Category: Net Neutrality

Liveblogging the FCC, Panel 2

See First Panel here, and the live video here.

David Farber, former FCC chief tech, and CMU:
What would you need 300 baud for? It motivated faster TTYs. We’re moving to faster networks, and that will stimulate new applications. If this going to lead to a better world, or to 1984? Don’t cut off the future with bad regulations. Big rush to restrict P2P traffic. It’s not all illegal, but it’s hard to tell. Peak loads are hard to restrict with monthly caps. Three dollar surcharge on video downloads.
Continue reading “Liveblogging the FCC, Panel 2”

Court calls FCC “arbitrary and capricious”

The Third Circuit delivered the big smackdown to the FCC over the wardrobe malfunction incident:

The court said the FCC is free to change its policy without “judicial second-guessing,” but only with sufficient notice. “Because the FCC failed to satisfy this requirement,” the court added, “we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.”

It also found that CBS could not be held strcitly liable for the actions of independent contractors — another argument the FCC made for its finding. “The FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the halftime show,” the court said.

This ruling has implications for the proposed sanctions against Comcast: both involve post-hoc rules and both involve sticking it to someone other than the bad actor. The court doesn’t approve of the FCC making rules after an incident has occurred, which is exactly what the FCC proposes to do in the cast of Comcast’s management of P2P. Notice and rule-making have to precede sanctions, not follow them.

And the bad actor notion also applies. The Court found that Jackson and Timberlake were the bad actors, not CBS. In the P2P case, the users who congested the network are the bad actors, not the operator who sought to rein them in.

Chairman Martin, note this well.

Also of interest: the Court noted that most of the complaints against CBS were junk:

The Opinion notes CBS’s research indicating that over 85 percent of those complaints came from forms produced by activist groups. Many of the protests were filed in duplicate, “with some individual complaints appearing in the record up to 37 times,” CBS asserted.

The same can be said of the junk comments manufactured by Free Press against Comcast, of course. Free Press employed the electronic equivalent of seat-warmers to flood the FCC with junk comments, to the tune of 30,000 duplicate complaints.

Recommended reading

Brett Glass has filed a very good letter with the FCC regarding the current controversy. Of particular interest is one of the “Four Freedoms”, the freedom to run any application you want:

It’s important to step back and think about the implications of this clause – the one which Comcast has been accused in the current proceeding of having “violated.”

An application (a technical term for any computer program which is not an operating system) encodes and embodies behavior — any behavior at all that the author wants. And anyone can write one. So, insisting that an ISP allow a user to run any application means that anyone can program his or her computer to behave any way at all — no matter how destructively — on the Internet, and the ISP is not allowed to intervene. In short, such a requirement means that no network provider can have an enforceable Acceptable Use Policy or Terms of Service.

This is a recipe for disaster. Anyone who engages in destructive behavior, hogs bandwidth, or even takes down the network could and say, “I was just running an application… and I have the right to run any application I want, so you can’t stop me.”

The application freedom, like the others, is limited by “reasonable network management,” which is undefined. So the real exercise is defining this term, where the operative essence of the four freedoms is “you can do any damn thing you want, except for what you can’t do, and here’s what you can’t do.” Rather than enumerate freedoms, Michael Powell should have enumerated restrictions, on users, carriers, and services.

That’s hard work, but it’s the kind of thing that serious policy-makers do. Restrictions should start with the following list:

1. You can’t lie to your customers or the public, nor can you be economical with the truth:
– You have to fully disclose terms of service in language as plain is it can be, using standard metrics and terminology.

2. The Internet is a shared facility, and no one is entitled to overload any portion of it.

3. You can’t manipulate dominant market share in to fix prices or eliminate competition.

4. You can’t act arbitrarily or without notice to terminate services.

5. You can’t operate equipment on the pubic Internet with doors and windows open to malware, viruses, and bots. If your equipment is hijacked, you will summarily be cut off.

6. No stealing.

Etc.

Some of these apply to carriers, some to users, and some to services. In a mature Internet, we all have responsibilities, not just freedoms. With great power, etc.

Public Knowledge’s new star off the rails

Public Knowledge and Free Press have apparently hired file-sharing enthusiast Robb Topolski in some lofty-sounding role, and he feels compelled to expound on network theory that’s way over his head. I’m trying to correct some of his misunderstandings, but it’s not going well. Here’s what I told him at his new employer’s blog: Continue reading “Public Knowledge’s new star off the rails”

Network World on Martin’s rash order

Network World’s Brad Reed has a pretty good news piece on the order FCC chairman Kevin Martin is trying to sell to the Comission’s Democrats. He quotes one of my favorite people, me:

Network architect and inventor Richard Bennett, who has long been critical of net neutrality advocates, says he has some concerns about the precedent the FCC sets if it votes to affirm Martin’s recommendation. In particular, he worries that the principles in the FCC’s policy statement are far too broadly defined and they will be used to encumber upon traffic management practices that are necessary for ISPs to keep their QoS high for the majority of their customers. Bennett says while ISPs should be barred from engaging in anticompetitive behavior by actively discriminating against rival online content, it should be allowed to slow or even stop transfers that are degrading the Web experience for other users.

“Even in this case where the FCC has banned the used of application-based discrimination, it’s perfectly reasonable for ISPs to discriminate against applications on behalf of a particular user,” he says. “Say you’ve got two customers, and one is using VoIP and the other is using BitTorrent. You’re going to need to give VoIP traffic preference over BitTorrent in order to ensure quality of service.”

I actually said something a little different. I want the ISP to allocate bandwidth fairly among users of a given service tier, and then prioritize within each account. So if the same user is running BitTorrent and Vonage at the same time, I want the Vonage traffic to have priority. Martin’s order would ban that practice, and that would be a Bad Thing.

The fact that Martin is proposing to do just that tells you that the FCC is not ready to impose regulations on ISPs yet. More study is needed, and some public comment on the proposed rules.

Kind of like, you know, a formal rule-making procedure. Hell of an idea, eh?

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David Sohn of CDT makes the right points

Commenting on the pending FCC action against Comcast, the CDT’s David Sohn says most of what needs to be said:

In order to engage in enforcement, there needs to be either:

(1) An existing, articulated rule or standard against which to judge behavior;
or
(2) Authority for the enforcement body to adjudicate and issue rulings based on general notions of fairness/equity.

It is difficult to argue that number (1) is present here. The FCC expressly stated that its broadband principles are not rules. If they are not rules, then it is hard to see how the FCC can turn around and try to police violations of them as if they were . . . well . . . rules. Doing so would put the FCC on perilously shaky legal ground.

As for number (2), CDT believes that everyone with a stake in the Internet — which at the end of the day is pretty much everyone, period — should be extremely wary of any assertion of open-ended and highly discretionary FCC jurisdiction over broadband Internet service. Even those who may like what the FCC proposes regarding the Comcast question should consider that they may be far less happy with what some future FCC may do, once the door to largely unguided regulatory action is open. CDT believes that the FCC neither has nor should have open-ended authority to craft policies for the Internet out of whole cloth.

This is the problem with suggesting, as some commentators have, that Internet neutrality concerns could be addressed via case-by-case adjudication and enforcement rather than ex ante rules. You can’t adjudicate and gradually build up a body of common law unless there is some underlying standard to adjudicate against — or unless you have broad authority to make law from scratch. That’s why CDT continues to call for legislation in this area. Having the FCC initiate and craft the entire legal framework, without Congress setting the parameters, cedes too much authority to the agency.

It will be interesting to see how an eventual FCC order, if there is one, addresses the murky legal status of the FCC’s Policy Statement and what legal hook the agency tries to hang its action on.

One other thing I’d add is this: an ideal residential Internet access system needs to be managed in two different but equally important phases:

1) Allocate bandwidth fairly among competing accounts; and then

2) Prioritize streams within each account according to application requirements.

Phase 1 keeps you from being swamped by your neighbor, and keeps you from swamping him, and Phase 2 prevents your VoIP session from being swamped by your BitTorrent session.

The problem with the Comcast Sandvine system is that it skips phase 1 and simply does phase 2, application-level traffic shaping. And the problem with the FCC order that Chairman Martin is floating about is that it makes phase 2 shaping illegal. It’s incredibly useful to manage streams for each user as he would want them managed if he had direct control over them. I think future home gateways will empower users to do this, but in the meantime it’s desirable for the ISP to manage sessions appropriately.

The first rule of regulation should be “do no harm,” and on that basis Martin’s prescription is bad medicine.

FCC Hearing at Carnegie Mellon

Here’s the witness list for the July 21st FCC hearing at CMU:

4:00 p.m. Welcome/Opening Remarks
4:30 p.m. Panel Discussion 1 – The Future of Digital Media
Panelists:

Mark Cuban, Chairman & Co Founder HDNet, Owner – Dallas Mavericks
Jon Peha, Professor, Department of Engineering and Public Policy, and Department of Electrical and Computer Engineering, Carnegie Mellon University
Mark Cavicchia, CEO, Founder & Director, WhereverTV
Matthew Polka, President & CEO, American Cable Association
Jake Witherell, Sim Ops Studios
John Heffner, Conviva
Representative, You Tube

5:30 p.m. Panel Discussion 2 – The Broadband of Tomorrow
Panelists:

David Farber, Distinguished Career Professor of Computer Science and Public Policy, School of Computer Science, Carnegie Mellon University
Rahul Tongia, Senior Systems Scientist, Program on Computation, Organizations, and Society, School of Computer Science, Carnegie Mellon University
Robert W. Quinn, Jr., Senior Vice President – Federal Regulatory, AT&T, Inc.
Rey Ramsey, Chairman & CEO, One Economy Corporation
Rendall Harper, Board Member, Wireless Neighborhoods
Scott Wallsten, Vice President for Research and Senior Fellow, Technology Policy Institute
Marge Krueger, Administrative Director, Communications Workers of America District 13

6:30 p.m. Public Comment Period
8:30 p.m. Adjournment

A live web cast of the hearing will be available to the public on the FCC’s website at: http://www.fcc.gov/realaudio/#jul21 — you may also go to “FCC Meetings” from the homepage and then click on FCC Audio/Video events to access the web cast.

————

One significant detail: Google is breaking its silence on Net Neutrality Phase II by having its YouTube division speak. Another interesting thing is that Prof. Jon Peha gets a second bite at the apple. He’s the guy who made significantly false testimony at the Stanford hearing on the relationship of TCP Resets and BitTorrent transactions. I hope he corrects his former misstatements of fact.

Mark Cuban is always entertaining, but I imagine Prof. Farber will show the most insight.

IT Examiner coverage of Innovation ’08

John Oram of IT Examiner does a fair write-up on the Innovation ’08 panel in IT Examiner:

Richard Bennett said he is opposed to Net Neutrality regulations because they shut down engineering options that are going to be needed for the Internet to become the one, true, general-purpose network. Today on his blog, Richard adds “Google has invested hundreds of millions of dollars in server farms to put its content, chiefly YouTube, in an Internet fast lane, and it fought for the first incarnation in order to protect its high-priority access to your ISP.”

Richard continued: “Now that we’re in a second phase that’s all about empowering P2P, Google has been much less vocal, because it can only lose in this fight. Good P2P takes Google out of the video game, as there’s no way for them to insert advertising into P2P streams. So this is why they want P2P to suck. The new tools will simply try to convince consumers to stick with Google and leave that raunchy old P2P to the pirates.”

It’s much more balanced and diligent coverage than the article in The Register.

Sweetness and Light

Cade Metz reminds us that Google is the most virtuous collection of people on Earth in this love-letter in The Register

“This side of the argument said: We were pretty well known on the internet. We were pretty popular. We had some funds available. We could essentially buy prioritization that would ensure we would be the search engine used by everybody. We would come out fine – a non-neutral world would be a good world for us.”

But then that Google idealism kicked in.

Continue reading “Sweetness and Light”

FCC-enabled Triple-Play Customer

After writing about triple-play and residential broadband for years, I’ve finally decided to take the plunge and try it out. I already had Internet access from Comcast, and I’ve taken out an order to add TV and phone service. The motivation wasn’t entirely economic, although it will save me a bundle for the first year. I’m currently getting TV from DirecTV and my phone from AT&T like a normal person, so the prices of these services will be cut in half and my Internet would have been $15 cheaper for a 50% higher cap, but I decided to go for the 16 Mb/s cap for a price that’s still lower than what I’ve been paying for a 4 Mb/s cap.

My primary motivation for dropping DirecTV was to get away from their crappy DVR. I don’t watch live TV at all, and haven’t since I got my first TiVo in 2002, but there’s no way I can tolerate DirecTV any more. They used to partner with TiVo for a nice unit that integrated two satellite tuners with the recorder, but they idiotically decided to cut their ties with TiVo and do their own thing a couple of years ago. The DirecTV box still doesn’t know what channels I get, and there’s no way I can tell it, so it tries to record baseball games on channels I don’t get and misses the ones I do. This is really unacceptable.

The only convenient way to record all the games played by the A’s is to do a keyword search for “Oakland A’s”, because the actual titles of the games are things like “Oakland A’s at Evil Anaheim Angels of Anaheim” or vice versa. So title search would require 58 entries on each of the four channels where A’s games appear (local OTA, Comcast Sports Net Bay Area 1, 2, or HD.) The keyword search for “Oakland A’s” tries to pick up games on other sports nets and national channels, which is worthless.

Although Comcast has a deal with TiVo and is testing a Comcast DVR with TiVo software, the feedback on the TiVo forums is that it doesn’t work very well, no doubt due to the crappy Motorola hardware platform it’s built on. Some day it will probably be fine, but it clearly sucks at this stage. Thanks to the FCC, cable companies are required to support CableCard, so I can use a true TiVo HD box on cable with the simple addition of a cable M-Card, as the story goes. So we have an odd case of Comcast gaining my TV business because of regulatory action on the cable front that doesn’t exist for satellite TV. DirecTV is not required to open their system to third-party DVRs, and they don’t. Don’t believe that the irony of this effect of cable regulation is lost on me.

The first hiccup came when I tried to activate TiVo service on my new DVR, which I bought from Amazon for $214.65 (it’s up to 263.47 already.) TiVo accounts are indexed by e-mail address, and because I already had a DirecTV TiVo, they wouldn’t let me login to their site with my e-mail address to active the new own-brand TiVo, which is pretty dumb. So I had to use an alternate e-mail address after a fruitless hour on the phone with CS. TiVo does some things exceptionally poorly.

I should have that all straightened out by the time the cable guy shows up, but I do have to ask him why he ran over Kevin Martin’s dog (*inside joke*.) More on that later.