Deconstructing the Google-Verizon Framework

I’ve just published a long analysis for CNET of the proposed legislative framework presented yesterday by Google and Verizon.

The proposal has generated howls of anguish from the usual suspects (see quotes appearing in Cecilia Kang, “Silicon Valley criticizes Google-Verizon accord” in The Washington Post; Matthew Lasar’s “Google-Verizon NN Pact Riddled with Loopholes” on Ars Technica and Marguerite Reardon’s “Net neutrality crusaders slam Verizon, Google” at CNET for a sampling of the vitriol).

But after going through the framework and comparing it more-or-less line for line with what the FCC proposed back in October, I found there were very few significant differences.  Surprisingly, much of the outrage being unleashed against the framework relates to provisions and features that are identical to the FCC’s Notice of Proposed Rulemaking (NPRM), which of course many of those yelling the loudest ardently support.

At the outset, one obvious difference that many reporters and commentators keep missing (in some cases, intentionally), is that the Google-Verizon framework has absolutely no legal significance.  It’s not a treaty, accord, agreement, deal, pact, contract or business arrangement—all terms still being used to describe it.  It doesn’t bind anyone to do anything, including Google and Verizon.

All that was released yesterday was a legislative proposal they hope will be taken up by lawmakers who actually have the authority to write legislation.  But you’d think from some of the commentary that this was the Internet equivalent of the secret treaty between Germany and Russia at the start of World War II.  Some commentators sound genuinely disappointed that something more nefarious, as had been widely and wildly reported last week, didn’t emerge.

Summary – Compare and Contrast

Let’s start with the similarities, described in more detail in the CNET piece:

• Both propose neutrality rules that are nearly identical, including the no blocking for lawful content, no blocking lawful devices, network management transparency, and nondiscrimination.  Of these, only the wording of the nondiscrimination rule is different (more on that below).

• Both limit the application of the rules to principles of reasonable network management.

• Both exclude from application of the rules certain IP-based services that may run on the same infrastructure but which are offered to business or consumer customers as paid services, such as digital cable or digital voice today and others perhaps tomorrow.  The NPRM calls these “managed or specialized services,” the framework refers to them as “differentiated services.”

• Both propose that the FCC enforce the rules by adjudicating complaints on a “case-by-case” basis.

• Both recognize that some classes of Internet content (e.g., voice and video) must receive priority treatment to maintain their integrity, and don’t consider such prioritization by class to be a violation of the rules.

• Both encourage the resolution of network management and other neutrality related disputes through technical organizations, engineering task forces, and other kinds of self-regulation, much as the Internet protocols have always been developed and maintained.

• Both exclude from application of the net neutrality rules any content or applications or devices that are not “lawful.”  This means that network operators can block, throttle, or otherwise constrain user activities that involve, notably, copyright infringement.  Unlicensed file sharing of movies and music, in other words, will not be insulated by neutrality rules.  (Ironically, Comcast’s blocking of the BitTorrent protocol started the current round of neutrality unrest, even though nearly all of BitTorrent uses at the time were not “lawful.”)  See EFF’s concerns on this point.

Again, much of the ire raised at the framework relates to aspects for which there is no material difference with the NPRM.

Now let’s get to the differences:

• The Google-Verizon framework would exclude wireless broadband Internet from application of the rules, at least for now.  Though the NPRM recognized there were significant limits to the existing wireless infrastructure (spectrum, speed, coverage, towers) that made it more difficult to allow customers to use whatever bandwidth-hogging applications they wanted, the NPRM came down on the side of applying the rules to wireless.  This was perhaps the most contentious feature of the NPRM, judging from the comments filed.

Google has notably changed its tune on wireless broadband.  In the joint filing with the FCC on the NPRM, the companies acknowledged this was an area where they held opposite views—Google believed the rules should apply to wireless broadband, Verizon did not.  Now both agree that applying the rules here would do more harm than good, if only until the market and technology evolve further.

• The framework would deny the FCC the power to expand or enhance the rules through further rulemakings.  Though the framework is admittedly not at its clearest here, what Google and Verizon seem to have in mind is that Congress, not the FCC, would enact the neutrality rules into law and give the FCC the power to enforce them.

But the FCC would remain unable to make its own rules or otherwise regulate broadband Internet access, the current state of the law as was most recently affirmed by the D.C. Circuit in the Comcast case.  The framework, in other words, joins the chorus arguing against the FCC’s effort to reclassify broadband under Title II and also imagines the NPRM would not be completed.

Reasonable Network Management

Let me just highlight one area of common wording that has received a great deal of negative feedback as applied to the framework and one area of difference.

Consider the definitions of “reasonable network management” that appear in both documents.

First, the NPRM:

Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

We understand the term “nondiscriminatory” to mean that a broadband Internet access service provider may not charge a content, application, or service provider for enhanced or prioritized access to the subscribers of the broadband Internet access service provider, as illustrated in the diagram below. We propose that this rule would not prevent a broadband Internet access service provider from charging subscribers different prices for different services.

Reasonable network management consists of: (a) reasonable practices employed by a provider of broadband Internet access service to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content; and (b) other reasonable network management practices.

Now, the Google-Verizon framework:

Broadband Internet access service providers are permitted to engage in reasonable network management. Reasonable network management includes any technically sound practice: to reduce or mitigate the effects of congestion on its network; to ensure network security or integrity; to address traffic that is unwanted by or harmful to users, the provider’s network, or the Internet; to ensure service quality to a subscriber; to provide services or capabilities consistent with a consumer’s choices; that is consistent with the technical requirements, standards, or best practices adopted by an independent, widely-recognized Internet community governance initiative or standard-setting organization; to prioritize general classes or types of Internet traffic, based on latency; or otherwise to manage the daily operation of its network.

Note here that the “unwanted by or harmful to users” language, for which the framework was skewered yesterday, appears in nearly identical form in the NPRM.

Nondiscrimination

Here’s how the FCC’s “nondiscrimination” rule was proposed:

Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

And here it is from the framework:

In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users.  Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.

That certainly sounds different (with the addition of “undue” as a qualifier and the requirement of a showing of “meaningful harm”), but here’s the FCC’s explanation of what it means by nondiscrimination and the limits that would apply under the NPRM:

We understand the term “nondiscriminatory” to mean that a broadband Internet access service provider may not charge a content, application, or service provider for enhanced or prioritized access to the subscribers of the broadband Internet access service provider….We propose that this rule would not prevent a broadband Internet access service provider from charging subscribers different prices for different services..

We believe that the proposed nondiscrimination rule, subject to reasonable network management and understood in the context of our proposal for a separate category of “managed” or “specialized” services (described below), may offer an appropriately light and flexible policy to preserve the open Internet. Our intent is to provide industry and consumers with clearer expectations, while accommodating the changing needs of Internet-related technologies and business practices. Greater predictability in this area will enable broadband providers to better plan for the future, relying on clear guidelines for what practices are consistent with federal Internet policy. First, as explained in detail below in section IV.H, reasonable network management would provide broadband Internet access service providers substantial flexibility to take reasonable measures to manage their networks, including but not limited to measures to address and mitigate the effects of congestion on their networks or to address quality-of-service needs, and to provide a safe and secure Internet experience for their users. We also recognize that what is reasonable may be different for different providers depending on what technologies they use to provide broadband Internet access service (e.g., fiber optic networks differ in many important respects from 3G and 4G wireless broadband networks). We intend reasonable network management to be meaningful and flexible.

Second, as explained below in section IV.G, we recognize that some services, such as some services provided to enterprise customers, IP-enabled “cable television” delivery, facilities-based VoIP services, or a specialized telemedicine application, may be provided to end users over the same facilities as broadband Internet access service, but may not themselves be an Internet access service and instead may be classified as distinct managed or specialized services. These services may require enhanced quality of service to work well. As these may not be “broadband Internet access services,” none of the principles we propose would necessarily or automatically apply to these services.

In this context, with a flexible approach to reasonable network management, and understanding that managed or specialized services, to which the principles do not apply in part or full, may be offered over the same facilities as those used to provide broadband Internet access service, we believe that the proposed approach to nondiscrimination will promote the goals of an open Internet.

Though the FCC doesn’t use the words “undue” and “meaningful harm,” the qualifying comments seem to suggest something quite similar.  So are the differences actually meaningful in the end?  Meaningful enough to generate so much sturm and drang?  You make the call.

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