Broadband & Neutrality Regulation

Tarring and Feathering Comcast

by Hance Haney on July 28, 2008 · 14 comments

The Federal Communications Commission, according to the Wall Street Journal, is prepared to stop Comcast from blocking peer-to-peer file sharing later this week — although the commission won’t fine the company because it wasn’t “previously clear what the agency’s rules were.”

Now, according to Multichannel News, comes word that there is a wireless broadband provider who explicitly prohibits all uses that may cause extreme network capacity issues, and “explicitly identif[ies] P2P file sharing applications as such a use.”

I am not familiar with the wireless broadband provider’s practices in this area (nor even of its relevant terms of service, even though I am a customer). However, Comcast delayed file sharing only when necessary to relieve network congestion. Absent congestion, Comcast permitted file sharing. A cable broadband network typically experiences congestion during the early evening hours. Which means that if file sharers were willing to avoid those hours they could share files on the Comcast network the rest of the time.

So it will be interesting whether the FCC bans network management which prohibits file sharing, in which case cable and wireless networks could become congested to the annoyance of millions of ordinary users. Or whether it allows broadband providers to practice network management so long as they clearly disclose it, in which case file sharers may discover they can’t use a broadband wireless or cable connection to share files, ever. Or maybe the brilliant politicians at the commission will require disclosure in sufficient detail to enable hackers to defeat network management altogether, permitting congestion to reign but ensuring that providers, not the commission, will be blamed.

As everyone who reads this blog knows, the architecture of cable, wireless and wireline networks is completely different. Each have unique congestion challenges, and in the short term all providers must have flexibility to find appropriate solutions.

The key point is that all broadband providers are trying to increase bandwidth as fast as they can. The proper role for the commission is to eliminate barriers to investment, of which regulatory uncertainty is one of the most significant.

If a particular company, Comcast, is the target here primarily because it refused to pay certain political dues or tribute, as I suspect it is, we should acknowledge that and take the company’s side.

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McDowell: Collaboration Over Regulation

by Jim Harper on July 28, 2008 · 4 comments

Though Adam has already declared the end of the world (and himself “man enough” to admit it – let’s let others judge that, hmm, Adam?), FCC Commissioner Robert McDowell sounds a less dire, but still very cautionary note in this WaPo Op-Ed.

A taste:

If we choose regulation over collaboration, we will be setting a precedent by thrusting politicians and bureaucrats into engineering decisions. Another concern is that as an institution, the FCC is incapable of deciding any issue in the nanoseconds that make up Internet time. And asking government to make these decisions could mean that every few years the ground rules would change based on election results. The Internet might grind to a halt in such a climate. It would certainly die of clogged arteries if network owners had to seek government permission before serving their customers by managing surges of information flow.

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Telecom and Transportation Should Be Focus of Infrastructure Investments, Says Think Tank

by Drew Clark on July 28, 2008 · 5 comments

WASHINGTON, July 28 – By combining better public information, market mechanisms and smarter systems of subsidization, the government can play a positive role in funding infrastructure investments in telecommunications, according to three reports released Friday by the Brookings Institution.

The papers, released on Friday at an event that also featured an address by Virginia Gov. Tim Kaine, are part of a Brookings Institution initiative promoting investments in infrastructure – both physical, transportation investments, as well as new ways to spur improvements in the telecommunications infrastructure.

“No economy improves with a declining infrastructure,” said Kaine, a Democrat. “Unless you make that high-tech investment easy by telecom access, you won’t get” improvements in your state’s economic condition, he said.

Brookings, a liberal-leaning think tank, released the reports as part of an initiative dubbed the “Hamilton Project.” The project seeks to put forward policy ideas that “embrac[e] a role for effective government in making needed public investments,” according to the think tank.

Read the complete story at BroadbandCensus.com

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Our First Net Neutrality Law: Congrats to our Big Gov’t Opponents

by Adam Thierer on July 26, 2008 · 35 comments

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.

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Google and Comcast, sitting in a tree…

by Jerry Brito on July 24, 2008 · 2 comments

Tom Hazlett’s latest column in the FT tries to make us all pay more attention to the Clearwire deal. Even those of us here at the TLF have been remiss in following the venture. As Tom points out, the fact that open-spectrum and net-neutrality stalwarts such as Google and Intel are in bed with Comcast and Sprint tells us a lot. He writes:

Municipal Wi-Fi Adieu. When local government networks were the rage, circa 2003, their loudest corporate backer was Google. Broadband for all via “free” unlicensed spectrum, smart radios and just a gentle nudge from City Hall. Politicians from Philadephia to Portland drank the Kool-Aid. But Google just paid $500m to jump to the Clearwire ship. The change in strategy speaks volumes: municipal wi-fi is considered small opportunity for Google and no threat to Clearwire. Fleeing the “Spectrum Commons”. Five years ago, Intel was pressuring US regulators for more unlicensed bands. It won – the Federal Communications Commission dumped hundreds of MHz into the market. The bump was little noticed – short-range apps continued to work, but not much else developed. Meanwhile, wireless phone networks – providing wide area, mobile service – were booming. But regulators held off new allocations for a decade, starving the sector just when it was upgrading to high-speed data networks. New Clearwire boasts WiMAX, “wi-fi on steroids”, as its technological innovation, but note: this WiMAX runs on licensed frequencies. That is an economic choice, not a technical one. Only with the control afforded by exclusivity will these companies invest in the networks that, they hope, will make consumers sing. The “spectrum commons”? Been there, done that. This wireless broadband innovation aims to do what no one has done in unlicensed – and betting $14bn on it. Net Neutrality Not. Clearwire consortium members are not passive investors. Buying in, they become network friends with benefits. The cable ops will retail service. McCaw’s NextNet is the lead gear maker. Motorola supplies handsets. Intel’s chips are plugged in. And Google’s search engine gets its own button on the phones, a cute efficiency copied from the wildly popular DoCoMo network in Japan. If the NTT model, where the carrier extracts payment from mobile apps for a preferred spot on the wireless web, is “open” – then “open” all capitalists must be. Richly, NTT is a member in good standing in Google’s Open Handset Alliance.

Now, the question my friends on the other side will rightly ask is, where’s the beef? Here it is. Any ideas how fast it will grow?

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CWA Wants Better Broadband Data, As Does Internet for Everyone

by Drew Clark on July 17, 2008 · 5 comments

WASHINGTON, July 17 – Communications Workers of America this past week teamed up with a group of telecommunications companies, cable operators and non-profit groups to push for Congress to pass broadband data legislation.

In a Friday letter and a Monday press release, the groups wrote “to express [their] strong support for Congressional action to promote greater availability and adoption of broadband high-speed Internet services.”

They want “a national policy” to encourage more broadband deployment, and they cite economic statistics about broadband’s potential.

And, as a first step, these companies and CWA want Congress to pass the Broadband Census of America Act, H.R. 3919, or the Broadband Data Improvement Act, S. 1492.

Curiously, last month another large coalition announced a similar campaign. They call themselves Internet for Everyone.

Continue reading “CWA Wants Better Broadband Data, As Does Internet for Everyone“

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Want Better Broadband in America? Take the Broadband Census! (Commentary)

by Drew Clark on July 15, 2008 · 7 comments

The following commentary appears in the current issue of Opastco Advocate, a monthly newsletter published by the Organization for the Promotion and Advancement of Small Telecommunications Companies. Reprinted by permission.

Most Americans who have high-speed Internet can’t imagine life without broadband. How could you connect to the Internet of today without it? In today’s world, broadband is as basic as running water and electricity. And yet the U.S. is falling behind globally. As a technology reporter, I’ve been writing about the battles over broadband and the Internet for nearly a decade in Washington. Yet there is one fact about which nearly everyone seems to be in agreement: if America wants better broadband, America needs better broadband data.

That’s why I’ve recently started a new venture to collect this broadband data, and to make this data freely available for all on the Web, at http://BroadbandCensus.com.

The information and news that is available for free at BroadbandCensus.com is more important now than ever before. The FCC has just made important changes to how it will collect data from carriers. The agency may make even more significant changes in the near future. Public and private sector groups of all stripes are demanding, ever more loudly, that government take steps toward a national broadband policy. That cannot be done without solid information about broadband. Finally, many large carriers are beginning to implement plans to meter out bandwidth in tiers and with usage caps. This marketplace development makes the mission of an independent monitoring Website like BroadbandCensus.com even more critical.

Continue reading →

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Whatever Martin says, the FCC’s ‘Internet Policy Statement’ is not enforceable

by Jerry Brito on July 11, 2008 · 39 comments

According to the Associated Press, FCC Chairman Kevin Matin will circulate an order recommending enforcement action against Comcast “for violating agency principles that guarantee customers open access to the Internet.” Reports the AP,

Mr. Martin’s order would require Comcast to stop its practice of blocking, provide details to the commission on the extent and manner in which the practice was used and give consumers detailed information on how it planned to manage its network in the future.

Plain and simply put, the FCC has no authority to enforce a non-binding policy statement. If you’d care for the details, I dissected the issue at length in this comment to the FCC in its still-unresolved net neutrality proceeding. The take-away is this: In order for a rule to have the force of law, it must have been enacted in accordance with the Administrative Procedure Act, which requires notice to the public and an opportunity for comment and publication of the rule in the Federal Register. The Commission’s August 5, 2005 Internet Policy Statement that Martin is now trying to enforce was neither the result of notice-and-comment rulemaking, nor was it published in the Federal Register.

It may or may not be wise to promulgate the contents of the Internet Policy Statement as a binding legislative rule, and we can debate that when it’s proposed. But there must be an opportunity for input and a binding vote needs to take place before anyone can be held accountable to a statement.

As the D.C. Circuit in Batterton v. Marshall put it, the purpose of requiring notice and comment is “to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies.” The court quoted the legislative history of the APA stating that because of the unrepresentative nature of a regulatory agency, “public participation . . . in the rulemaking process is essential in order to permit administrative agencies to inform themselves, and to afford safeguards to private interests.”

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Broadband Internet Adoption Stalls, Regresses for Poor, Says Pew Report

by Drew Clark on July 2, 2008 · 11 comments

WASHINGTON, July 2 – Broadband growth in the United States has effectively stalled over the past five months, a possible victim of the economic slowdown, according to a report released Wednesday by the Pew Internet & American Life Project.

Some 55 percent of all adult Americans now have a high-speed internet connection, or a broadband connection, in their home, according to the report, “Home Broadband Adoption 2008.”

That number compares with 47 percent of adult Americans with broadband in early 2007, and 54 percent in December 2007. Hence broadband growth over the previous 12 or 13 months has dramatically tapered off.

The growth rate in broadband adoption from 2007 to 2008 was 17 percent. That compares favorably to the 12 percent growth recorded in the 2006 to 2007 timeframe, according to Pew’s annual studies in 2007 and 2008. Continue reading →

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The ‘Contradictory Ideals’ of Internet for Everyone campaign

by Adam Thierer on June 26, 2008 · 11 comments

Beyond what Harper already said about it, I was searching for the right words to express how silly I find the far-fetched rhetorical B.S. being flung about to describe this quixotic new “Broadband for Everyone” crusade. And then I found this great little comment by Steve Boriss over at The Future of News blog. He really nails the utopian silliness that animates this movement in his essay, “Net neutrality proponents’ ideals as contradictory as French Revolution’s“:

Government regulation always begins with a call from those who claim they are only trying to right some hard-to-argue-against wrongs, but whose consequences are poorly thought out. Today we learn of a new such party, InternetForEveryone.org, which has a mission so contradictory that it almost makes my head explode. Their ideals call to mind the French Revolutionists, who called for “liberty, equality, and fraternity,” not realizing that liberty and equality are incompatible — that making people equal requires liberty-suppressing force. The new group calls for guaranteed high speed Internet access for everyone (a basic right of all Americans, they say), lower usage prices, more competition, and more innovation. Tell me, if we force Internet providers to give access to everyone, then force them to charge less than the marketplace tells them they should, where will the money come from for innovation? And what would happen to the potential profits that might entice others to join in the competition? Guess it will have to come from taxpayers and that government will have to run the show. InternetForEveryone.org claims to be neutral on the net, but it is surely not neutral on government — they want a lot more of it.

Exactly. It’s ‘something-for-nothing’ economics meets utopian egalitarianism as applied to broadband. But, as Steve notes, there is no free lunch. Every time I debate one of the people or groups involved in this movement, I always ask questions like: What about incentives to invest and innovate? What role do they play in your model? Where is the risk capital going to come from to build these high-fixed cost networks going forward? How will those networks be upgraded over time? And so on.

And they never have any good answers. To the extent they have any answers at all, it always seems to come back to the idea of treating broadband networks like a lazy public utility. You know, because we’ve had so much success with those! And yet, this crowd seems wants to paint a revisionist history of public utilities and try to convince us that we are just ONE MORE muni fiber or muni wi-fi experiment away from getting it right! Uh-huh, sure we are. Meanwhile, taxpayers are bailing out those past failed experiments all over America right now.

The fundamental problem with the entire Net neutrality movement can be summarized as follows: They obsess about investment and innovation at the margin of networks but spend little time thinking about the preconditions for serious innovation and investment at the core of networks. Government micro-management ain’t ever going to get us where we need to be in that regard.