Recently in Net Neutrality Category

Today at 2:00 EDT, The Judiciary Committee Antitrust Task Force will hold a Hearing on Net Neutrality and Free Speech on the Internet.

Damian Kulash Lead Vocalist and Guitarist OK Go

Michele Combs
Vice President of Communications
Christian Coalition of America

Rick Carnes
President
Songwriters Guild of America

Caroline Fredrickson
Director
ACLU Washington Legislative Office

Christopher S. Yoo
Professor of Law and Communication and Director
Center for Technology, Innovation, and Competition
University of Pennsylvania Law School

Susan P. Crawford
Visiting Associate Professor of Law
Yale Law School

It will be webcast live (which I will miss while I'm on a plane sxsw-bound.)

Reps. Ed Markey (D-MA) and Chip Pickering (R-MS) introduced the Internet Freedom Preservation Act of 2008 (H.R. 5353).

This bill would "establish broadband policy and direct the Federal Communications Commission to conduct a proceeding and public broadband summits to assess competition, consumer protection, and consumer choice issues relating to broadband Internet access services."

It amends the Communications Act of 1934 to include open access principles and establish the importance of the internet for the economy of the US.

1. to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;


2. to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;


3. to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and


4. to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.

Even though there are four principles, these are somewhat broader than former FCC Chairman Michael Powell's four freedoms.

The bill requests a report from the FCC about broadband network providers. The information the bill specifically requests is (language somewhat simplified to be less precise, but easier to read. See the original text of the bill for the precise language):

(A) whether broadband network providers refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to--
(i) access, use, send, receive, or offer lawful content, applications, or services
(ii) use lawful applications and services of their choice; and
(iii) attach or connect their choice of legal devices, provided such devices do not harm the network;
(B) whether broadband network providers add charges for quality of service, or other similar additional fees or surcharges, to certain Internet applications and service providers, and whether such pricing conflicts with the policies [set out earlier in this bill]
(C) whether broadband network providers offer to consumers parental filters, spam filters and similar consumer services;
(D) practices by which network providers manage or prioritize network traffic, including prioritization for emergency communications, and whether and in what instances such practices may be consistent with such policies of the United States;
(E) with respect to content, applications, and services--
(i) the historic economic benefits of an open platform;
(ii) the relationship between competition in the broadband Internet access market and an open platform; and
(iii) the policy choices and results of global competitors with respect to access competition and an open platform;
(F) whether the need for enforceable rules governing openness, consumer rights, and consumer protections or prohibiting unreasonable discrimination is lessened if a broadband network provider provides significantly high bandwidth speeds to consumers; and
(G) the potential of policies promoting openness in spectrum allocation, universal service programs, and video franchising to expand innovation through protection from unreasonable interference by network owners of an open marketplace for speech and commerce in content, applications, and services.

Finally, the bill would require the FCC to hold at least 8 broadband summits in geographically diverse locations around the US.

Rep. Markey's press release: Internet Freedom Law Will Keep Internet Open For Future Innovators: "The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers. Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers."

Howard Feld, The Markey-Pickering "Net Neutrality" Bill: Grinding Out One More First Down In The Internet Freedom Bowl: "This is a good bill — probably the best that can get through in the current Congress. It advances the ball forward in a substantial way, and would make a good law if passed. It doesn't solve all the problems, but it doesn't pretend to do so either. It deliberate lines things up for the next step — assuming we get that far."

Derek Slater, Rep. Markey’s new net neutrality legislation: "Net neutrality is too often painted as just about particular companies’ competing interests, but that’s missing the point. Rather, net neutrality and broadband policy are — and should be — about what’s ultimately best for people, in terms of economic growth as well as the social benefit of empowering individuals to speak, create, and engage one another online using the wide panoply of innovations available to them. In other words, broadband policy should come from the bottom up."

The Wall Street Journal, Officials Step Up Net-Neutrality Efforts: "Big broadband companies are headed for a clash with Washington over whether consumers have a right to get as much as they want from the Internet, as fast as they want it, without paying extra for the privilege." Maybe this is better framed as whether the broadband providers have an obligation to disclose how they restrict customers' use of the internet and whether the public interest should require providers to offer access that does not discriminate against content, source or protocol.

In November, Comcast was found to be blocking and degrading certain P2P and groupware network protocols. The issue with Comcast is not that it is imposing limits on users' bandwidth, but that it imposes those limits on the use of certain protocols and applications while failing to disclose that the limits exist and the extent of those limits.

Vuze, a online video provider whose software uses the BitTorrent P2P protocol to distribute content filed a complaint with the FCC about these practices Petition to Establish Rules Governing Network Management Practices by Broadband Network Operators. Free Press and Public Knowledge also filed a Formal Complaint against Comcast for Secretly Degrading P2P Applications and a Petition for Declaratory Ruling.

The Commission sought Comments for Declaratory Ruling Regarding Internet Management Policies and Comments on Petition for Rulemaking to Establish Rules Governing Network Management Practices by Broadband Network Operators.

The FCC has received more than 28,000 comments. Here is Comcast's comment. Some of the other recent comments include Verizon and Verizon Wireless, Qwest,
Time Warner Cable, RIAA, American Library Association and CDT.

The FCC is planning on holding a hearing on February 26 in Cambridge, MA on Broadband Network Management Practices.

One of the big issues in tech and IP policy this year will be the role of ISPs. To what extent should they be common carries of information, enforcers of digital copyright, or delivery networks giving special priority to preferred media providers?

The NY Times published an AP report that the FCC will investigate complaints that Comcast blocks BitTorrent traffic on its networks, F.C.C. to Look at Complaints Comcast Interferes With Net: "The Federal Communications Commission will investigate complaints that Comcast actively interferes with Internet traffic as its subscribers try to share files online, the commission’s chairman, Kevin J. Martin, said Tuesday."

From another session at CES, the Times' Bits blog reports that AT&T is looking to act as an enforcement agent for copyright owners, AT&T and Other ISPs May Be Getting Ready to Filter

"'What we are already doing to address piracy hasn't been working. There’s no secret there,' said James Cicconi, senior vice president, external & legal affairs for AT&T.

Mr. Cicconi said that AT&T has been talking to technology companies, and members of the MPAA and RIAA, for the last six months about implementing digital fingerprinting techniques on the network level.

'We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this,' he said. 'We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.'"

Reaction from David Isenberg, isen.blog: Konflating Kopyright and Kongestion: "The two issues should be separated. Network congestion has some very simple solutions."

Type "nytimes" into your browser's location bar. Unless you have a local server on your network called nytimes, some web browsers (including Safari) will automatically add "http://www." and ".com" to bring you to The New York Times at "http://www.nytimes.com." Other current browsers will search for the keyword in the user's default search engine (including IE). That is, unless you get your internet access through Verizon.

Recently, Verizon has changed the way that its DNS servers react to these domain requests. Instead of sending the browser a "host not found" message, and following the individual user's preferences, Verizon returns its own search page:

ConsumerAffairs.com, Verizon Overrides Internet Searches With Its Own Results: "The change has been advertised by Verizon as a way to help users reach the site they were trying to get to, but some are concerned that it's done more to gain revenue from advertisements placed on the Verizon search site."

In 2003, Network Solutions (the company that controls the .com and .net registries) made a similar change. While that change affected the entire internet's DNS system for .com and .net domains, this affects only Verizon's customers.

Susan Crawford, Monetizing Disorder: "Is this a violation of net neutrality? It certainly is a 'system expectation violation.' We don’t expect ISPs to be filtering our web browsing requests and inserting themselves into the conversation. There’s some concern that the ISP could be doing more than presenting a response page, as we’ve seen from the Comcast flap. Although in a larger sense it’s just what all the other players in the chain want to do - make money from disorder - we want to avoid having the plumbing, the transport, do this without a user’s acquiescence."

Ed Felten, Freedom to Tinker, Verizon Violates Net Neutrality with DNS Deviations, "This is a clear violation of net neutrality: Verizon is interfering with the behavior of the DNS protocol, in order to drive traffic to its own search site. And unlike the Comcast scenario which might possibly have been justifiable as legitimate network management, in this case Verizon cannot claim to be helping its network run more smoothly."

In The New York Times, Adam Liptak reports, Verizon Blocks Messages of Abortion Rights Group - New York Times: "Saying it had the right to block 'controversial or unsavory' text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program." Verizon does not appear to be blocking text messages based on content, but discriminating on access to messaging features for advocacy of particular causes. The company prohibits "controversial speech" in its text message broadcast program and seeks to prevent its customers from being able to subscribe to controversial text message lists, against its own financial best interest. Frank Pasquale, Concurring Opinions, Cell Phone Gag Rule: "This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless's new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure." While not directly enabling this kind of carrier preference, two recent FCC rulings touch on issues relating to the question of whether short-number broadcast text messaging services are part of wireless carriers' common carrier obligation. Last month, the Commission ruled that text messaging is part of the level of mobile service that subscribers expect to use while roaming, In re: Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers. In March, the Commission classified mobile broadband services (200 kpbs and greater) as information, rather than telecommunications services. In re: Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks. Update (9/27) Verizon reversed course. Adam Liptak, NY Times, Verizon Reverses Itself on Abortion Messages: "Reversing course, Verizon Wireless announced today that it would allow an abortion rights group to send text messages to its supporters on Verizon's mobile network." David Lazarus, LA Times, Corporate propriety yields to free speech: "The company was now trying to work out a new policy that would accommodate the widespread use of text messages but also prevent ostensibly offensive material from traversing Verizon's network -- hate speech, for example, or porn."

The Department of Justice weighed in on the net neutrality debate and filed ex parte comments with the FCC, In re: Broadband Industry Practices, suggesting that the FCC "should be highly skeptical of calls to substitute special economic regulation of the Internet for free and open competition enforced by the antitrust laws." The filing argues in favor of avoiding regulation and letting the market sort things out.

Letting the market sort out broadband internet access might be less than optimal public policy, if the market for broadband access is not competitive.

When broadband providers have market power in a local market, it creates the possibility for those providers to discriminate against content creators.

In a recent ISP Planet reports, Top 21 U.S. ISPs by Subscriber: Q2 2007, the top 5 providers nationally (SBC, Comcast, AOL, Verizon, Roadrunnner) accounted for 56.5 percent of the total market.

But on a local basis, each local market may be even less competitive. A Consumer Reports survey found that in many markets, there is no competition for broadband service, "The consumer broadband market has been a seller’s market, often limited to a single provider. Our survey underscored the lack of choice: Of readers who used any type of broadband service, 22 percent said they had chosen their type because it was the only broadband option available."

Unlike in other contexts, in telecommunications, does deregulation not encourage competition? Is local broadband service more competitive than sources for organic food?

More links:
Frank Pasquale, Concurring Opinions, Questionable Advice On Net Neutrality: "The DOJ Antitrust Division's just-released public comment on net neutrality (available here) has been getting a lot of press. Unfortunately, it appears that the shoddy analysis that Jack Goldsmith saw in the DOJ's torture memos may also be infecting its approach to net neutrality."

Brett Frischmann and Barbara Van Schewick, Network Neutrality and the Economics of an Information Superhighway: A Reply to Professor Yoo: "Network neutrality has received a great deal of attention recently, not just from legal academics and telecommunications experts, but from our elected representatives, the relevant agencies and the press. Our representatives have held multiple hearings on network neutrality and are actively considering whether to include a provision aimed at preserving network neutrality in pending telecommunications reform legislation. The Federal Communications Commission and the Federal Trade Commission are also considering the issue. The press has been drawn to the debate by declarations that the fate of the Internet as we know it is at stake."

And some coverage of net neutrality issues at the Future of Music Policy Summit:
News.com, Senator: Net neutrality push ain't over yet "Some people say, well, but it's a competitive marketplace, if one of the big interests tries to charge for its pipes..the customer will go elsewhere, it's a competitive world," Dorgan said. "Well, I'll tell you what, you're studying different economics than I am if you think this is competitive

FMC Summit Policy blog: Leveling the Playing Field: how does broadband policy affect musicians?

Here are three recent studies about the state of broadband in the US and the world. The short takeaway is that the US is a second-tier country-- at best-- as far as information infrastructure. That is largely due to the fact that the market for broadband is not competitive in the US. If it is at all available to them, Americans typically obtain broadband service from the incumbent cable company and the incumbent phone company at speeds that are little better than they were 5 years ago.

Internet Innovation Alliance Broadband Factbook

OECD: OECD Communications Outlook 2007

FTC Staff Report: Broadband Connectivity Competition Policy

Susan Crawford, Moving Slowly in the Fast Lane: "The Federal Communications Commission, our national communications regulatory body, is asking the wrong questions and heading in the wrong direction. We need new leadership in this country that has the political muscle to implement radical change. A key national priority, on a par with funding Head Start programs and adequate national healthcare, must be to ensure that access to an unfettered internet is universal, speedy, and cheap."

Newsweek: True or False: U.S.'s Broadband Penetration Is Lower Than Even Estonia's: "Maybe our proud nation is going through some rough spots, but at least we have one shining and perpetual triumph: the Internet. People may refer to it as the World Wide Web, but its capital is Silicon Valley and the United States is the big dog tapping the global keyboard. At least that's what we thought, until the news broke in April of a report by the international Organization for Economic Cooperation and Development that ranked the high-speed broadband adoption of 30 countries in the developed world. The United States was not first. Or second, or third. It ranked 15th."

David Weinberger: Delaminate the Bastards!: "Once upon a time, when this nation's telecommunications infrastructure was owned by a monopolistic industry, all the phones were black, long distance was incredibly expensive, and if you had a great idea for an innovative service using the telephone system, you were free to write a letter to the telephone company and suggest they look into it. About once a decade, the telephone company would introduce something new — touch tone phones, 800 numbers, and, yes, the pink Princess Phone for the ladies."

David H. Deans: U.S. Broadband: Is it Half Empty, or Half Full?: "Is the U.S. broadband glass half-empty, or half-full? You decide. The 12 percent growth rate from 2006 to 2007 trails the 40 percent increase in the 2005 to 2006 timeframe, when many people in the middle-income and older age groups acquired home broadband connections."

Save the Internet Blog: Painting over Broadband Failures with Pretty Pictures: "The near absolute control of phone and cable giants is being bolstered by a Washington establishment that’s loath to upset this imbalance of power. The results are now beginning to show in survey after survey that reveal nationwide broadband failures."

Eric Bangeman, ars technica: New OECD report shows limitations of US broadband public policy: "The countries with the lowest cost per megabit per second are generally characterized by two things: a significant fiber infrastructure and a healthy amount of competition. In Japan and Korea, for instance, fiber is widespread, resulting in the fastest residential broadband speeds available anywhere. In Europe, the regulatory environment allows consumers in many countries to choose from any number of DSL and cable providers."

John B. Horrigan, Pew Internet and American Life Project: Why it will Be Hard to Close the Broadband Divide: "ccording to the Pew Internet Project's February 2007 survey, 47% of American adults have broadband at home, nearly double the 24% penetration level of three years earlier. With home broadband penetration poised to surpass 50% this year, it will have taken 9 years from the time the service became widely available for home high-speed to reach half the population. To put this in context, it took 10 years for the compact disc player to reach 50% of consumers, 15 years for cell phones, and 18 years for color TV"

But the piece de resistance is this article from Spiegel, which illustrates the difference between the US and France. France encouraged competition and required incumbent carriers to allow competitors access to lines. The result is that France has faster broadband available at lower cost and competitive carriers are not simply riding on the incumbent providers facilities, but actually investing in new competitive facilities. France's Broadband Boom: Vive la High-Speed Internet!: "What a difference a few years make. In 2001, France had one of the weakest markets for broadband Internet access in the developed world, with less than a quarter of the penetration of the U.S. Today, it has sailed past the U.S. to become one of the world's most wired nations, with more than one in five inhabitants enjoying high-speed Internet connections."

How can the US catch up to the rest of the world? By encouraging competition in the broadband market. That is the goal that broadband policy should be striving to achieve-- not the Bush Administration's policy of protecting incumbents from competition, but promoting real competition.

Last week Verizon and YouTube announced a deal that will allow Verizon V-Cast subscribers to stream YouTube videos to their mobile phones: YouTube in deal with Verizon: "Only pre-selected high-quality videos will be available for viewing on Verizon's YouTube channel. Users are also be able to upload to the YouTube Web site after shooting video on a Verizon phone. YouTube, which was founded in February 2005, reports 100 million video views a day."

So Verizon customers will be able to watch only selected and pre-approved YouTube videos, not their friends' latest video, but the ones intended for mainstream audiences. (But also, presumably, not the ones that are copyrighted works or those excerpted from copyrighted works.) A non-neutral internet service would probably look something like this kind of mobile phone internet service-- a pre-approved medium that shares little in common with the freewheeling public internet.

On the other hand, the good news is that the deal seems to be good for individual creators who are using their phone videocameras. It would seem to make it easy for individuals to upload video directly from a phone camera to YouTube. It would make phone video creators able to contribute directly to the freewheeling public internet from their phone. That could make primary source video of newsworthy and interesting events available worldwide almost immediately. That could be impressive.

Does a closed service that lets only selected video into the walled garden but lets everything out into the rest of the world promote free speech or hinder free speech?

FTC Commission Jon Leibowitz briefly touched on the competition law aspects of network neutrality and last-mile access in a speech at the FTC “Protecting Consumers in the Next Tech-ade” Hearing earlier this month: The Changing Internet: Hips Don’t Lie

Some of the most important issues regarding Net Neutrality involve transparency and disclosure. Will carriers block, slow, or interfere with applications or services? If so, will consumers be told all of this before they sign up? To my mind, failure to disclose these limitations would be “unfair or deceptive” in violation of the FTC Act.

Net Neutrality also invokes complicated competition issues. The last mile of the Internet is its least competitive. Nearly all homes in the US – upwards of 98 percent – that receive broadband get it either from their cable or telephone company. Up until now, the relative neutrality of the Internet has meant that competition and innovation elsewhere in cyberspace has not been affected by the market power of the telephone and cable companies. But if these companies are able to discriminate, treating some bits better than others, there is a danger that their market power in the last mile can interfere with the growth, character, and development of the Internet.

To be sure, there is another side to the debate. The ability of providers to charge more for time sensitive applications and content that takes up more broadband may encourage them to make necessary investments. That’s a goal that all of us should support.

Taking a step back from the framework of competition law or even telecommunications law, Susan Crawford is thinking about the big picture of communications policy: Searching for a principle "At the moment, federal telecommunications policy seems to have no coherent set of goals. We have complex and separate regulatory structures covering telephony (wired and wireless), broadcasting, cable television and satellites. Although there is no express delegation by Congress to the FCC to regulate the internet, the FCC sometimes imposes heavy-handed rules (E911 and CALEA for VoIP) and sometimes claims that its chief goal is to be deregulatory."

On PBS, Bill Moyers looks at net neutrality, The Net at Risk: "The future of the Internet is up for grabs. Last year, the Federal Communications Commission (FCC) effectively eliminated net neutrality rules, which ensured that every content creator on the Internet-from big-time media concerns to backroom bloggers-had equal opportunity to make their voice heard. Now, large and powerful corporations are lobbying Washington to turn the World Wide Web into what critics call a "toll road," threatening the equitability that has come to define global democracy's newest forum. Yet the public knows little about what's happening behind closed doors on Capitol Hill."

If there was ever a reason for why a corporate-controlled internet might not be such a bad idea, it is this video from "internet celebrities" Tron Guy, Leslie Hall and Peter Pan… If it was the Star Wars kid and Mahir, then you might have something.

Is anyone who matters going to care about net neutrality if a non-neutral, discriminatory internet means simply that Tron Guy, Goatse or the latest All Your Bases Are Belong to Us mashup might take longer to load?

Does "God Save the Internet" by "The Broadband" (Note: not the excellent NYC band Broadband) fall on the lame side of the spectrum of creative advocacy?

CDT: Focused Internet Neutrality Legislation Warranted To Protect Open Internet: "In the absence of legislated safeguards, there is a real risk that today's network operators could choose not to retain the core elements of Internet neutrality. This risk, and the potential consequences, are simply too great to take no action. Once new, non-neutral networks and business arrangements have been put in place, overturning them is likely to be extremely difficult. Legislation is warranted to ensure that neutrality will continue to be factored into network architecture and business plans from the start."

Full CDT report: Preserving the Essential Internet

Daniel Weitzner, MIT: The Neutral Internet: "The debate thus far, however, has proceeded on the mistaken assumption that this is an either/or choice; that we have to choose between a non-discriminatory, slow, insecure network or a potentially discriminatory, high-speed, cleaner Internet tied together with other broadband services. This paper argues that it is possible to preserve the neutral, non-discriminatory essence of the Internet, without sacrificing future growth of new Internet services and other broadband infrastructure."

NewsForge: Today's cell phone system argues for retaining network neutrality: "It turns out that we have a privately owned and controlled network all around us, one that closely mirrors the technical functionality of the Internet, but where there has never been a requirement for net neutrality: the US cellular phone network."

Sen. Ron Wyden (D-OR) pledges to hold any telecom bill that does not protect a neutral internet: Wyden Blocks Telecom Legislation Over Ineffective Net Neutrality Provision: "The bill makes a number of major changes in the country`s telecommunications law but there is one provision that is nothing more than a license to discriminate. Without a clear policy preserving the neutrality of the Internet and without tough sanctions against those who would discriminate, the Internet will be forever changed for the worse. This one provision threatens to divide the Internet into technology `haves" and `have nots." This one provision concentrates even more power in the hands of the special interests that own the pipelines to the Internet."

And finally, a modest proposal for broadband policy from Andy Kessler in The Weekly Standard: Give Me Bandwidth… No one to root for in the net neutrality debate: "Telcos and cable companies have no choice but to lobby for legislation that bars neutrality. Because without the ability to extract money from the webbies for the use of their not-so-fast Alexander Graham Bell-era wires (forget that you and I already overpay for this), AT&T or Verizon might not have any business model going forward. With no real competition, they'd rather keep U.S. telecommunications in the Flintstone era and overcharge for calls to Grandma than upgrade their networks. Since 1998, telecommunications companies have outspent computer and Internet firms on politicians $231 million to $71 million, just to keep the status quo."