Open Letter to the Neutrality Regulators

Dear Neuts,

Telco abuse of Internet users is hypothetical, not real. There has only been one documented instance of arbitrary service blockage in the USA, the Madison River case which the FCC promptly stopped. In response to this case, they devised the “four freedoms”.

These principles are part of the COPE Act, which also gives the FCC the authority to levy fines up to $500,000 per infraction. The Stevens Senate bill directs the FCC to do a study of provider abuses and report back.

The sensible approach to regulation, in this sphere or in others, is to draft broad principles, set up an enforcement regime, and let case law evolve.

Once we see some actual abuse that isn’t covered by these provisions, Congress will still be in the business of drafting laws and we’ll be able to go ask for whatever approach is necessary to solve the real problems. What you people are proposing is pre-emptive legislation that will most likely do to the Internet what Bush’s pre-emptive war did to Iraq.

I appreciate your sentiments, and firmly believe that you have good intentions. But I’ve worked with legislative bodies before and have seen the unintended consequences that can flow from legislation that’s guided by too much emotion and not enough information.

There’s no immediate crisis here so the best thing course of action is to simply gather information. We all want a “neutral” network that enables innovation to flourish, and the fact that we’ve never really had one shouldn’t discourage us.

Networks are technical artifacts that improve with time, and even the Internet is not so perfect that we should freeze it.

In fact, the architects of the Internet made several design mistakes because of the model they chose to imitate, the early Ethernet. That system tried to do bandwidth management in a fully distributed manner with a clunky scheme of medium sensing, collision detection, and backoff. The Internet analogies are slow start, congestion, and backoff for TCP.

The early Ethernet model doesn’t work well under high load, and was abandoned in the late 80s after my colleagues and I on the IEEE 802.3 standards committee devised a scheme that ran Ethernet over twisted pair wiring into a hub or switch. It turns out that you can manage bandwidth better from a central point that knows who wants to do what when than you can in a totally random, distributed system. The system we devised is the Ethernet that we all use today.

When we re-designed the Ethernet, we faced the same aesthetic criticisms that the neutrality people are heaping on the phone companies today: our system wasn’t democratic, it wasn’t reliable, it couldn’t ensure fairness, and it wasn’t going to be cool with the FCC. But all those criticisms turned out to be groundless, and we now have 40 Gigabit Ethernet running on switch-based systems.

We fought the same battle when we designed the WiFi system. One faction wanted an Access Point-based system and another wanted an Aloha system that was fully distributed and all that. Once again, the network engineering work showed that an Access Point provided better performance to everyone than a distributed system that was constantly flailing for access to the network.

It’s about time that the architecture of the Internet was updated to reflect modern practices in network design where traffic is classified and moderated in points of intelligence that are distributed around the network. This sort of re-design, which was started by the MPLS and DiffServ people, will ultimately produce a network that can do more things better for more applications than the dated Vint Cerf design where the guy with the fattest pipe controls the network.

The original Interment was a fine piece of work given the limited knowledge of packet-switched networks in 1980, but we’ve learned a lot since then and consumers will benefit if some of this learning can be passed on the form of new networks with better performance and richer choices.

I think my networks are better than the old collision-based Ethernet that was the model for the TCP Internet, and a new Internet based on new LANs and WLANs would be better than the old one.

I’m biased, but so are that Cerf character and his fellow-traveler Sir Berners-Lee.

Whether you agree with me or not, I think the moral and decent thing to do is to offer consumers the opportunity to see which one they like better. That’s what we did with Ethernet, and the market responded strongly. There’s no shame in designing a system that works pretty well in its day but is ultimately replaced by a better one.

That’s the whole story of technology, so let’s not pre-judge the outcome.

Best wishes,

The Network Bunny

PS: Go read the Heritage Foundation’s paper on this question. It’s very edifying.

14 thoughts on “Open Letter to the Neutrality Regulators”

  1. Hey, Richard! Are you an attorney? Why in the name of Mike Tyson would you render opinions on the efficacy of COPE when we have experienced attorneys at our beck and call?

    After all of the “non-network engineers” that you’ve ripped for rendering opinions on net architecture, it’s amazing that you can spout interpretations of COPE without feeling the least bit embarrassed. If the stakes weren’t so high, it would be downright hilarious.

    Here’s attorney Harold Feld:

    “COPE… strips the FCC of any rulemaking authority. It limits the FCC to doing case by case adjudications on the principles…

    Those of us familiar with the history of the industry and the FCC understand this is just nuts. Prophylactic regulation in the 1970s, 1980s, and 1990s made it possible for people to develop the internet. If an emerging Amazon found it needed to file a complaint with the FCC to show that phone companies were blocking traffic to its website unless it paid up, or because the phone company had partnered with, they would have died before staff got around to denying the complaint for want of evidence. No venture capitalist would have invested in web services anymore than they invest in cable channels. Blogs like this would not have happened, because no one would have bothered to develop them.

    And we would never miss any of it, because we would never have known what we could have had.

    As if stripping the FCC of rulemaking weren’t bad enough, COPE also allows the cable and telco companies to charge third parties for “premium access” to subscribers, a behavior I call “Whitacre Tiering” after AT&T CEO Ed Whiatcre. As I’ve written before, I think Whitacre tiering would prove a disaster for democracy and a disaster for business (and, apparently, the banking and financial services industry are starting to agree)…”

    So, who are we to trust on COPE? An attorney with a background and experience in telecommunications or… you?

    Perhaps you could edify us on your legal, legislative, and/or judicial background in telecommunications law.

  2. So you’re back again, Doug Ross, as confused as ever. OK, let’s try and educate you.

    Christopher Yoo is a law professor at Vanderbilt and an opponent of the unprecedented regulatory regime proposed by Google, the Consumer’s Union, the Christian Coalition,, and others of similar ilk. I’d suggest you read his paper “Promoting Broadband through Network Diversity” in which he says the following:

    Once improving the competitiveness of the last mile becomes the central goal of broadband policy, it becomes clear that network neutrality is potentially problematic and counterproductive. Indeed, the term network neutrality is something of a misnomer: Adoption of any standardized interface has the inevitable effect of favoring certain applications and disfavoring others. For example, TCP/IP routes packets anonymously on a “first come, first served” and “best efforts” basis. As a result, it inherently disfavors applications that are less tolerant of variations in throughput rates, such as streaming media and Internet telephony (also known as voice over Internet protocol or VoIP), and is biased against network-based security features to protect e-commerce and ward off viruses and spam. It also favors innovation at the network’s edge over innovations in the network’s core even though, as the FCC has recognized, there is no reason to believe a priori that such a preference will always prove beneficial.

    Thus, contrary to what the nomenclature might suggest, network neutrality is anything but neutral. Indeed, using regulation to standardize interfaces has the unfortunate effect of putting the government in the position of picking technological winners and losers.

    footnote: There may be some types of local content that may be less subject to competition. As I will argue, the proper solution to problems, if any, related to access to such content is a targeted, case-by-case approach rather than a sweeping regulatory mandate that affects all content and applications.

    Understanding the ramifications of this issue requires one to have a background in both networking and regulation. As you should know by now, I’m a network engineer; I invented the variety of Ethernet that we use today and I contributed to the design of the WiFi and UWB networks. For several years I was also a part-time legislative lobbyist, invited to offer expert witness testimony to a joint hearing of four committees of the California legislature at one point. So I figure my background is better than that of most who have strong opinions in this area, but thanks for asking.

  3. Yoo’s paper is a nice deflection, but that has absolutely nothing to do with the efficacy of COPE. In fact, the after-effects of COPE and its ability to rein in the carriers are precisely the issues you raised.

    And, like I figured, you have literally zero background in interpreting the law.

  4. Doug Ross, I don’t enjoy finding your childish personal attacks on my blog. One more and I’ll cut off your commenting privileges.

  5. I try never to resort to personal attacks because I have a lot of respect for you professionally. I simply think that you have discounted the carriers’ history of non-innovation, suppression of last-mile alternatives, and aggressive use of lobbyists to the detriment of your arguments.

    Regarding Yoo, I choose to ignore carrier-funded jibber-jabber when we have indisputable proof that the net-neutral Internet has resulted in the most valuable and democratic communications architecture in the history of the world.

  6. Yoo was arguing for market-based solutions to technical dilemmas before the cable companies discovered him.

    Both your points above are attacks on the person or entity, not on the merits of their ideas. I won’t have that sort of thing here, so you’re toast.

  7. Regarding “net neutrality,” I think I’m seeing two separate issues conflated into one. As an engineer myself, I can accept as plausible the technical arguments for upgrading the Internet so as to provide for the needs of different kinds of traffic: low jitter for video, etc., beyond what was anticipated originally, based on the more “traditional” services such as email. Obviously there are matters of economics as well, although it is not clear (to me, as of the present time, at least) how best to resolve them.

    But the other issue, as I see it, and the one that arouses the opposition of the “net neutrality” advocates, is the specter of discrimination favoring large deep-pocketed content providers against the grass-roots users for whom the great virtue of the Internet has been its availability to anyone as a platform for expressing diverse viewpoints, with no conditions as to depth of anyone’s pockets. So perhaps the issue is not with the telcos themselves, but with their presumed readiness to make deals with the major content providers that would allow them to turn the Internet into another exclusive content-delivery channel, reducing it to something like a digital version of cable TV. I suspect that much of the noise on the subject may abate if some believable assurance against this possibility can be given.

  8. I think you’re correct that two issues have become confused. The complaints that animate the Save the Internet crowd deal with fears of censorship, but the regulations they’ve proposed in their various bills and amendments simply deal with QoS.

    I’m arguing against the content of the bills.

  9. Richard, just to clarify: Powell issued his “Internet Freedoms” speech a full year BEFORE the Madison River news came to light. See:

    Powell has since said that he does not agree with the Kevin Martin-led interpretation of his Freedoms (which were stated publicly last August), which added the de-fanging clause of “All of these principles are subject to reasonable network management.”


    Yours in keeping the facts straight,


  10. Trivial details, Paul.

    Madison River committed the Four Freedoms to regulatory law, which is a lot more important than some asshole giving a speech.

    Any network regulation that doesn’t have an exception for KEEPING THE NETWORK ALIVE is as stupid as those zero-tolerance for drugs laws that get kids kicked out of school for aspirin possession.

  11. Are the “facts” are a trivial matter? Actually the consent decree in Madison River didn’t even mention the Four Freedoms — and it never even touched on any real law. It basically said “you pay the govmnt $15K, and we won’t screw up your pending IPO with more legal pressure.” Go read it for yourself:
    and then tell me where the four freedoms are mentioned.

    The reality of the deal was that Madison River was floating an IPO to raise more cash, and Powell wanted one grand move on the way out. For 15K it was a cheap deal for a big regional ISP. That it was a “consent decree” (all the parties involved at the time were careful not to call it a “fine”) should be a signal that it wasn’t a cut and dried case. And to suggest that Madison River somehow encodified the Four Freedoms is something I don’t think even AT&T’s lawyers would claim. And even Martin’s version (with the caveat that service providers can justify any action under the “keeping the network alive” excuse) the freedoms are just suggestions, they don’t have the power of regulation or law.

    So to say “Madison River committed the Four Freedoms to regulatory law” is wrong. The Four Freedoms are not part of any current law. They are instead an ideal to aspire to, to commit perhaps to simple legislation, one without any fudge-factor language that would allow those with partisan or economic views of “facts” to evade their purpose. To a network expert like yourself, the exceptions may seem to be simple, safe protections. To the lawyers who write them, they are huge loopholes to drive trucks through. When the network experts start telling the lawyers what to do, maybe then we can all trust that exceptions are there to help everyone. To suggest that’s the situation now is to admit being more naive than Powell.

    Facts are facts, Richard, no matter how they may be inconvenient truths with your apparent view of history. Not suggesting that any of this is the right way to do things, but if you are going to argue credibly, don’t say things like:

    “In response to this case, they devised the “four freedoms”.” It’s just simply not true.

    And if you can’t accept a simple timeline of facts, how can anyone trust the rest of your rants? I think if you’re trying to show your knowledge of the current situation, you’d want to at least get the easy part (the recorded history) correct. As you’ve told us all many times, you’re really smart when it comes to building networks. Try to be just as smart researching what really happened.

  12. Madison River entered into the consent decree persuant to the FCC’s statement of principles In the Matter of Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, the holding that enumerated the four freedoms. You can go read it here.

    I’ve written legislation and helped write agency regulations and my experience tells me that it’s sound statutory construction to leave “reasonable man” exceptions. When a legislative body seeks to regulate a service that doesn’t actually exist yet, it’s, like, even more prudent.

    If you can’t see the big picture for your obsession about which FCC document lays out the principles, why should anybody trust your judgment about statutory construction?

    You seem to have a big burr up your ass for reasons not known to me.

    Your hysterical over-reaction to the network management exception underscores the problem with trying to regulate packet-switched networks according to principles devised for the analog phone network of the 1930s. Packet networks experience overload and congestion and react to it in completely different ways that analog and circuit-switched networks do. Overload on a phone network manifests as lack of dial tone or inability to place a call, but on packet networks it manifests as dropped packets on overloaded links. If you want to say that a broadband provider can never intentionally drop a packet at any time, you’d create a real dilemma for network operators because all the bandwidth in the world can’t preclude that from ever happening. Hence a network management exception to any fairness and open access policy. If that’s not clear to you – and I suspect it isn’t – tell me what part you don’t understand and I’ll try to explain it better.

    I’m here to help, you know.

  13. Not hysterical. No burr up my ass. Just trying to keep the facts straight.

    Your original post still makes it sound like the FCC made up the four freedoms to deal with Madison River-type cases. It’s a convenient way to view the events if you are trying to prove that the FCC can be trusted to police such infractions. What really happened is that Powell came up with the freedoms idea well in advance of Madison River; Madison River agreed to pay $15,000, admitting no wrongdoing, so Powell could have a going-away party victory that didn’t mess up their business; and then Martin made a show of adopting the freedoms with the added caveats that ensure that if anything similar does happen, it could be litigated to death before any penalties or infractions were determined.

    A subtle difference, perhaps, but the story is just not as simple as you’d like it to be. So if you are going to make leaps of faith across fact in attempts to influence others, please don’t be surprised if somebody raises an objection.

    As for the larger argument, I certainly agree with your statement that reasonable man caveats make sense technically; but as I said before, until the network operators become the bosses of the lawyers, how can we trust that fair-minded folk like yourself are determining what is detrimental to the network and what is just a good business decision?

    For me, network neutrality regulations — without the loopholes — seem to be the lightest touch. It’s pretty naive to think that they will evolve into empowering a packet police penalizing every dropped packet, especially in tasks that are probably daily routines necessary to keep most networks running; maybe there I do need some explanation there as to how it would be done and who would police and penalize? I think the hysterics there are yours, not mine.

    What I think is that a legislative body looking at a service that doesn’t yet exist also shouldn’t build in rules that allow those in power to determine what is detrimental to the network (VoIP? Google video? Bittorrent?) and what is innovation.

  14. You’re right that I misstated the timeline on Madison River the four freedoms, so thank you for correcting me on it. The four freedoms case file isn’t dated.

    So how does the Congress draft regulations such that all important types of abuses are covered and no loopholes are created? Typically, they don’t. They confine themselves to principles and leave the details of enforcement to the agencies to cover through regulations. Over time, case law evolves and we know how to deal with the application of the regulations and principles to normal business practice. It’s a difficult and slow process, and it’s meant to be because life is complex and government isn’t all-knowing.

    You’re asking Congress to pull a rabbit out of a hat: a fully-formed body of regulation that prevents all forms of abuse, prospectively. We’ve never had a Congress that could do that sort of thing when dealing with normal human events with long histories such as taxes, highways, car safety, welfare, or any number of other things. Congress is a reactive body, not a Messiah that leads us into the Promised Land. Show a real abuse, and maybe they’ll give you a good law. Wave your hands and cry “wolf” and there’s no telling what you’ll get.

    Routers drop packets because out-bound links are overloaded. So how do they decide which ones to drop? This is a subject that Internet engineers have trying to figure out since 1985, with varying degrees of success. The experiment is ongoing, and we don’t know nearly enough to legislate it today, if we ever will. Making it into a political issue and giving megaphones to the dimmest bulbs in Hollywood so they can hector us about it doesn’t help the engineering along any, I can assure you.

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