February 25th, 2008

Noteworthy stuff from the FCC’s network management hearing in Boston

Posted in  Intellectual Property  Politics  Technology 
Author: Tom Giovanetti || Location: Harvard University, Boston, MA

Several longish comments, observations and opinions from the FCC's hearing on broadband industry network management practices at Harvard University in Boston on Monday:

• About 100 people showed up too late to get into the room, and "too late" was an hour before the start of the event. Anticipating a crowd, I showed up about 90 minutes early, and got one of the few remaining seats in the room. It was clear from the applause that both Free Press and Comcast had gotten their crowds out.

• It seemed to me that Kevin Martin had already made up his mind before he arrived at the hearing. It was clear to me from Martin's questions and demeanor that he has no patience for Comcast or their arguments. The entire day, there was only one speaker who was cut off, and that was when Kevin Martin pointedly cut off Comcast's Executive Vice President David Cohen. Martin also insisted on a particular line of inquiry several times, which indicates that it is compelling, at least to him. He kept asking people whether applications like Bit Torrent allow people to consume "more bandwidth than they are paying for." His thought seems to be that Comcast's arguments about Bit Torrent degrading network performance are irrelevant, since if a consumer is "buying 40 Mbps," he is entitled to consume that entire 40 Mbps, 24 hours a day, 7 days a week, regardless. It didn't matter that Comcast's Cohen kept reminding Martin that Comcast isn't selling an unrestricted X amount of bandwidth to its customers, but simply indicates how much bandwidth is typically available, and states that they may have less available bandwidth during times of peak demand. Martin seems to take a rather simplistic view that companies are selling customers X amount of bandwidth, and that companies have an obligation to provide that amount of bandwidth at all times and customers can do whatever they want so long as they don't exceed that amount of bandwidth that they have purchased. Martin also used the hearing to tout his pet idea of the ala carte model for cable.

• Further to that point, Martin's civil lines of questioning were notably directed to every other panelist except for Comcast's Cohen, for whom Martin reserved only a few, combative questions. I suspect Martin intends for the FCC to conclude that Comcast's particular network management practice in this case was wrong and is prohibited, though I don't expect the FCC to make any broader ruling than that. Based on the discussion, my guess is that the FCC intends to build a type of "case law" on network management practices.

• For the activists, such as Free Press, and activist academics such as Yochai Benkler, the network management issue is simply a Trojan horse designed to begin a movement toward unbundling of broadband networks. I have personally believed for a long time that the end game in the network neutrality debate was going to be a call for unbundling, but I've never heard it put so bluntly and transparently as today, when Benkler said that it was a "fateful decision" to move away from unbundling and "embrace duopoly" (as if that were the only other option). Benkler said that even network neutrality was "at best a partial solution to the problem of market failure." So Benkler thinks that the FCC should force network neutrality and nondiscrimination, but that is only a first start on the way to forced unbundling. He said that unbundling was an "American invention," but that we had abandoned our own invention and the Europeans had adopted unbundling and were doing a  better job of it than we did.

• Based on the above observations, I think we can look for a constant campaign of filings by Free Press and their ilk against broadband network management practices. Maybe they'll alternate with EFF just to make it look like a broad-based campaign. It will suit Kevin Martin's preferences, and each subsequent finding of malfeasance will help build the activists' case that only structural separation and/or unbundling can remediate the "constant problems" caused by network owners leveraging their own networks.

• Free Press asserts that Comcast is not simply trying to manage their networks or deal with a particularly troubling application that is bandwidth-intensive, but rather argues that Comcast sees Internet video as the end of cable's domination over video and is trying to snuff out their on-line competition. In other words, video services like Vuze are upstart competitors for Comcast's main business (video). Vuze uses Bit Torrent, so Comcast is purposely degrading the performance of Bit Torrent. It's not a technical network issue; it's an anticompetitive issue, according to Free Press.

• The pro-neutrality people aren't interested in finding common ground or a compromise. One amusing incident was when Tim Wu tried to differentiate between network discrimination for management purposes, and discrimination for anticompetitive purposes. Wu said that he wasn't particularly bothered by discrimination for management purposes, but then Marvin Ammori from Free Press said that discrimination for management purposes was just as bad, and then Tim Wu had to come in and say that he hadn't meant to imply that discrimination for management purposes was okay. Wu was trying to draw a helpful distinction as a means toward some common ground, but his fellow-travellers at Free Press policed him out of it.

• Tim Wu was surprisingly ineffective today, at least in my opinion. He spent a good deal of his precious testimony minutes wandering and rambling about free speech and censorship, which isn't directly relevant to the discussion at hand at today's hearing. Then, he spent his last few minutes talking about some lame-brain idea he has about consumers themselves banding together to purchase the "last mile" of the network infrastructure themselves, so as to remove control over the last mile from the big, bad, communications companies. Neither  was exactly a good use of his time in addressing the core issues, whatever you believe them to be.

• The crowd that is so animated against broadband companies making judgments about types of packets is largely the same crowd that thinks copyright is a scourge and piracy is understandable or even commendable as a way of striking back against "the man." Hence my suspicion that the former is driven by the latter. The activists want to establish a principle that broadband companies should not look at packets, because this will preclude them from working with content companies to combat illegal downloading. It was notable that, while the FCC's network neutrality principles reference the right to access "legal content," the pro-neutrality panelists repeatedly avoided this detail, and seemed annoyed when Commissioner Tate insisted on reminding them of this condition.

• The argument that networks have to be managed, and that some level of management is "reasonable," survived the hearing, which is probably the most important thing to come out of the hearing. But the particular technique Comcast used or is apparently using to deal with Bit Torrent traffic during times of peak traffic came in for a strong criticism at the end of the afternoon. It was asserted that Comcast sent "forged" packets to users which appeared to come from someone else but which actually came from Comcast, and implied that this was unethical. It was also asserted that Comcast could not have done this with without looking inside the packet, which also sounds ominous if you don't believe networks should be allowed to look inside of packets.

• It seems ironic to me that many commentators, while waxing eloquent about the exciting future of Internet applications that will change our lives, seem to miss the fact that, just like Internet applications, the broadband market itself isn't mature, either. New competition will be coming available relatively soon from both wireless and broadband over power lines. The market for broadband is incomplete, and probably still in its infancy. It seems likely to me that there will be new competitors in the market in 5 years under status quo policy. The question is: Will the market for broadband providers expand better, will new competitors enter the market more quickly, with more regulation? I think not, and I think the activists understand this as well, which is why they call for unbundling.

• It was all about criticizing cable today. I'm confident DSL providers have to manage their networks similarly, if not more, though no one had much to say about DSL today. The broadband discussion today consisted of cable and Verizon's FiOS. Cable, compared to FiOS, seems to have a unique need for network management, due to their architecture. But again, just as the broadband market is still immature and expanding, cable isn't finished, either. When we can see that cable is aggressively investing in new technology (Docsis 3.0) to provide much greater bandwidth to consumers, shouldn't we just be a bit patient? Is this the time to start regulating or unbundling, when we haven't come close to seeing the end-game yet? Why is it time to give up on a market-driven approach to broadband rollout? I guess, if you don't believe in markets . . .

In conclusion, my guess is that within a short time, Comcast will see the writing on the wall and announce that, while aggressively maintaining their right and their obligation to manage their network as they deem technically necessary, they have abandoned the particular practice so strongly indicted in the 2nd panel of today's hearing. Because Comcast is a company and not a government bureaucracy, they will get their position statement out before the FCC manages to get theirs out, which will strongly condemn the packet forging technique.

The remaining questions are 1) whether the FCC will go further and forbid management practices that target specific technologies or protocols; and 2) how long it will be before Free Press or EFF file their next complaint.