Network neutrality: how the FCC sees it (Part 1 of 2)

The mere announcement of an FCC hearing on "broadband network management practices" was a notch in the gun of network neutrality advocates. The achievement was reinforced by the line-up at Harvard University's law school today. The Comcasts and Verizons were outnumbered and outmaneuvered by the left wing of the network neutrality movement, which included such leading lights as Yochai Benkler, David P. Reed, and the honorary host of the event, Representative Edward Markey, who heads the House's Subcommittee on Telecommunications and the Internet.

Yet to a large extent, the panelists and speakers were like petitioners who are denied access to the king and can only bring their complaints to the gardeners who decorate the paths outside his gate. I believe that the FCC commissioners see distinct limits to what they can accomplish, and that their compromise will come out much closer to the current practices of the Comcasts and Verizons than to the more idealistic calls for an Internet that we should have had seven or eight years ago.

I feel a natural pull toward network neutrality, which I knew for many years in slightly different versions and different terms (common carriage, the layered protocol stack, the end-to-end principle, the stupid network) before the current buzzword emerged. But I soon realized that the subject was a thornbush from which it is hard to untangle a solution, and wrote a major analysis two years ago that I really think still stands as an accurate representation of the issues.

But where do industries, the public, and the government stand today? That's what I'll explain in this article. I'll drill down tomorrow in another article about some interesting details at the hearing.

Format of the event

Today's hearing was the first event in a stated policy by the FCC to get "outside the Beltway" and go before citizenry around the country. If bringing the FCC to us contributes less of a carbon footprint than bringing us to the FCC, I'm all for it, but I personally didn't get much more of thrill than when I saw a live webcast of the Senate's network neutrality hearings two years ago.

Still, I appreciate the commissioners' willingness to appear before an audience of hundreds, and I thank them along with the Harvard Law School and Markey's office for organizing this event. With my praise echoing in your ears, I have to note three missteps I think the organizers made.

The first was to hold the hearing in Harvard Law School's Ames auditorium instead of the FleetCenter sports arena, which would have been more suited to the size of the crowd as well as the emotional mood of the attendees.

The second misstep was to change the date at the last moment, which made it hard for people such as me (who arranged my schedule around the event) to attend the whole thing.

The third was the format. As I mentioned at the start, the line-up was slanted toward network neutrality advocates. It made me suspect that this public hearing was a sop to these idealists, and a counter-balance to the actual policy that the FCC will adopt.

But the line-up at any hearing is always a stunted representation of the range of creative ideas on a topic, just as presidential campaigns are. Benkler, for instance, has tremendous vision and gave a stunningly eloquent presentation of his view of the Internet's future, but he still represents just one branch of a very bushy movement that I'll categorize a bit later.

The Free Press (who also had a panelist) set up a studio in the Law School to take testimony from any and all comers. The results will no doubt be a YouTube of network neutrality. I'm sure there is much in the recordings that is insightful, heartfelt, and stimulating, but the gems will be hard to pick out and organize coherently. Isn't it time to use available technology to organize public input in some rational way that's more diverse and representative than hand-picked panelists but more useful than a barrel of impetuous commentary?

The stakes

Broadband network management practices--the subject of today's hearings--have an impact far beyond the number of bits in the network mask used to route IP packets. Issues on which the hearings focused today included:

• The "four freedoms" of telecommunications, inspired by Richard M. Stallman's four software freedoms and enunciated by none other than Michael Powell, the chair who redirected the FCC along its current free-market path. Powell's freedoms are the right (within the limits of the law) to access any content of your choice, to use any applications of your choice, to attach any devices of your choice, and to understand the parameters of the network service you receive.
• The future of innovation in Internet applications, services, and protocols.
• The attainment of bandwidth that is ten or a hundred times the current standards, an increase we need for today's Internet applications and that are being achieved in several other developed nations.
• Open content, which can promote democracy and provide alternatives to an ever more concentrated mainstream media. In this regard, it is not irrelevant that the FCC has permitted far greater cross-ownership in the media than before, and that the NAACP organized a protest about the decreasing racial diversity of mainstream media at today's hearing. (On the other hand, Verizon is a corporate sponsor of the NAACP. You make your alliances where you have to.)

Three stances

Within the parameters suggested by Powell's four freedoms (not to mention the 1996 Telecom Act), three different points of view have emerged in the network neutrality debate.

The large Internet providers, limited in the money they are willing or able to spend to increase bandwidth, want leeway to control traffic toward two ends: to balance out current bandwidth, and to generate extra revenue that they claim they will spend to add bandwidth.

Balancing out current bandwidth is the less noxious goal, and one companies would probably try to apply lightly in order to keep all customers as happy as possible. Comcast's infamous restrictions on peer-to-peer traffic, which many critics claim to be a monopolistic blow against video downloads that compete with Comcast's cable offerings, are probably an outlier case.

But such traffic shaping still has the unintended consequence of introducing distortions into the choices made by those who offer or consume network services. As law professor Timothy Wu pointed out on one of today's panels, investors would be reluctant to fund innovative Internet companies if their services could be choked off unexpectedly.

Generating extra revenue is even more alarming, because here the vendors are playing favorites. There is also no guarantee that they would actually use the money they skim off the top to fund higher bandwidth. (Why would they?)

On the other side of the debate, observers have actually gone beyond network neutrality. It is now seen as a stop-gap at best, and more often a distraction from the real goal of increased competition.

Some advocates want to nationalize the physical network or build out new networks with government funding; some want to leave the network in its current hands but strip the incumbent companies of all their higher-level services so they have no incentive to discriminate. And yet others want to amend interconnection rules and beef up enforcement of rules against discrimination so that new competitors arise naturally.

As I said before, this competitive, high-speed Internet is what we should have had seven or eight years ago, and I'll explore that in tomorrow's article.

But what we'll end up getting is the third stance, which FCC commissioner Michael J. Copps described in his opening comments: a formal endorsement of non-discrimination as a policy that Internet providers must follow, leading to continual FCC review of current practices by telecom and cable companies in order to build up, over time, a collection of case law that can ensure fair access without altering the basic ownership of the physical network.

Benkler argued strenuously against this continual fussing and fixing, but after years of actions in favor of the incumbent operators, the FCC can't do much more.

This is the essential message I took away today about the current state of Internet policy and the relative positions of the major players. To some extent, the rest is all rhetoric, but I'll go into that tomorrow.