Esbin’s Early History of the Net Neutrality Debate in U.S.

My colleague Barbara Esbin, a Senior Fellow and Director of the Center for Communications and Competition Policy at The Progress & Freedom Foundation, was asked to pen a short history of the net neutrality wars in the U.S. for a French publication, La Lettre de l’Autorité.  Her essay provides an excellent, concise overview of where we’ve come from and where we might be heading on this front.  I’ve pasted the entire essay down below, or you can download the PDF here.

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Net Neutrality Regulation in the United States
by Barbara Esbin

PFF Progress Snapshot
Release 4.21 October 2008

The United States moved closer to “Net Neutrality” regulation this year when the Federal Communications Commission found that Comcast, a cable broadband Internet service provider, violated a set of Internet policy principles the FCC adopted in 2005 by limiting peer-to-peer (P2P) traffic. The ruling was the culmination of a ten-year effort that began as a call for wholesale “open access” to the cable platform for third-party Internet service providers. Requests for open access first emerged in 1998 when the FCC considered AT&T’s acquisition of cable operator TCI. The FCC rejected open access, but the issue quickly re-emerged in a subsequent proceeding to determine the appropriate regulatory classification of cable Internet service. Depending on how the FCC categorized cable Internet service, it would either be subject to telecommunications “common carrier” requirements, “cable service” requirements, or treated as a then-unregulated “information service.”

In 2002, the FCC classified cable Internet service as an “information service.” This meant that the telecommunications common carrier requirements — that service be provided upon request, without unreasonable discrimination as to rates, terms and conditions of service — would not apply to cable Internet services. The FCC’s decision was upheld by the U.S. Supreme Court in NCTA v. Brand X. Afterwards, advocates of open access re-directed their efforts away from advocating wholesale access for third-party ISPs, and towards rules aimed at consumer rights to a “neutral network” or “net neutrality.”

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Posted by Adam Thierer on Oct. 8, 2008 | Link | Comments |

Bandwidth Cap Hysteria & the Alternative

Over at TechDirt, Tom Lee has a sharp critique of Muayyad Al-Chalabi’s much-circulated paper (via GigaOm) opposing bandwidth caps. Make sure to read Tom’s entire essay, but here’s the key take-away:

this whitepaper merely amounts to a complaint that a free lunch is ending. Bandwidth is clearly an increasingly limited resource. And in capitalist societies, money is how we allocate limited resources. The alternate solutions that Al-Chalabi proposes to the carriers on pages 6 and 8 — like P2P mirrors, improved service and “leveraging… existing relationships with content providers” — either assume that network improvements are free, would gut network neutrality, or are simply nonsense.

Indeed. But Tom generally agrees that “Comcast’s bandwidth cap is a drag” and that “Instead of disconnection, there should be reasonable fees imposed for overages. They should come up with a schedule defining how the cap will increase in the future. And the paper’s suggestion of loosened limits during off-peak times is a good one.”

Well, those are three different things but I generally agree with all of them. Let me just repeat, however, my strong endorsement of the first option — metering at the margin — and again highlight the optimal way to do it from an economic perspective. As I noted in one of my many previous articles about metering for bandwidth hogs:

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Posted by Adam Thierer on Oct. 4, 2008 | Link | Comments |

The FCC’s Comcast/Net Neutrality Order & Commissioner McDowell’s Dissent

On Wednesday, the FCC released the decision (PDF, text) it adopted back on August 1 holding that Comcast had violated the FCC’s 2005 net neutrality principles (PDF, text) by “blocking” peer-to-peer file-sharing traffic on its network using the popular program BitTorrent.  Paragraphs 3-11 lay out the FCC’s (still-disputed) finding of facts.

Commissioner McDowell’s Scaliaesquely scathing dissent (PDF pp 61-67) provides an accessible summary of the order and should be required reading for everyone on all sides of the issue.  Despite having been provided with the final version of the order only the night before its release, McDowell distills the order into six key points, rejecting the Commission’s reasoning on all but one point (jurisdiction):

  1. Was a complaint properly brought against Comcast under FCC rules? No, FCC rules allow the kind of complaint brought against Comcast to be brought only against common carriers, which cable modem operators are not.
  2. Does the FCC have jurisdiction over Internet network management? Yes, under the Supreme Court’s 2005 Brand X decision.
  3. Does the FCC have rules governing Internet network management to enforce? No, “the Commission did not intend for the [2005] Internet Policy Statement to serve as enforceable rules but, rather, as a statement of general policy guidelines,” nor can the Commission “adjudicate this matter solely pursuant to ancillary authority.”
  4. What standard of review should apply? No, even assuming this case had been properly brought under enforceable rules, the Commission applied what amounts to a “strict scrutiny” standard–something unprecedented for reviewing private, rather than governmental, action.
  5. Was the evidence sufficient to justify the Commission’s decision? No, the “FCC does not know what Comcast did or did not do” and should have “conduct[ed] its own factual investigation” rather than relying on “apparently unsigned declarations of three individuals representing the complainant’s view, some press reports, and the conflicting declaration of a Comcast employee.”  The evidence did not suggest any discriminatory motive behind Comcast’s network management techniques
  6. Is the decision in the public interest? No.  “By depriving engineers of the freedom to manage these surges of information flow by having to treat all traffic equally as the result of today’s order, the Information Superhighway could quickly become the Information Parking Lot.”  Comcast had already resolved its dispute with BitTorrent through outside arbitration.  The FCC should “allow the longstanding and time-tested collaborative Internet governance groups [already working to establish processes for resolving such disputes] to continue to produce the fine work they have successfully put forth for years.”

Posted by Berin Szoka on Aug. 23, 2008 | Link | Comments |

FCC’s Comcast decision was political failure

There’s been a fair amount of chatter on this blog (here, here, and here) about how to properly view the FCC’s recent Comcast decision. My take is that while everyone is focused on questions of market failure, we are in the midst of a huge government failure. Read my full explanation here.

Posted by Sonia Arrison on Aug. 8, 2008 | Link | Comments |

Cerf on managing networks & the need for industry discussion

Google’s Chief Internet Evangelist Vint Cerf, one of the fathers of the Net, has a very thoughtful post up on the Google Public Policy Blog today asking “What’s a Reasonable Approach for Managing Broadband Networks?” He runs through a variety of theoretical approaches to network load management. There’s much there to ponder, but I just wanted to comment briefly on the very last thing he says in the piece:

Over the past few months, I have been talking with engineers at Comcast about some of these network management issues. 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. 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.

I found this of great interest because for the last few months I have been wondering: (a) why isn’t there more of that sort of inter- and intra-industry dialogue going on, and (b) what could be done to encourage more of it? With the exception of those folks at the extreme fringe of the Net neutrality movement, most rational people involved in this debate accept the fact that there will be legitimate network management issues that industry must deal with from time to time. So, how can we get people in industry — from all quarters of it — to sit down at a negotiating table and hammer things out voluntarily before calling in the regulators to impose ham-handed, inflexible solutions? What we are talking about here is the need for a technical dispute resolution process that doesn’t involve the FCC.
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Posted by Adam Thierer on Aug. 4, 2008 | Link | Comments |

If Bandwidth Is Abundant, It Can’t Be Scarce, So Why Can’t We Have Net Neutrality?

Web Pro News’ Jason Lee Miller seems to think he’s hoisted my colleague Bret Swanson, and The Progress & Freedom Foundation in general, on our own collective  petard.  Bret had responded to Tim Wu’s NYT op-ed by questioning Wu’s argument for developing “alternative supplies of bandwidth” to free us from the tyranny of the OPEC-like broadband cartel:

Unlike natural resources such as oil, which, while abundant, are at some point finite, bandwidth is potentially infinite. The miraculous microcosmic spectrum reuse capabilities of optical fiber and even wireless radiation improve at a rate far faster than any of our macrocosmic machines and minerals. It is far more efficient to move electrons than atoms, and yet more efficient to move photons. Left unfettered, these technologies will continue delivering bandwidth abundance.

Miller suggests that this response to Wu destroys arguments Bret and others at PFF have made against net neutrality regulation–a crusade led by Wu (who taught me Internet law, as it happens):

So what [Swanson is] saying is bandwidth scarcity is a notion invented by internet service providers and wireless providers to jack up prices and provide excuses for interfering with competing services on their networks. Nice. In a weird way, Swanson focuses so hard on disproving Wu’s analogy one way, he misses how the analogy is proved in another: a few organizations (government or not) controlling an important resource and forcing artificial scarcity in order to control the market for that resource is called a cartel.

Miller’s “Gotcha!” rests on the seemingly undeniable premise that broadband can’t be both abundant (as Bret argues) and scarce (such that ISPs must management traffic on their networks, however non-neutral that may be).   But in fact, this seeming contradiction is inherent in the very nature of the Internet–and the way Internet access is currently priced. Continue reading this post »

Posted by Berin Szoka on Aug. 1, 2008 | Link | Comments |

Is Comcast discriminating against BitTorrent?

The AP reports today the results of an investigation it conducted on Comcast’s “traffic shaping” practices as they relate to BitTorrent. The bottom line, if the AP is correct, is that Comcast interferes with packets coming from both ends of a BitTorrent communication. Comcast allegedly inserts messages pretending to be one or the other end requesting that the transmission be reset. Susan Crawford has a technical explanation on her blog.

If this is a consistent policy, this is much worse than the meaningless one-off snafus such as Madison River, Pearl Jam, or NARAL. While this is technically legal, and should always be, it’s a bit indefensible. No doubt Comcast and every other access provider should have the ability to manage their networks to ensure that a minority of users doesn’t slow down or increase costs for the majority. However, they should be transparent about what they do.

As the AP reports it (and I’m really looking forward to clarification), “Comcast’s technology kicks in, though not consistently, when one BitTorrent user attempts to share a complete file with another user.” If that means any BitTorrent user, even if they’re not a heavy user, then the policy seems over-broad to me. In its acceptable use policy,1 Comcast reserves the right to take any measures it deems necessary to deal with subscribers who use too much bandwidth (although how much is too much is not clearly defined). But if the AP is right, this is targeting a specific application, not specific users.

What this all points out to me, however, is that we don’t need regulation prohibiting these kinds of network management practices. The problem is not the practice, but the lack of disclosure, and as Google’s Andrew McLaughlin has said, it’s more of an FTC issue than an FCC one. The other issue this brings up is Adam’s favorite: Why not just have a Ramsey two-part tariff style metering after instead of interfering with legitimate applications?

  1. See the relevant portions of the acceptable use policy here. ↑

Posted by Jerry Brito on Oct. 20, 2007 | Link | Comments |

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