Damned if you do, screwed if you don’t

The FCC has finally noticed that reducing the Quality of Service of an Internet access service affects all the applications that use it, including VoIP. They’ve sent a harsh letter to Comcast seeking ammunition with which to pillory the cable giant, in one of Kevin Martin’s parting shots:

Does Comcast give its own Internet phone service special treatment compared to VoIP competitors who use the ISP’s network? That’s basically the question that the Federal Communications Commission posed in a letter sent to the cable giant on Sunday. The agency has asked Comcast to provide “a detailed justification for Comcast’s disparate treatment of its own VoIP service as compared to that offered by other VoIP providers on its network.” The latest knock on the door comes from FCC Wireline Bureau Chief Dana Shaffer and agency General Counsel Matthew Berry.

Readers of this blog will remember that I raised this issue with the “protocol-agnostic” management scheme Comcast adopted in order to comply with the FCC’s over-reaction to the former application-aware scheme, which prevented P2P from over-consuming bandwidth needed by more latency-sensitive applications. My argument is that network management needs to operate in two stages, one that allocates bandwidth fairly among users, and a second that allocates it sensibly among the applications in use by each user. The old Comcast scheme did one part of this, and the new scheme does the other part. I’d like to see both at the same time, but it’s not at all clear that the FCC will allow that. So we’re left with various forms of compromise.

The fundamental error that the FCC is making in this instance is incorrectly identifying the “service” that it seeks to regulate according to a new attempt to regulate services (skip to 13:30) rather than technologies.

Comcast sells Internet service, telephone service, and TV service. It doesn’t sell “VoIP service” so there’s no basis to this complaint. The Commission has made it very difficult for Comcast to even identify applications running over the Internet service, and the Net Neuts have typically insisted it refrain from even trying to do so; recall David Reed’s fanatical envelope-waving exercise at the Harvard hearing last year.

The telephone service that Comcast and the telephone companies sell uses dedicated bandwidth, while the over-the-top VoIP service that Vonage and Skype offer uses shared bandwidth. I certainly hope that native phone service outperforms ad hoc VoIP; I pay good money to ensure that it does.

This action says a lot about what’s wrong with the FCC. Regardless of the regulatory model it brings to broadband, it lacks the technical expertise to apply it correctly. The result is “damned if you do, damned if you don’t” enforcement actions.

This is just plain silly. The only party the FCC has any right to take to task in this matter is itself.

The pirates who congregate at DSL Reports are in a big tizzy over this, naturally.

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”

Liveblogging FCC hearing in Pittsburgh

Here’s the video link.

(Didn’t hear Congressman Doyle, Martin, or Copps.)
Adelstein: (Misstates findings of Pew study on broadband adoption. Price is not really the issue, lack of interest is.) Complains about smackdown by the Third Circuit.
Tate: Don’t forget about piracy and the children.
McDowell: Don’t dry up the capital. Engineers solve engineering problems, not politicians and bureaucrats. Applause.

Panel 1:
Mark Cuban, Blog Maverick: Special-purpose networks better at what they do than the generic Internet. Multicast is the game-changer for IPTV, but it departs from the generic Internet model. Right.
Continue reading “Liveblogging FCC hearing in Pittsburgh”

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.


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.