Will Google be the FCC’s next target?

Truth is stranger than fiction. This report in ZDNet suggests that Google may well find itself in the crosshairs of net regulators gone wild:

Google clearly wants the FCC to make sure that other private companies’ networks are open equally to all Internet services. Now, it will be interesting to see if that applies to networks in which Google is involved.

On Friday, the Commission takes up the question of whether Comcast Corp., the nation’s largest provider of high-speed access to the Internet, is “secretly degrading peer-to-peer applications,’’ as the FCC agenda puts it.

As Multichannel News reports, Google Inc. is pressing the Commission to provide clear guidance to broadband network owners on acceptable ways of managing Internet traffic.

Google is shortly to become a network operator, a partner with Comcast in the Clearwire 4G network. Google intends to secure itself pride of place with a Google button on the Clearwire phone, a violation of all that is holy and neutral. This should be fun.

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Kevin Martin’s secret regulations

As the crescendo of criticism builds against the FCC’s pending publication of its new rules for Internet access providers, the New York Times emerges as the sole source of pro-FCC coverage. They publish a bizarre Op-Ed by Free Press chairman Tim Wu equating competing carriers with OPEC and mistaking the general trend in broadband prices – sharply down – with the trend for gas prices, which goes in the opposite direction entirely:

AMERICANS today spend almost as much on bandwidth — the capacity to move information — as we do on energy. A family of four likely spends several hundred dollars a month on cellphones, cable television and Internet connections, which is about what we spend on gas and heating oil.

Here’s what’s happening to broadband prices at Comcast:

High-speed Internet revenue increased 10% to $1.8 billion in the second quarter of 2008 from $1.6 billion in 2007 reflecting a 12% increase in subscribers and a 3% decline in average monthly revenue per subscriber to $42.01, reflecting the impact of additional bundling and the recent introduction of new offers and speed tiers.

I’d love to see a 3% monthly decline in gas prices, even at the same volume level. But the Comcast figures show consumers upgrading to higher speed tiers (like Blast, which I measure at 28 Mb/s download speed) and still seeing an average decline in prices. Wu isn’t talking about life in the Real WorldTM.

Martin himself held a pow-wow with Times reporters, hoping to evoke some of that old-time populism that the nation’s elite daily is so good at. BITS blogger Saul Hansell reports on Martin’s faulty facts and shoddy analysis:

“The network operators can recoup their investment in the network and can charge for access to network services, but consumers have complete control over the devices and content that don’t have anything to do with investment in the underlying network,” he said.

I asked about reports that AT&T now bans all use of peer-to-peer networking software on its wireless data network. It also bans some video services, like the Slingbox feature that lets you watch your home television signal on your cellphone.

Mr. Martin declined to answer. His view is that the commission should not publish explicit regulations. Rather, it should address complaints that are made, as it did with the Comcast case.

“The commission is very careful in that we look at the particular facts that are in front of us. We are not judging the next case,” he said. “Hard and fast rules can actually be over- and under-inclusive, and they can also have adverse impact.”

Mr. Martin was asked whether the commission’s approach will push more Internet providers to start to impose caps on how much bandwidth consumers can use.

He said he wanted to reserve judgment on that trend. He seemed comfortable with Internet providers offering services with limits, so long as they are clearly stated.

So we have this new regime for Internet access providers where every move they make is to be judged according to a list of secret regulations. If ever there was a recipe for stalemate, this is it.

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Federal umpire blows a call

The Wall St. Journal joins the chorus of Bronx cheers aimed at Kevin Martin, the one-eyed federal umpire who blew a call that wasn’t even close:

Those who would use Comcast’s actions to argue for more Internet regulation have misidentified the Big Brother problem. It’s not the private sector they should be worried about. There’s no evidence that Comcast was trying to suppress a political view or favor one of its own services. By all appearances, the company’s policies were motivated by nothing more than making sure a tiny percentage of bandwidth hogs didn’t slow down Internet traffic for everyone else on the network.

Giving the government more say in network management, by contrast, introduces all kinds of potential for political mischief. Net neutrality is a slippery slope toward interventions of all kinds — not merely over access but ultimately over content. Naturally, the most powerful lobbies will have the largest sway. Mr. Martin’s decision in this case may well be driven by his own political hostility to Comcast and the cable industry for resisting some of his other policy priorities.

Mr. Martin’s bad instincts notwithstanding, the FCC’s job is not to determine business models in the private sector. The community of Internet service and content providers has proven itself more than able to work out problems on its own as Web use has exploded. If there are bottlenecks in the future, some providers might choose to block file-sharing services at certain hours of the day. Others might opt for some kind of metered or tiered pricing. Banning these options will only reduce incentives to upgrade networks and launch new services.

Regulators would do better to focus on keeping the overall telecom marketplace competitive. If Comcast customers don’t like the company’s network management policies, they’re free to take their business to Verizon, or AT&T, or some other Internet service provider. A World Wide Web run by Kevin Martin and his political friends will leave us with poorer quality and fewer options all around.

Internet users are several times more likely to suffer from slowed or degraded service on account of their neighbors than their ISPs, so Comcast’s actions have been reasonable. And as many others have noted, the regulatory role is to resolve impasses in the technical collaboration process, not to substitute political insight for engineering knowledge.

Martin blew this one, there’s no doubt about it. We need instant replay in politics.

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Policy-based Evidence-making

Andrew Orlowski has outdone himself in this admirable summary of the FCC’s expected ruling on Comcast:

The landmark decision draws together two strands of policy – one old and specific to the US, and one new and widespread.

I’ve noted before how American politics are largely fought through symbolic gestures. Think of the bitter fights over the wording on the US currency, or inscriptions on public statues. The Neutrality campaign was similarly engaged in a symbolic battle.

But the other aspect is more disturbing. Britain’s equivalent of the FCC, Ofcom, prides itself on what it calls “evidence-based policy making”. It may not always succeed, but it’s a tradition based on empiricism. With “Net Neutrality”, what we’re seeing is the opposite, where the direction is set on a hunch or intuition, or the angst of a mob, and the facts cherry-picked to support the conclusion. The definition of harm and “busting” are great illustrations. Call it “policy-based evidence-making”, if you like.


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Google is Dead

They don’t know it yet, of course. I’ve just checked the new alternative to Google, Cuil (pronounced “cool”) and found it amazingly accurate. They show me as the number 1 Richard Bennett and the number 1 Bennett. Very sweet, even though I’m only the number 12 Richard; that gives me something to strive for.

UPDATE: Esteemed BITS blogger Saul Hansell interviewed Cuil president Anna Patterson on her “36 hours of fame” and got an explanation of the site’s first day troubles: “We were overwhelmed with traffic that was not the standard pattern,” Ms. Paterson said. “People were looking for their names a lot.”


The Soul of Kevin Martin

Declan McCullagh takes a good look at the legal and political issues around the FCC’s pending wrist-slap of broadband carrier Comcast in FCC probably can’t police Comcast’s BitTorrent throttling:

If FCC enforcement against Comcast is illegal, why would Chairman Martin call Friday’s meeting? Only he knows for certain, but one explanation is that if the FCC is embarrassed when slapped down by a federal appeals court two years hence, Martin will have long since departed to a lucrative partnership at a law firm or private equity firm. (This is a customary exit path for FCC chairmen: Newton Minow went to Sidley Austin; William Kennard went to the Carlyle Group; James Quello went to Wiley Rein, named for ex-chairman Richard Wiley, where equity partners made an average of $4.4 million in 2006.)

Friday’s ruling may also end up as a cautionary tale for AT&T and Verizon, which as recently as last month seemed to be egging on the FCC to take action against their cable industry rival. But the same activists that have targeted Comcast before the FCC no doubt realize that AT&T’s terms of service limit “peer-to-peer applications”; Verizon Wireless flatly prohibits them; Verizon’s Fios service blocks incoming port 80. Another term for those network management practices is “Net neutrality violations.”

Motivation is interesting, and Declan’s probably right that Martin has a trick up his sleeve. My concern about this action is the precedent it would set. If the FCC is allowed to impose any madeup-on-the-spot rule that it fancies on companies with multi-billion dollar infrastructure investments, I can’t see the financial markets being too willing to part with the cash to engage in the continual upgrade that broadband networks require. The financial markets can tolerate many kinds of risk, but the political or career ambitions of Young Turk commissioners with the power to impose arbitrary sanctions isn’t one of them. Martin should sober up and look at the big picture instead of pulling the trigger on Comcast.

Don’t regulate, collaborate

FCC Commissioner Robert McDowell has written one of the most sober and sensible essays on the Internet’s present technical crisis in today’s Washington Post. With so many members of the Commission willing to jump into the breach with ex post facto rules and regulations, it’s good to see that there are some on the inside of the regulatory machine who have a sense of the Internet’s history. See Who Should Solve This Internet Crisis?

The Internet was in crisis. Its electronic “pipes” were clogged with new bandwidth-hogging software. Engineers faced a choice: Allow the Net to succumb to fatal gridlock or find a solution.

The year was 1987. About 35,000 people, mainly academics and some government employees, used the Internet.

This story, of course, had a happy ending. The loosely knit Internet engineering community rallied to improve an automated data “traffic cop” that prioritized applications and content needing “real time” delivery over those that would not suffer from delay. Their efforts unclogged the Internet and laid the foundation for what has become the greatest deregulatory success story of all time.

The Internet has since weathered several such crises. Each time, engineers, academics, software developers, Web infrastructure builders and others have worked together to fix the problems. Over the years, some groups have become more formalized — such as the Internet Society, the Internet Engineering Task Force and the Internet Architecture Board. They have remained largely self-governing, self-funded and nonprofit, with volunteers acting on their own and not on behalf of their employers. No government owns or regulates them.

The Internet has flourished because it has operated under the principle that engineers, not politicians or bureaucrats, should solve engineering problems.

Today, a new challenge is upon us. Pipes are filling rapidly with “peer-to-peer” (“P2P”) file-sharing applications that crowd out other content and slow speeds for millions. Just as Napster produced an explosion of shared (largely pirated) music files in 1999, today’s P2P applications allow consumers to share movies. P2P providers store movies on users’ home and office computers to avoid building huge “server farms” of giant computers for this bandwidth-intensive data. When consumers download these videos, they call on thousands of computers across the Web to upload each of their small pieces. As a result, some consumers’ “last-mile” connections, especially connections over cable and wireless networks, get clogged. These electronic traffic jams slow the Internet for most consumers, a majority of whom do not use P2P software to watch videos or surf the Web.

At peak times, 5 percent of Internet consumers are using 90 percent of the available bandwidth because of the P2P explosion. This flood of data has created a tyranny by a minority. Slower speeds degrade the quality of the service that consumers have paid for and ultimately diminish America’s competitiveness globally.

The Commissioner makes many of the points that those of us who’ve been involved in the development and refinement of Internet protocols for the period since Internet Meltdown have made: new applications have broken the Internet before. After the FTP crisis was averted by Van Jacobson’s patch, the Internet very nearly ground to a state of gridlock on the early 90s when HTTP 1.0 came along and opened too many TCP virtual circuits. That problem was averted by HTTP 1.1, which used fewer VCs more efficiently. We didn’t need government mandates to solve the problem, as everyone was motivated already.

The P2P crisis is already the focus of intense industry collaboration in the P4P Working Group sponsored by the DCIA and in the IETF. Whatever orders the FCC issues on the complaints against Comcast are going to be less helpful than these collaborative efforts, and will in all likelihood retard the course of the Internet’s technical evolution.

Don’t regulate, collaborate.

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Regulate first, ask questions later

Press reports on the FCC’s vote on the Vuze/Free Press petitions against Comcast suggest a peculiar outcome, where FCC orders Comcast to stop managing BitTorrent and to also tell the FCC how and when it manages BitTorrent:

The FCC would require Comcast to stop slowing or blocking access to certain online applications, mostly video file-sharing services such as BitTorrent. The company would also be required to provide more disclosure to consumers about its network management practices and provide more details to the FCC about how it’s blocked or slowed traffic in the past.

If the FCC is convinced the management is wrong, why ask for the data? And why only ask for the data after nearly a year of investigating and three raucous public spectacles?

Vuze recently changed its business model, providing search service for piracy sites such as Mininova and Pirate’s Bay:

In addition to Vuze.com, the new search box gives users the option to search third-party web sites, with Mininova, Sumotorrent, BTJunkie and Jamendo being preselected. With the exception of Jamendo, all of these also feature unlicensed content. In fact, Mininova was sued by Dutch rights holders just a few weeks ago. But Vuze CEO Gilles BianRosa told me that he doesn’t think his company could run into trouble by searching these sources. “We have considered the existing legal framework and feel comfortable about the addition of this feature to our new release,” he told me, adding that rights holders could use the search to add their platforms to the mix as well.

We have a curious outcome where the FCC is ordering carriers to provide free bandwidth to pirates.

Small, wireless ISPs are hit harder by this order than the large corporations. If they can’t manage BitTorrent, they’re out of business. Brett Glass is in that situation.

See my recent FCC Comments here.

More as this develops, but for now enjoy the debate at DSL Reports, where the nefarious scheme to allocate bandwidth fairly first emerged.

John Dunbar’s AP story is here. Pretty straight coverage.

Nate Anderson’s Ars Technica is not so straight, tilting toward an editorial.

Blog talk is here, thanks to the good folks at GoogleTM.

Adam Thierer gives props to the big gov’t-pro regulator team at TLF:

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 again 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.


Bob Fernandez covers the story in the Philly Inquirer, Comcast’s hometown paper:

Consumer and advocacy groups say action by Martin is necessary to preserve First Amendment protections on the Internet and to protect broadband consumers. Free Press, an advocacy group opposed to media consolidation, filed the complaint with the FCC. It was disappointed that Martin wouldn’t fine Comcast to send a message to the industry.

But others warn that Martin’s decision, announced at a Washington news conference, advances the FCC’s powers on the Internet without new laws.

“This is the foot in the door for big government to regulate the Internet,” said Adam Thierer, a senior fellow at the Progress and Freedom Foundation, a free-market think tank in Washington. “This is the beginning of a serious regulatory regime. For the first time, the FCC is making law around net neutrality.”

Net neutrality refers to the concept that Internet operators should treat all data traffic the same and not interfere with it – a subject hotly debated in recent years on Capitol Hill. Companies say they sometimes interfere with Internet traffic for practical reasons, like easing data jams.

Nobody ever mentions that unmanaged traffic causes more delay for users than managed traffic.

Upgrading to IPv6

Speaking of Comcast, the cable giant is offering an interesting proposal to the standards community concerning the long overdue transition from IPv4 to IPv6, using NATs and tunnels:

Comcast is upgrading its networks from IPv4, the Internet’s main communications protocol, to the standard known as IPv6. IPv4 uses 32-bit addresses and can support 4.3 billion devices connected directly to the Internet. IPv6 uses 128-bit addresses and supports an unlimited number of devices.

At issue is how Comcast will support new customers when IPv4 addresses run out, which is expected in 2011. Comcast can give these customers IPv6 addresses, but their home computers, printers, gaming systems and other Internet-connected devices are likely to support only IPv4.

Comcast engineers have come up with a solution to this problem, dubbed Dual-Stack Lite, which it says is backwards compatible with IPv4 and can be deployed incrementally.

Comcast outlined Dual-Stack Lite in a draft document published by the Internet Engineering Task Force on July 7. Dual-Stack Lite will be discussed at an IETF meeting in Dublin scheduled for later this month.

It’s a reasonable approach, putting the onus of dual stacks on the carrier NATs and home gateways where it belongs. It’s fortunate the IETF has companies like Comcast to give it guidance.

H/T CircleID.

UPDATE: Iljitsch van Beijnum has some further illumination on the Ars Technica blog, without using the “C” word; they don’t go for that sort of thing on Ars.