Net Neutrality

There has been a great deal of concern about language in the recent FCC call for rule making on network neutrality.  The FCC notice is intended to develop a definition of net neutrality along the lines proposed in the rule making.  The concern is directed at language that would permit network operators (I always use the words network operators because these rules would apply to Internet and non-Internet networks) to conduct ‘reasonable network management.  The Ars Technica article makes one glaring error; there is nothing about ‘tiering‘ that violates net neutrality, but it is a bad idea for a lot of other reasons.   First, here are the principles the FCC has offered for public comment:

“Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:

1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet;

2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice;

3. would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the


4. would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service

providers, and content providers;

5. would be required to treat lawful content, applications, and services in a non-discriminatory manner; and

6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and

content, application, and service providers to enjoy the protections specified in this rule making.”

Now first of all, let’s give the FCC a great big hand for doing such a fine job putting the definition of network neutrality into words, and going much further than most folks would have imagined.  Now, the way the FCC phrased it, they made all six principles subject to the prefatory phrase ‘reasonable network management.’  That is not the way I would do it.  Only principle 5 (OK maybe 4, too) needs to be made subject to reasonable network management, because none of the rest of the  principles implicate any kind of network management at all.  I would like to see the Commission simply take the phrase ‘subject to reasonable network management’ and move it down to principle 5.  Then there would be no confusion that any of the other principles would somehow be compromised by allowing the network operators to ‘manage’ them.

If we can define network neutrality in six pithy phrases, I don’t see why we can’t take a whack at defining reasonable network management in a few pithy phrases also.  My framework for this is based on my research concerning comparative telecommunications laws, and specifically the European Union Framework Directive and Access Directive.  I’m not going to dissect the EU directives here, but I wanted to give some background.

The basic principles for reasonable network management:

1.  The management must be directed to traffic on the network.  It must be directly related to a specific, identifiable traffic problem existing on the network.  If audited, the operator should be able to show what the problem was; it is an identified situation.  This excludes peremptory management, for example taking actions to prevent a traffic problem.  The correct action to peremptorily address traffic is to expand the capacity on the network.  The rule is addressed this way intentionally, so that a network operator will be forced to open or expand capacity to solve traffic congestion.   Network management must stop as soon as the congestion has cleared.

2.  The network operator cannot discriminate between one kind of data and another to management traffic congestion.  The operator must act to remove the congestion, not the data.

3.  To help improve service during periods of congestion, the operator can prioritize certain data.  For example, if an episode of congestion made it hard for voice data to travel over the network (thereby rendering some voice-over-IP apps inoperable), the operator could prioritize voice data.  But the operator cannot retard other data.  Actually, the scenario painted by US ISPs of slowing some data to somehow create some space (??) for other data to move faster, like on a freeway, just doesn’t make sense.  That is not how a data network works.  The analog between freeways and networks breaks down.

4.  The operator cannot act to improve the ‘user experience.’  Since the operator is handling data for all kinds of users, who are sending data as well as receiving it, the operator would have to pick and choose which users’ experience to improve.  Obviously, this can’t be done because how do you choose?  This may also violate the rule against peremptory management.   Network management must occur on the network, not at the user.

5.  All management must be transparent.  Operators are limited to the use of management that meets the technical standards and specifications laid down by the Commission.   Operators must provide a complete description of the methodology they use for network management to anyone who asks.

6.  A network operator cannot refuse network access based on ‘reasonable network management grounds.’ “Where obligations are imposed on operators that require them to meet reasonable requests for access to and use of networks elements and associated facilities, such requests should only be refused on the basis of objective criteria such as technical feasibility or the need to maintain network integrity.”  (EU Access Directive)  When you send a message to someone on another network, you are ‘accessing’ the network.

7.  Network operators cannot manage the network in any way that distorts competition.  For example, they cannot refuse access or slow down access from some competitors, but not others.  They cannot favor their own traffic over others’.

That is pretty much it.  If the FCC wants to define the terms of reasonable network management, I see no reason they cannot.  I strongly urge the Commission to regulate network management in a way that is consistent with the rest of the world.  There is no US Internet or EU Internet.  There is just an Internet, and network operators and users should be able to use it the same way wherever they are.

US Representative Rick Larsen, who represents northwest Washington State, Friday signed the anti-net neutrality letter shopped around by the telcos and cable cos.  The letter was shopped around to Democratic reps in the hopes of scaring off FCC Chairman Julius Genachowski.  In the letter,  the signers recite a litany of telco lies and misrepresentations.  For example, they attribute the growth of the Internet on ‘regulatory restraint,’ an allusion to the polices of Michael Powell, Reed Hundt and Kevin Martin.  But those policies slowed and eventually destroyed the growth of the Internet, so that now the US has one of the lowest Internet use rates of any developed country.  And the quality of our service is just about the worst in the developed world (slowest, most expensive) , again, thanks to regulatory restraint.

A least one signer has already made signs of his intent to possibly repudiate his signature on the letter. I guess in this age of the Internet, he had received assurances the telcos would block any comments about his signature. They can do that, right? Not yet, Rep. Jared Polis, sorry.  But we know where you want go, now.

It’s a surprise Larsen would sell out to the telco/cableco sock puppets.  His district used to have dozens of independent ISPs.  Now, there are nearly none, and the nascent high-tech industry that was developing in this beautiful area of Washington State is gone.  Larsen’s district suffers from lack of high-speed Internet service; I know because I’ve met with the leaders in the area.  Lack of quality Internet has hampered job creation and made it impossible to create or relocate the kind of jobs that would permit young people to remain in the area.  And the few success stories (Bellingham’s fiber to the industrial park project, San Juan County’s decision to build it themselves) are public efforts to get around the tail-dragging, dishonest, manipulative telcos.  Thanks Rick Larsen, you outed yourself as a telco sock puppet.

The Media and Democracy Coalition has issued a policy manifesto addressing the Restoration Government’s Broadband stimulus package, announced by President-Elect Barack Obama.  In the declaration. MADCo specifically attacks the Connected Nation model:

Business As Usual Will Not Suffice
Until now, U.S. policy has been to largely rely on the private market, particularly incumbent large telephone and cable companies, to determine who has access, what they pay for it, and the speed of U.S. broadband infrastructure. This approach has failed, and business as usual will not suffice.  Exclusively relying on the market or private industry will not bring broadband to high-cost areas currently un-served or underserved. We did not bring electricity and phone service to rural America or assure the affordability of service to all by relying on the market alone.  We simply cannot rely upon one solution, a handful of companies, or a single model or technology to solve this problem.  Nor can we count on seeing tangible results if U.S. policy aimlessly doles out tax breaks or public subsidies without accountability.  The stimulus package must not degenerate into corporate welfare, as has too often been the sad fate of subsidies to the private sector.”

It’s good to know our friends in Washington DC are watching our back.  Here in the other Washington, CN sock puppet State Senator Jeanne Kohl-Welles has threatened preemptory legislation that would require Washington State to use the CN model of large public tax breaks, indirect and direct payments to private companies, no spending accountability, false and misleading deployment statistics, poor quality services, and prohibiting municipally-owned information utilities.  Kohl-Welles is one of the largest recipients of political contributions from the telecom and cable bitlords. Keep following this story.

I attended a holiday party today and heard Washington State Senator Jeanne Kohl-Welles expound on her intention to introduce new legislation concerning broadband deployment in Washington.  Kohl-Welles’ bill comes from Progressive States Network.  Progressive States Network is financed in part by the Communications Workers of America (CWA),  and telecom companies. The two are linked: CWA has historically worked to maintain the monopoly status of the telecom oligarchs, and most recently has operated fake grassroots front groups and sock puppet think tanks to help sink genuine progressive legislation that would bring competition to the telecom sector.  Although Kohl-Welles attributes her legislation to PSN, her bills do not reflect the values and policies described in the PSN platform.  

Kohl-Welles is heavily supported by the telecoms, notably Comcast, Verizon and Qwest, the three companies operating in Washington State.  In the last session of the state legislature, Kohl-Welles introduced and passed a telecom-drafted bill that rendered data collected regarding broadband deployment and penetration out-of-bounds to the public.  Asked about the bill, Kohl-Welles says that no legislation can be passed without the support of the telecom companies, so there is no point in even trying. See the link above for Art Brodsky’s play-by-play account of the same tactics when used in Maryland.

Kohl-Welles is a fan of the widely discredited Connect Kentucky and Connected Nation programs, crediting them with increasing broadband by 40%!  At the National Media Reform Conference in June 208, she made a fool of herself describing the miracles attributable to Connected Nation and its progeny.  Unfortunately for her, in the audience was Art Brodsky of Public Knowledge, one of the most important critics of Connected Nation (but not the only one.)  Brodsky outed Kohl-Welles, but she continues to peddle telecom propanganda, in return for their lucrative junkets around the US.  If you Google ‘Connected Nation’ you will find an entire genre of literature outing this group and their clever tactics.  

The Reconstruction government has announced plans to introduce federal legislation that would require truthful, accurate broadband statistical data. Expect to hear Kohl-Welles and others complain about the need for a state level opt-out, so that Connected Nation, CWA, and the telecom oligarchs don’t lose the battles they have already won.

The fine people at Juicy Planet asked me for a recommendation. Which of the three presidential candidates has the best policy positions and experience for activists concerned about the future of the Internet, technology policy, and America’s poor quality broadband deployment. I would add to these issues our policies concerning intellectual property, civil rights and free speech in cyberspace, and bridging the digital divide.

Two of my friends I look to for advice and inspiration have posted their choices to thier blogs. Larry Lessig has come out strongly for Barack Obama. Lessig is one of my intellectual inspirations for his attempts to translate very complicated legal and technical issues into language for the lay public in his several books. Even better, most of Lessig’s book are available for free for your enjoyment under the Creative Commons license. I won’t repeat Larry’s endorsement here, but you can read it for your here.

Kevin Werbach is another acquaintance I hold in high regard. Kevin also came out strongly for Obama in his blog, here. I don’t always agree with Werbach, but mostly I do. Kevin, a former FCC staffer, consistently issues some of the best articles on the subject. I think that Kevin spent too many years in DC, and he occasionally puts too much faith in the ‘free market’ to solve problems that are really going to need direct regulation. Kevin got back on my good list when he recently my prescription that net neutrality will require direct regulation of interconnection.

But the campaign isn’t just among Democrats. So who would be the best candidate in the general election in November? By way of reverse endorsement, the lobbyists for the telecom and cable oligarchs recently conducted a conference to consider their future under a new president. Looking at all three candidates, the bad boys decided that Hillary Clinton would be their choice to keep things shitty and continue funneling taxpayer and consumer dollars to their managers. Clinton beats McCain, at least if you are a monopoly industrialist!

The Clinton administration was a disaster for American technology development, Internet infrastructure, intellectual property policy, and positioning the country for the 21st Century. Clinton idiots like Ira Magiziner and Reed Hundt had no idea what they ere doing, and in typical Clinton fashion, were too arrogant to listen to anyone who does. The damage they did wasn’t always apparent until after they left office. But if Hillary is promising us more of Bill, we don’t need it and I can’t take anymore.

In my opinion, Obama has the most detailed and rational technology policy portfolio. That’s important to me; it says he understands that this is an important campaign issue. Even if other issues are front burner during the primaries, technology policy and the future of the Internet will be, in my opinion, an important issue in the general election. This election is likely to be the most in my generation. If we get it wrong, the fuure of the US and my future is wrecked. If we get it right, and that means Obama, we have a chance, just a chance, of a future with some opportunity, economic justice, happiness, and comfort.

Awhile ago, I was asked to provide a definition of net neutrality. I’ll repeat the definition I provided then, for posterity (or posterior) because folks seem to like it:

There are lots of people throwing around ideas of what they think Net Neutrality is. For some, it is a convenient hook for other unrelated concepts like free speech and open source software. For many, it is a crutch for concepts like the ‘gift economy’ (free as in free beer) or various libertarian/neocon ideas (Esther Dyson stating in the WSJ that the Internet has always been unregulated.)

I can’t address all the ways that various groups that are part of this coalition are choosing to use the words Net Neutrality. Its obvious that there is quite a bit of loose talk going on.

I can offer what the term means in the world of law and policy, where it has been adopted as a legal or policy regulatory regime.

Net Neutrality is short for “Network Neutrality”. It is a term that is intended to apply to all networks, not just the Internet. Network Neutrality means that ALL networks must be operated on neutrality principles. Cable, satellite, telecom, data, leased data, video, etc.

There are three neutrality principles. They are 1) non-discrimination, 2) interconnection, and 3) access.

1) Non-discrimination means that all bits are treated the same by the network operator, including its own bits (bit parity). In the convergent environment all data is ‘just bits.’The network operator cannot discriminate against (or in favor of) any bits/content/traffic over the network, except as required to protect the security and quality of the network. For example, a network operator could, if it was possible, filter out DOS attacks, computer viruses, or spam.

This is simplistic, but that’s my purpose. I wanted to give a very concise definition. Obviously there are examples that challenge the paradigm (SIP, SPAM), but the principle remains the same.

2) Interconnection means that any network can connect to any other network and move traffic over and between the two networks, at reasonable non-discriminatory rates. Without interconnection there is no neutrality, because there is no network. There must be a ‘right of interconnection’ so that a network operator knows that it can get its traffic carried on rival networks.

Neutrality means nothing if there is no way to know that you can send traffic to end users that terminate on another network. For example, someone sending traffic on a telecom network must be able to know that they can send traffic to an end user on the cable operator’s network.

This resembles common carriage. It would make every network operator very similar to a common carrier as to the network operations, only.

3) Access means that any end user can send traffic to any other end user, without discrimination or interference. Don’t worry about the non-discrimination stuff right now. The important principle is being able to reach an end user, emphasis on the ‘end’. This is a consumer-oriented restatement of Prof. Lessig’s ‘end-to-end’ principle.

End users could be individuals, but they are also devices and even other networks. For example, a modem must be able to speak with another device at the other end of the network. An individual must be able to email to another individual on another network, but it also applies to voice, video, or files. Access also applies to video networks (at reasonable fees), telecom (for competition in local and long distance and for services like voicemail, for instance), and data (so that any router or modem can be attached, like a wi-fi router).

That’s all there is to network neutrality. We can discuss how to present definition, but this is the actual, real-world, working definition that has been enacted into law in the other developed countries.

That’s all there is folks. Not much more to it , really. Another interesting swing at a definition is from Susan Crawford. Kevin Werbach was initially a little standoffish on NN, but now he has inhaled and he even came over on my interconnection principle. Interconnection has always been a principle of network neutrality. After all, if there is no interconnection, there is no network. Its simple, really. I made this point in my 2004 paper on the subject, but long before that the EU enshrined it in law in the Open Networks Provision Directive of 1990.