Free Press: Internet Too Important to Tie Up in Legal Limbo
Communications Daily (subscription) reported today on the avalanche of lawsuits being filed challenging the FCC’s Comcast “net neutrality” order. Four were filed this week in four different U.S. appeals circuits — the lucky court that will actually decide the case will be decided by lottery.
The story quotes Ben Scott of Free Press, the energizer rabbit of pro-regulation media groups, decrying Comcast’s appeal. “The Internet is too important to let Comcast tie it up in legal limbo,’ he says. “Congress should act now to pass Net Neutrality laws that clear up any uncertainty once and for all.”
Huh? On what planet, exactly, is Free Press based? Put aside for the moment the question of whether Comcast is responsible for the legal chaos that has ensued from the FCC’s decision to regulate the way it manages Internet traffic. Strangely enough, when Free Press petitioned the Commission to get involved, I didn’t hear them decrying the “legal limbo” it would cause.
But even more jaw-dropping is the idea that Congress could “clear up any uncertainty” by adopting its own Internet regulations. The mind boggles. The last major congressional foray into communications policy was the Telecommunications Act of 1996, which spawned over half a decade of litigation. There are still children of telecom lawyers going to college off the fees generated by that one.
And that legislation was a relative piece of chocolate cake compared to the torte of net neutrality. Proponents of mandated neutrality — which Commissioner Robert McDowell has likened to a regulatory Rorschach test — can’t even agree on what it is. Lord know how long it would take the courts to sort it out — if ever they are able to.
Free Press is right, of course, to worry about the endless litigation which will — and already is — being caused by FCC Internet regulation. Rather than even more rules from Congress, however, the solution is for the FCC to reverse course on the regulation it unwisely imposed last month.
Another 4 months, still no FCC Video Competition Report
Well, another four months have passed since I last asked this question, but let me pose it again: Where exactly is the FCC’s Video Competition Report and why is it taking so long to get it out the door? It wouldn’t have anything to do with a certain Chairman Ahab still trying to get his cable whale, would it? No, of course not. I’m sure there’s a perfectly rational reason that this 13th Annual report is now something like 18 months past due altogether. Right.
And keep in mind that the data in the 13th report is for a period ending on June 30, 2006, so whenever the report finally comes out the data in it will be well over two years old! That won’t exactly reflect the true state of the video programming market considering the significant changes we have since that time, especially the continued explosive growth of online video, VOD, and DVRs.
The reason that I have been making a big deal out of this issue is because this gets to the question of just how “scientific” and “independent” of an agency the FCC really is. We are talking about facts here. Basic data. This is stuff the FCC should be routinely collecting and reporting on a timely basis — indeed that is what Congress requires the agency to do in this specific case. And yet the agency can’t do it because its Chairman is on this Moby Dick-like crusade against the cable industry. By the time this 13th annual report finally sees the light of day, the 15th annual report might be due! Outrageous. (And you wonder why many of us here are so skeptical about empowering the FCC regulating the Internet via Net neutrality mandates! If an over-zealous Chairman can politicize this issue, just think what might happen once we give the agency the authority to regulate the Net.)
Anyway, down below you will find the paper that Barbara Esbin and I wrote about the issue four months ago. Perhaps we should place a little ticker somewhere here on the site that counts each day that passes as we wait for the Commission to produce this report. We can take bets on when the agency’s data holdout will end.
Continue reading this post »
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):
- 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.
- Does the FCC have jurisdiction over Internet network management? Yes, under the Supreme Court’s 2005 Brand X decision.
- 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.”
- 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.
- 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
- 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.”
McCain’s Tech Policy a Mixed Bag at Best
Braden has noted the release of John McCain’s tech policy–rightly decrying McCain’s socialistic community broadband concept. But far more outrageous, in my view is this bit of doublethink. First, the good part we should all applaud:
John McCain Has Fought to Keep the Internet Free From Government Regulation
The role of government in the Innovation Age should be focused on creating opportunities for all Americans and maintaining the vibrancy of the Internet economy. Given the enormous benefits we have seen from a lightly regulated Internet and software market, our government should refrain from imposing burdensome regulation. John McCain understands that unnecessary government intrusion can harm the innovative genius of the Internet. Government should have to prove regulation is needed, rather than have entrepreneurs prove it is not.
Amen! Even a hardened Ron Paul/Bob Taft/Grover Cleveland/Jack Randolph-survivalist/libertarian-crank like me can rally behind that banner. But then this self-styled champion of deregulation pulls a really fast one:
John McCain Will Preserve Consumer Freedoms. John McCain will focus on policies that leave consumers free to access the content they choose; free to use the applications and services they choose; free to attach devices they choose, if they do not harm the network; and free to chose among broadband service providers.
That sure sounds nice, but it’s all Wu-vian code for re-regulation, not de-regulation. You might recognize that McCain is talking obliquely here about the FCC’s 1968 Carterfone doctrine, which has consumed much attention on the TLF (see this piece in particular).
McCain then insists that he will be a bold leader for “good” regulations: Continue reading this post »
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.
Continue reading this post »
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 »
Excellent discussion on broadband metering
Om Malik has a hot-headed screed on his blog today about the supposed evils of capitalism, full of tales of corporate conspiracies and the such. But I love the way most of his reader have taken him to task for calling on FCC Chairman Kevin Martin to become a true “21st century Robin Hood who is looking out for the U.S. Internet consumer” by “putting an end to this metered broadband nonsense right now.”
Just jump past Om’s irrational rant and go right the really excellent discussion taking place among his readers in the comments. It’s the best discussion I have seen on the issue in a long time.
Tim Wu’s “Mother-May-I” World of Net Neutrality Regulation
Tim Wu has an absurd piece in today’s New York Times comparing America’s broadband marketplace to OPEC. This really is quite outrageous, beginning with the fact that OPEC is a GOVERNMENT-RUN cartel. Wu also had a comment in the Washington Post today saying that he didn’t think broadband metering was an outrage. Well, that’s nice. I’m happy that we have Tim’s permission to experiment with new business models for financing broadband networks going forward!
This is indicative of what we can expect in the future once Net neutrality laws get on the books: A world of incessant “Mother may I?” permission-based forms of preemptive Internet regulation. Tim and his radical band of regulatory advocates over at Free Press will incessantly petition the FCC to review each and every business model decision and encourage the unelected bureaucrats at the agency to manage the Internet to their heart’s content.
And what does Tim offer for an alternative vision of the way the world should work since he doesn’t believe private markets can handle the job? Well, it’s back to the Big Government drawing board for more tax-spend-and-subsidize solutions! “Amsterdam and some cities in Utah have deployed their own fiber to carry bandwidth as a public utility,” he says. Yeah, that’s the promised land. After all, it’s working out soooooo well at the municipal level. Please.
Our First Net Neutrality Law: Congrats to our Big Gov’t Opponents
It is a difficult thing for me to say, but I am man enough to do it: I must congratulate our intellectual opponents on their amazing victory in the battle to impose Net neutrality regulations on the Internet. With the Wall Street Journal reporting last night that the FCC is on the verge of acting against Comcast based on the agency’s amorphous Net neutrality principles, it is now clear that the folks at the Free Press, Public Knowledge, and the many other advocates of comprehensive Internet regulation have succeeded in convincing a Republican-led FCC to get on the books what is, in essence, the nation’s first Net Neutrality law. It is quite an accomplishment when you think about it.
Even though, as Jerry Brito has noted, “the FCC has no authority to enforce a non-binding policy statement,” it is clear that is not about to stop the activist-minded FCC Chairman Kevin Martin or his allies on the Left from advancing the cause of arbitrary, bureaucratic governance of the Internet. And that means the “Hands Off the Net” era will gradually start giving way to the “Hands All Over the Net” era. As I told Bob Fernandez of the Philadelphia Inquirer when he called to interview me for a story about these developments:
“This is the foot in the door for big government to regulate the Internet,” [...] “This is the beginning of a serious regulatory regime. For the first time, the FCC is making law around net neutrality.”
And now that they have that foot in the door, I fully expect that it will be exploited for everything it’s worth to grow the scope of the FCC’s coercive bureaucratic authority over all things digital. The Left is salivating at the prospect of imposing their top-down vision of forced egalitarianism on the the Net, while the Right is figuring out how quickly they can exploit this to impose speech controls on anything they don’t want the public to see or hear.
It is a historic moment in the history of communications and media regulation, and freedom has lost—miserably. The tentacles of the regulatory Leviathan have grown infinitely longer and a little bit more of the Net’s freedom died today. And, again, what’s most amazing about this is that we have a Republican FCC to thank for that. So much for the GOP being for smaller government.
Two Declarations of Independence
Today we should remember not only Virginia planter and lyricist of American libertarianism Thomas Jefferson’s 1776 Declaration of Independence, but also Wyoming cattle-rancher and Grateful Dead lyricist John Perry Barlow’s 1996 Declaration of the Independence of Cyberspace. While everyone can find something to quibble with in it, especially given the changes of the last twelve years, Barlow’s Declaration remains the best creed of Internet Freedom yet written. Now more than ever, as Internet regulation gathers steam under the banner of preserving “Net Neutrality,” it is well worth re-reading as a stirring call against regulation:
Google Endorses Speed-based Prioritization - What About Net Neutrality?
Google has begun including the “load time factor” into the quality score for ads on its AdWords program. This means that “Keywords with landing pages that load slowly may get lower Quality Scores (and thus higher minimum bids). Conversely, keywords with landing pages that load very quickly may get higher Quality Scores and lower minimum bids.”
Google provides two reasons for the change: “First, users have the best experience when they don’t have to wait a long time for landing pages to load. Interstitial pages, multiple redirects, excessively slow servers, and other things that can increase load times only keep users from getting what they want: information about your business. Second, users are more likely to abandon landing pages that load slowly, which can hurt your conversion rate [and thus lower profits for both the advertiser].”
One could easily imagine that some might complain that Google is “discriminating” against slower-to-load pages, and even hypothesize that this would introduce a systemic bias towards sites that can afford faster server throughput. True, this change makes the AdWords system non-”neutral” in ways that will benefit some advertisers over others.
But so what? Google is simply engaging in smart management of their network: Giving priority to ads that load faster introduces a strong incentive for all advertisers to speed up their pages in any manner possible. This small change in pricing structure could have broader effects on the efficiency of Internet browsing for all users–at least in terms of building home pages that load faster–particularly if other advertising platforms follow suit. Continue reading this post »
Google to Offer Broadband Users Tools to Monitor ISP Traffic Management
The Register reports that Google is developing yet another suite of free tools for broadband users–this time aimed at allowing users to monitor traffic-management/shaping conducted by their ISP.
“We’re trying to develop tools, software tools…that allow people to detect what’s happening with their broadband connections, so they can let [ISPs] know that they’re not happy with what they’re getting - that they think certain services are being tampered with,” Google senior policy director Richard Whitt said this morning during a panel discussion at Santa Clara University, an hour south of San Francisco.
The article provides a short-but-interesting history of how Google’s views on Net Neutrality have evolved in recent years and about the debate inside the company as to whether to governmental prohibition of traffic management/prioritization by enshrining some conception of Net Neutrality in law. Today, of course, the company has become perhaps the most outspoken corporate defender of Net Neutrality principles. Google senior policy director Richard Whitt shows no sign of rethinking Google’s commitment to those principles, but suggests that the monitoring tools being developed by Google might fundamentally change the calculus of the debate:
“The forces aligned against us are real. They’ve been there for decades. Their pockets are deep. Their connections are strong with those in Washington,” he said. “Maybe we can turn this into an arms race on the application software side rather a political game.”
As Verizon’s Link Hoewing observes, these tools promise to increase dramatically the transparency of network management practices. This increased transparency will provide a clearer picture of what ISPs are actually doing, something that is largely a subject of speculation today, while helping to remove the current uncertainty that fuels sometimes wild speculation about the “death of the Internet” and other calamities in a world without Net Neutrality. Psychologically, transparency may thus remove much of the need for perceived need for Net Neutrality mandates.
But, of course, as defenders of traffic prioritization argue, there will be instances where ISPs “deviate from Net Neutrality principles” by prioritizing certain traffic to enable advanced voice and video services over more intelligent networks. (Read, for example, George Ou’s post taking issue with aspects of The Register’s story.) Of course, some will surely point to such instances as further evidence of the perceived “need” for regulation, but the fact that these practices will be rmore readily apparent to more users than ever before will in fact provide three powerful alternative mechanisms for disciplining ISP traffic management.
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?
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