Category: FCC

The New York Times Takes Our Name in Vain

At least they spelled our name right. The Price of Broadband Politics is the title of a New York Times editorial on the lobbying that’s taking place around broadband Internet regulation that sounds the usual cliche themes about money in politics:

Comcast has spent more than $2 million on campaign donations; Verizon has given $1.2 million. The National Cable and Telecommunications Association — the industry’s collective lobbying group — has spent about $1 million more. And just in case that isn’t persuasive enough of the ills of government regulation, telephone and cable companies spent $20.6 million lobbying the government in the first quarter of the year.

Never mind that money spent on contributions is entirely different from money spent on lobbying, it’s the dollar signs that the Times sees, and only those on one side of the debate. So what happens if regulated industries are forbidden from lobbying? The industries who see a benefit from spinning the regulations a certain way will still lobby, and voices like that of the New York Times editorial page will be all the louder. The Times perceives its self-interest, rightly or wrongly, to depend on these regulations, and it’s spending its own money to advocate for its interests on its editorial page. God forbid its opponents who don’t own printing presses should do the same.

Wrong Way

The FCC’s “Third Way” rhetoric is especially interesting to ITIF because the notion that a third way was needed is something ITIF president Rob Atkinson and current Obama advisor Phil Weiser introduced in a 2006 paper. The rhetoric of the third way doesn’t align with the use of a Title II classification, however, because Section 202 has the simplistic “anti-discrimination” construction that’s telephone-specific. Packet-switched networks employ discrimination to do constructive things, so the policy issues are around the sale and transparency of discrimination as a service, not the mere fact of its existence.

The FCC is also usurping the Congressional role and defining its own mandate. See the ITIF statement:

The Federal Communications Commission, the government agency charged by Congress with regulating communications by air and wire, announced today a sweeping new program that goes far beyond its mandate. The FCC’s move is likely to lead to a lengthy and unnecessary legal battle, create needless uncertainty in the market, and detract from the FCC’s important work in implementing the recently unveiled national Broadband Plan. While the FCC is attempting to create a regulatory framework suitable for the ever changing Internet ecosystem, its proposal is tantamount to going duck hunting with a cannon.

This is a story that has become all too familiar. In the recent past, the courts have struck down punitive FCC orders against the Super Bowl “wardrobe malfunction” and on, April 6, an overwrought ruling against cable operator Comcast, who sought to preserve good Internet performance for those of its customers who use Voice over Internet Protocol (VoIP) services such as Skype and Vonage. This most recent example of FCC over-reach is a proposal that would take broadband Internet services out of their present status as lightly-regulated “information services” (Title I) and plunk them into a regulatory system devised for the monopoly telephone networks of the 1930s (Title II).

Read the whole thing.

FCC Regulates Internet, Film Here

News leaked out earlier today to the effect that the FCC has decided to pursue a Title II regulatory program for the Internet, treating it in effect as if it were a telephone network. Others have called this approach “the nuclear option,” but I think it’s less severe, more like the 9/11 attacks on New York and Washington. Telecom lawyers will prosper from it, as a move of this kind is likely to take many years of court battles to squelch. Here’s a little discussion I had with a small circle of friends at the TechCrunch pad this afternoon.

Enjoy.

Open Internet Rules

Incidentally, ITIF filed comments with the FCC in the Open Internet rule-making:

The FCC should proceed with caution in conducting its inquiry into Open Internet rules, according to comments filed by the Information Technology and Innovation Foundation today. All the evidence suggests that the Internet is thriving: network operators are investing and new applications, devices, services, and content are emerging at a dizzying rate. While there is a need to clarify the confused state of Internet regulation in the United States, there’s no compelling public interest for the FCC to adopt a stringent new regulatory framework. The Commission would do well to follow the example of fellow regulators in Canada and Europe who have recently concluded that the most sensible course for national regulators is to emphasize disclosure of terms of service and oversight of business and technical practices.

ITIF rejects the argument that the FCC lacks jurisdiction to regulate the Internet, but urges the Commission to carefully consider the evidence before enacting new regulations on Internet access services. The Internet is a complex “virtual network” designed to serve a variety of needs, and as such it does not readily lend itself to traditional telecom regulatory models. The Internet requires regulators to take a fresh approach. The first step for the Commission is to conduct a fair and probing analysis about how the Internet works today.

ITIF applauds the Commission for committing to an open process and feels that careful examination will lead to the conclusion that the Internet is fundamentally healthy.

The big issues here are that we’re not done with network engineering, nor are we done with developing the business models that make the most of network investments. So the companies who develop the insides of the Internet need to continue cooperating with the people who develop the outsides. The Verizon/Google, Comcast/BitTorrent and AT&T/Apple partnerships are instructive.

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Chairman Genachowski Goes to San Francisco

GigaOm sponsored a conversation with FCC Chairman Julius Genachowki at their Intergalactic Headquarters in San Francisco today.

Watch live streaming video from gigaomtv at livestream.com

I asked the net neutrality question toward the end, and applauded the Chairman for the way he’s transformed the FCC. Genachowski brought some of his best staffers with him, and it was nice to meet and greet and share ideas. You have to admire anyone who can make such deep changes to a rather hidebound federal agency as quickly as Genachowski and staff have done.

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FCC Broadband Deployment Research workshop

The long-awaited video of the FCC’s December 10 workshop Review and Discussion of Broadband Deployment Research is finally on-line. This workshop featured discussions of Yochai Benkler’s controversial Berkman Center report on unbundled DSL and Bob Atkinson’s report on current broadband investment dynamics in the US. As the FCC put it:

As part of the Commission’s development of the National Broadband Plan, the Commission has requested two independent studies. The Commission asked Harvard University’s Berkman Center for Internet and Society to conduct an expert review of existing literature and studies about broadband deployment and usage throughout the world. The Columbia Institute for Tele-Information (“CITI”), based at the Columbia Business School in New York, conducted an independent outside expert review of projected deployment of new and upgraded broadband networks.

Benkler’s report was very politely decimated by Tom Hazlett, an actual economist who knows a thing or two about how Benkler cooked the books, intentionally or by bungling, and the relevant comparisons for the US. One of the many problems with Benkler’s report is that he didn’t do what the FCC asked him to do, which was to simply review the literature on international policies. Instead, he and his Berkman colleagues tried to aggregate all the data into a giant meta-study. Benkler violated the FCC’s “no original research” rule, which should have been familiar to Benkler given his fascination with Wikipedia.

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Blair Levin Hints at National Broadband Plan

Amy Schatz of the WSJ joined in the questioning of Blair Levin on this week’s installment of The Communicators. Here’s an interesting part of her story:

Mr. Levin also dismissed criticisms last week from public interest groups unhappy the plan may not propose some ideas for encouraging competition, such as rules that would require Internet providers to share their lines with competitors.

“I find their criticism not very productive,” Mr. Levin said Monday.

FCC officials have been considering the ideas, some of which were laid out in a FCC-commissioned report by Harvard University’s Berkman Center for Internet & Society.

The report suggests that other countries have faster, cheaper broadband because they adopted open access, line-sharing rules years ago. But FCC officials appear to have backed away from the open access idea in recent weeks.

“The Berkman (study) did a fantastic job of pointing out what’s going on around the world,” Mr. Levin said. “There are certain things where what’s going on in other countries really isn’t germane for where we go from here.

The video is already up at the C-Span site.

Levin gets the private investment angle, and stresses the Columbia study over the Berkman study.

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Speech, Democracy, and Open Internet Regulations

The video of the FCC workshop on Speech, Democratic Engagement, and the Open Internet is up on the FCC’s web site already. I can’t say there was much enlightening dialog in this event; it was pretty much the same tired old rhetoric we’ve heard for the last four years on the subject, with some exceptions.

One speaker, Bob Corn-Revere, was very good, quite clear about the potential dangers of the proposed anti-discrimination rule, and another, Glenn Reynolds, briefly mentioned reservations about them but didn’t amplify. Another speaker denounced volume-based pricing as a racist practice, and several others displayed astonishing ignorance about the nature of information bottlenecks on the Internet by way of proposing different rules for sites like YouTube and search services than those that would apply to ISPs. The reality is that people don’t stream video from their home computers today because of capacity limits, so any attempt to free video streams from content-based restrictions has to start with the services that people use to locate and host these streams.

So the workshop was pretty much a waste of time unless you just awoke from a five year long coma. Not that the FCC meant for it to be, of course, just that there wasn’t much there. And to make matters worse, the written testimony is not available from the FCC, but thanks to PFF you can see Bob Corn-Revere’s statement here.

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Free Speech for Me, But When it Comes to Thee I Need to Think About It

The FCC will hold an upcoming workshop on free speech and net neutrality regulations that features a really interesting array of speakers:

Michele Combs from the Christian Coalition; Glenn Reynolds, Instapundit; Jonathan Moore, Rowdy Orbit; Ruth Livier, YLSE; ; Garlin Gilchrist, Center for Community Change; Bob Corn-Revere, Davis Wright Tremaine; Jack Balkin, Yale Law School; and Andrew Schwartzman, Media Access Project.

“Interesting” in that most of* this group shares a common viewpoint to the effect that net neutrality regulations are necessary to protect free speech on the Internet. This is not the only viewpoint that exists on the subject, of course: there are many of us who believe that the proposed framework of regulations is at best neutral to free expression and under many plausible outcomes, positively harmful.

The reason for this is that the proposed anti-discrimination rule makes it illegal for ISPs to sell enhanced transport to publishers who require it to deliver high bandwidth, live interactive services to people on the Internet. A broad non-discrimination rule pretty well confines the future Internet to the range of applications it supports today, low-bandwidth interaction and static content, and even those are in doubt on wireless access networks with limited bandwidth.

The Genachowski FCC has been very good so far on putting panels together with diverse viewpoints, so the stark failure of the Commission to respect viewpoint diversity in this particular case is rather surprising. It is particularly ironic that on a panel devoted to viewpoint diversity, in essence, that the Commission has chosen viewpoints that represent unanimity rather than diversity.

UPDATE: One thing I have to say about the FCC is that it’s a very responsive agency. I sent an e-mail to the panel coordinator late Friday complaining about the panel’s lack of diversity, and despite the fact that it was sent after business hours on Friday, I got a response today in the form of a phone call from an FCC staffer. The explanation they offer is that this panel is simply meant to cover Internet openness, and there will be additional panels on the issues I’ve raised from January to March. So the issue of whether new rules are needed to protect free speech will be covered in these future panels, and doesn’t need any discussion right now, per the FCC’s viewpoint.

The scheduling is hard to fathom. Earlier this week, there was a technical panel in which academics, operators, and equipment vendors with different viewpoints on net neutrality regulations educated Commission staff on Internet organization and traffic. That panel had people who range all the way from strong supporters of the regulations to strong opponents, but they didn’t explore the policy space directly. The upcoming panel simply happens to be more uniform in its views, but their charter is to explain how they benefit from Internet openness.

In the overall scheme of things, the Internet is not actually more open than many other networks with which we’re familiar, of course; the telephone network permits anyone to communicate with anyone, as did the telegraph network and as does the US mail. And you can’t do anything you want on the Internet, you have to abide by the law.

To the extent that the Internet is not open, it’s chiefly government that closes off particular avenues of expression: The obvious examples are the DMCA’s anti-piracy provisions, the US ban on kiddie porn, Germany’s ban on Nazi organizing and Scientology, and China’s ban on access to native Google searches. Each government has decided on policy grounds to close the Internet in ways that suit its interests, so if the regulations simply focus on commercial restrictions and enablements of forms of Internet-based speech and don’t restrict the power of the FCC to issue ex post and ex ante regulations, we won’t have accomplished much in this process.

The area of controversy is in between the technical issues discussed in the first workshop and the openness issues that will be discussed Tuesday. And as we will see, the advocates of net neutrality don’t understand enough about the Internet’s operation and potential to have much insight into whether and how it’s going to be regulated going forward.

*UPDATE 2: At least one of the speakers will in fact caution the Commission about diving in with the new regulations without clear evidence of harm.

Guest Blog at GigaOm

My guest blog at GigaOm deals with paid peering and the net neutrality regulations, How Video Is Changing the Internet:

But paid peering may be forbidden by Question 106 of the FCC’s proposed Open Internet rules because it’s essentially two-tiered network access, Norton points out.

Paid peering illustrates how hard it is to write an anti-discrimination rule for the Internet that doesn’t have harmful side effects for all but the largest content networks. Paid peering is a better level of access to an ISP’s customers for a fee, but the fee is less than the price of generic access to the ISP via a transit network. The practice of paid peering also reduces the load on the Internet core, so what’s not to like? Paid peering agreements should be offered for sale on a non-discriminatory basis, but they certainly shouldn’t be banned.

There’s another good treatment of the subject at Digital Society, inspired by the same conversation with peering maven Bill Norton.

UPDATE: There’s an incredible whine-a-thon in the comments to this article by Google’s Director of Network Operations Vijay Gill and some of his friends from a network operators’ IRC channel. Gill says I’ve got all the facts wrong because paid peering existed in a very limited way ten years ago under a different name. I don’t dispute that, but simply note its potential problems with net neutrality regulations in some guises. The issue is whether the Internet of the Future will be a slave to the Internet of the Past’s supposed insistence on a single service level for all peering agreements, not that there ever has been such a regulation.

UPDATE 2: One thing I definitely was unclear about is whether Arbor’s estimates of traffic growth, 47%, are in line with the MINTS estimates. I conclude that overall growth is much higher than the MINTS figure because Arbor measures only inter-domain traffic at Internet Exchanges. There’s obviously been a great deal of growth in the Akamai and Limelight CDNs, neither of which is measured by MINTS or Arbor, and growth in private peering (paid and unpaid) as well. MINTS measures more than public IX traffic, yet their figures are in line with Arbor’s data from public sources only; this difference in method and similarity of measurements suggests that MINTS may be understating the total of the inter-domain case, depending on how the load falls out between public and private sources. Private connections are increasing, according to IX operators and heavy users.

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