let you back up and transfer the entirety of your computer's storage several times per month, which on many standard consumer machines can be in the hundreds of gigabytes.
Apple, too, is just at the beginning stages of MobileMe, a service that offers sync and file backup to multiple devices. Additionally, the rumored all-you-can-eat iTunes could drastically change how much downloading users are doing on a monthly basis.
So what do you think about this new limit? Let us know in the comments and the poll below.
Comcast reportedly plans to reduce Internet service to customers it deems to be using too much bandwidth, a move that comes on the heels of federal regulators ruling that the Internet service provider violated the law by throttling BitTorrent transfers.
To keep service flowing to other customers, Comcast plans to impede Internet speeds to its heaviest users for up to 20 minutes, Mitch Bowling, Comcast's senior vice president and general manager of online services, told Bloomberg in an interview Tuesday.
Instead of focusing on specific applications that may be hogging traffic, Comcast plans to determine "in nearly real time" whether a heavy user is causing congestion, Bowling said.
"If in fact a person is generating enough packets that they're the ones creating that situation, we will manage that consumer for the overall good of all of our consumers,'' Bowling said.
The move follows the Federal Communications Commission's ruling on August 1 that Comcast's throttling of BitTorrent traffic last year was unlawful--the first time any U.S. broadband provider has ever been found to violate Net neutrality rules. (The FCC released the text of that ruling Wednesday.) The FCC issued a cease-and-desist order and required the company to disclose to subscribers in the future how it plans to manage traffic.
Comcast, the largest cable provider in the U.S., has been under fire for months after it was discovered the company had been slowing down peer-to-peer traffic on its network. Comcast had said that its measures to slow BitTorrent transfers, which it voluntarily ended in March, were necessary to prevent its network from being overrun. At a public hearing in February, Comcast Executive Vice President David Cohen said, "Comcast may on a limited basis temporarily delay certain P2P traffic when that traffic has or is projected to have an adverse effect on other customers' use of the service."
Consumer groups were incensed by the tactic, and the FCC investigation ensued over whether Comcast had violated any of its Net neutrality principles.
Internet papa Vint Cerf said broadband speed limits rather than broadband data caps would be more useful in managing congested networks.
Vint Cerf, Google chief Internet evangelist
(Credit: Google)Cerf, who is Google's chief Internet evangelist, on Monday wrote a post on the company's public policy blog blasting the idea of applying data caps and metered rate plans. Instead he proposed a plan that limits network speeds.
His comments come just days after the Federal Communications Commission's symbolic ruling against Comcast for violating the agency's Net neutrality principles. The FCC came down hard on the cable operator for blocking access to peer-to-peer file-sharing protocols such as BitTorrent.
Comcast has argued that it was only targeting protocols such as BitTorrent in order to manage its network, which has been flooded with P2P traffic. This is a common complaint among Internet service providers, particularly cable operators, whose networks were originally built for one-way communication and also share capacity at the neighborhood level.
In response to the controversy, some ISPs are looking into consumption-based billing or putting volume caps on the amount of data that subscribers can use. Time Warner Cable started testing such a metered bandwidth service in Texas. The way it works is that customers pay for a certain amount of data capacity per month that can be either uploaded or downloaded using their broadband connection. And if they go over the cap in a given month, subscribers are charged $1 per megabyte.
Cerf, who helped create the TCP/IP protocol used as the foundation of the Internet, says that he doesn't think applying a "volume cap" is very "useful." He also said that metered pricing instead of the flat fee plans "could end up creating the wrong incentives for consumers to scale back their use of Internet applications over broadband networks."
That said, Cerf acknowledges that ISPs, such as Comcast, need to be able to manage their networks. But instead of using volume caps, he thinks ISPs should introduce transmission caps. These would allow users to purchase access to the Internet at a given minimum data rate, which would be guaranteed even during times of congestion. Subscribers could download or upload data of any size, anytime they want, at the guaranteed rate. When the network isn't congested, like in the middle of the night, users could get faster speeds. But during times of congestion, the broadband pipe would be limited to the minimum guaranteed rate.
This might mean that at peak times, it could take much longer to upload or download content. If subscribers get frustrated with the slower speeds, they could upgrade to a higher tier of service with a faster minimum speed. Or ISPs could offer a service that allows users to pay for short bursts of speedier connections.
The technology to create such a service has existed for some time. And network operators have been offering corporate customers data connections with minimum data rates spelled out for years.
The problem is that carriers don't want to sell consumer broadband services this way for a couple of reasons. For one, broadband providers prefer to advertise peak speed connections rather than minimums. A service that offers up to 10Mbps sounds a lot sexier than one that guarantees a 1Mbps download.
But network operators typically oversubscribe their networks to squeeze more profit out of their customers. The idea is that all subscribers don't use the network at the same time, typically leaving enough capacity so that when they do use the network, most users can get close to the maximum capacity offered. Selling services with minimum bandwidth guarantees means that operators wouldn't be able to oversubscribe the network as much, because during times of heavy congestion they might not be able to deliver the minimum data rates. It would also force these providers to enter into strict service level agreements with individual customers, which could potentially cost them a lot of money if they can't deliver the minimum guaranteed speeds.
It's difficult to say whether broadband providers will heed Cerf's recommendations, especially since the cable operators, due to how their networks are designed, are the ones in greater need of help. The phone companies, which have always had networks built for two-way communication, have also been aggressively upgrading their networks with fiber, which offers greater capacity.
Verizon Communications has been building a fiber-to-the-home network, which will allow the company to continually upgrade capacity by simply changing some of the hardware on the network. And AT&T has been upgrading its network, pushing fiber deeper into neighborhoods to provide more capacity over shorter loops of its last mile copper networks.
That said, Cerf writes in his blog that he's encouraged by the talks he has had thus far with Comcast.
"I've been pleased so far with the tone and substance of these conversations, which have helped me to better understand the underlying motivation and rationale for the network management decisions facing Comcast, and the unique characteristics of cable broadband architecture," he said. "And as we said a few weeks ago, their commitment to a protocol-agnostic approach to network management is a step in the right direction."
The Federal Communications Commission came down hard on cable operator Comcast when it said its network management practices were illegal. But what will the FCC's move mean for the rest of the industry and the ongoing debate over Net neutrality?
It's still too early to say exactly what the long-term affect will be. Policy wonks from the phone companies say the decision puts to rest any notion that Net neutrality legislation is needed, but Net neutrality proponents believe that a legal challenge from Comcast will necessitate the need for laws that make it clear the federal government has a role in keeping the Net open.
As for the industry, few operators will have to change their practices to comply with the FCC's clarified framework of its Net neutrality principles. But in the long run, the ruling could give some ISPs the excuse they've been seeking to impose metered billing as a way to control network usage and help fund network upgrades.
One thing is clear, debates around how Internet service providers should be managing their networks and what role the government should take in enforcing the criteria are only just beginning.
Net neutrality legislation: Still a toss up
The nation's two largest phone companies, AT&T and Verizon Communications, used the FCC's ruling to reinforce their stance that Net neutrality laws are unnecessary.
"Regardless of how one views the merits of the complaint against Comcast, the FCC today has shown that its national Internet policies work, and that they are more than sufficient for handling any Net neutrality concerns that may arise," said Jim Cicconi, senior executive vice president of external and legislative affairs for AT&T. "We have argued repeatedly that there is no need for federal legislation in this area, and today's FCC action proves that point."
Verizon's top policy wonk, Tom Tauke, echoed his AT&T counterpart's sentiment.
"Without making a judgment on the substance of today's ruling, it is clear that the Federal Communication Commission is prepared to uphold its broadband principles," he said in a statement. "With both the FCC and the Federal Trade Commission (FTC) engaged in oversight of Internet usage and practices, new legislation and more regulation, with all their unintended consequences, are not needed."
It's hardly surprising that the two big phone companies would make this argument. They have been at the forefront of opposing federal laws limiting what service providers can do on their networks.
Tim Wu, a law professor at Columbia University and a supporter of Net neutrality, agreed that the FCC's decision has taken some of the wind out of the sails of proponents of Net neutrality legislation.
"The once felt urgency for congressional action obviously subsided once (FCC Chairman) Kevin Martin emerged as a consumer's rights advocate." Wu said in an e-mail.
But the fight for legislation protecting the openness of the Net may not be dead. If Comcast challenges the FCC's decision in court, as many expect it will, that will likely call into question whether the FCC even has the authority to issue such an order or even require the company to comply with the order. And it's very likely that supporters of Net neutrality legislation will take this opportunity to ask Congress to clarify that the federal government does have authority.
Representative Edward Markey (D-Mass.), chairman of the House Subcommittee on Telecommunications and the Internet, has introduced legislation with Rep. Chip Pickering (R-Miss.) to establish a policy framework for keeping the Net open. On Friday, he applauded the FCC's reprimand of Comcast and acknowledged that the cable operator has already begun to work with the industry to correct its practices. But he emphasized that a federal law is still needed to ensure that entrepreneurs and consumers can be assured that they will get open access to the Internet.
"I intend to continue monitoring practices in the industry and pressing for passage of my legislative framework for addressing these issues in the months ahead," he said in a statement.
What it means for the industry
While there's some evidence suggesting other ISPs have been using tactics similar to the ones used by Comcast to manage their networks, no one has filed an official complaint with the FCC. Still, Time Warner Cable says it is reviewing the FCC ruling to make sure it doesn't have to alter its network management practices.
But most ISPs will be fine, according to Jay Monahan, general counsel for the peer-to-peer video provider Vuze. He said that most network management practices used by ISPs today do not violate the FCC's framework that was explained by Chairman Kevin Martin during the FCC's open meeting on Friday. Specifically, Martin emphasized that network management must be reasonable and not arbitrary.
"The vast majority of network management practices that are being used today will be permissible under the FCC's framework," Monahan said. "The ones that are problems are ones that are too expansive. They target specific protocols and applications even when there's no network congestion. But techniques used to identify heavy users and reduce their traffic during peak loads, is in principle permissible."
That said, the FCC's ruling could put a kibosh on ISPs plans to implement some kinds of technology, such as deep packet inspection, which looks into IP packets and identifies particular applications and protocols.
Still, some experts fear that ISPs could use the FCC ruling as an excuse to justify imposing metered billing, which could cost consumer more money in the long run.
Time Warner Cable is already testing bandwidth metering with new customers in Beaumont, Texas. In this model, consumers can subscribe to one of three tiers of service. For $29.95 a month, they get 5 gigabytes of downloads and uploads on a service that offers 768 Mbps downloads and 128 Mbps uploads. For $44.95 they can get 20 gigabytes of downloads and uploads on a service that offers speeds of 7 Mbps downstream and 512 Mbps upstream. And for $54.95, users can get 40 gigabytes of downloads and uploads per month at speeds of 10 Mbps/1Mbps. If customers go over their allotted monthly downloads and uploads, they are charged $1 per gigabyte.
So far, Time Warner has only tested the metering application and hasn't yet begun charging customers for their excess usage.
Dudley, Time Warner's spokesman, said the intent of the metered model is not to limit bandwidth usage on the network. Instead, Time Warner hopes that the model will allow heavy-network users to help fund the company's network upgrades.
To date, no other major ISPs in the U.S. have said they plan to test metered services. But some big ones, such as AT&T may be considering it.
"We're always evaluating our broadband plans and services, but have nothing new to announce today regarding our pricing structure," said Michael Balmorris, a spokesman for AT&T. "With that said, given the usage trends we're seeing, usage-based pricing is one way to deal fairly with Internet usage, which is very uneven among broadband users."
Critics say that ISPs who imply they are being forced to offer metered billing to pay for network upgrades are being disingenuous.
"When people make the argument that ISPs will have to meter traffic, it's a false choice," Monahan said. "Going to a tiered model is an economic approach. Some operators are choosing to go in that direction, but there are plenty that can use reasonable network management methods to manage their networks."
Columbia's Wu said ISPs that turn to metering are merely trying to make more money. And he added that claims of congested networks are overplayed in an effort to scare lawmakers away from supporting legislation that carriers claim would limit their ability to manage their networks.
"In my mind the idea of a giant congestion 'crisis' strikes me as fear mongering," he said. "It is certainly true that there is great demand for bandwidth, and firms will have to build more capacity if they want to meet demand and/or begin pricing differently. But I'm not certain it reflects the reality that most Internet users are experiencing."
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