Of CDNs, Netflix, Net Neutrality, and Cable Fu#$@!ery.

I keep seeing a steady stream of articles that basically go through the following analysis:
1. ‘Net Neutrality is about treating all bits equally.’
2. ‘The Internet has never done this. Particularly we have this thing called ‘content delivery networks’ or ‘CDNs,’ that have been a vital part of moving content around the Internet for over 15 years. CDNs are awesome and wonderful and the Internet couldn’t work without them or other means of moving content around and stuff.
3. All that fuss about Netflix and Comcast (and Verizon and other carriers) is just about CDN stuff and Netflix not wanting to pay money it really ought to pay Comcast because, well, CDNs.
4. Don’t you feel silly now about that whole silly Net Neutrality thing, silly ignorant person?
This piece from Wired by Robert McMillan called “What Everyone Gets Wrong About Network Neutrality” that a bunch of folks seem to have gone all swoony over is rather typical of the genre, but you can find other examples readily enough like this piece from Geoff Manne or this one from Brendan Sasso.
There are a bunch of problems with this analysis. Notably:
1. As demonstrated by this op ed raising similar arguments in 2010, content delivery networks (CDNs) and other ways in which the Internet does not “treat all bits equally” are not some fantastic new discovery that no one in the network neutrality movement has figured out. We all know about CDNs and other forms of prioritization imbedded in the network.
2. This does not violate network neutrality because network neutrality is not about “treating all bits the same” or other dumb ass strawman type arguments the anti-network neutrality folks would like this to be about. This takes a basic high-level description that people use to illustrate the basic concept of network neutrality, and confuses it for the more sophisticated application of the principle. It’s like claiming that we can’t possibly have laws against race or sex discrimination in the workplace because “equal pay for equal work” means “pay everyone exactly the same wage all the time for every single job everywhere” and then arguing how rigid application of “equal pay for equal work” ignores things like cost of living in your local area and would prevent merit pay raises.
3. The actual idea behind network neutrality is that last-mile ISPs, like Comcast, Verizon, AT&T or even scrappy little uncarriers like T-Mobile who are trying to give you something free rather than leverage market power should not pick winners and losers by using their unique position as the access provider to the Internet to favor one application or service over another.
Or, stated more simply, John Oliver is right. What we mean by “Network Neutrality” is “stop cable f#@!ery.” How things like the Comcast/Netflix fight and CDNs fit into this broader concept of “stop cable f#@!ery” or — for polite company — “network neutrality” has been covered fairly effectively by Tim Lee over at Vox, and Stacey Higginbotham at GigaOm. As to whether the Netflix/Comcast business fits into the existing network neutrality rules or needs to be handled as a potentially different sort of “cable f#@!ery” called “interconnection f#@!ery” (assuming we decide Comcast was wrong in the first place, a public policy question that remains unresolved at the moment pending more information), you can see conflicting views on that between myself and my friend Marvin Ammori.
Below, I demonstrate the fallacy of this “if you all just understood about CDNs and stuff you wouldn’t want this silly network neutrality’ thing” by comparing it with the two cases we’ve actually used the FCC to enforce network neutrality, Comcast/BitTorrent and AT&T/Facetime. I will then briefly touch on the ‘where does Comcast/Netflix’ fit in all this.

The Zombie Anti-Net Neutrality Arguments The D.C. Circuit Already Rejected.

I do not expect folks to be models of consistency, or to give up on arguments and talking points they have memorized. I also readily agree that a lot of times the same set of facts or a particular statute or set of cases can lend itself to multiple interpretations. but at some point — unless you are either a religious fanatic or deliberately disingenuous — you have a responsibility to admit that the courts disagree with you (at least when talking about law stuff).

 

For example, as I wrote after the oral argument in the Net Neutrality case (aka Verizon v. FCC) I think Judge Tatel and his fellow jurist are completely and utterly wrong on their interpretation of the supposed “common carrier prohibition” that prevents the FCC from banning paid prioritization entirely (as long as it is a Title I information service). I wish the FCC had appealed this to the Surpreme Court. But they didn’t. I wish the recent 10th Circuit case affirming the FCC on Intercarrier Compensation Reform had addressed this question and created a circuit split to take up to the Supreme Court. But they didn’t. So I’m stuck saying “I think this is stupid and totally contrary to the statute and Judge Tatel just made it up, but it’s the law until the Supreme Court says otherwise.”

 

I bring this up because, as John Oliver recently told everyone, the FCC has (to use Chairman Wheeler’s words) decided to “accept” the “invitation” of the D.C. Circuit to write new network neutrality rules based on the Court’s opinion in Verizon v. FCC.  That means we will play this case as the ground rules. So any arguments the D.C. Circuit already resolved are now decided as a matter of law. But whereas I — dumb lawyer that I am — accept that I am stuck with whatever ignorant, idiotic or just plain wrong thing the two-judge majority voted for, a lot of other people don’t. They go on spouting the same arguments that the D.C. Circuit already rejected AS IF NOTHING HAD HAPPENED while simultaneously arguing that since the D.C. Circuit struck down the network neutrality rules (which is not, in fact, what the court did), the FCC has no authority to make network neutrality rules (which is the complete opposite of what the court actually said.

I go through my list of “Zombie Anti-Net Neutrality Arguments The D.C. Circuit Already Killed Deaded Than A Dead Man On Dead Day In Deadville” below . . .

 

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Policy, Anecdotes and The Problem of The Black Swan. Why Events Like Comcast/Netflix and Fire Island Matter.

Often in policy debates I find myself facing a broad general statement, such as “Wireless is just as good for everyone as wireline, just look at how the market has adopted it.” Or “ISPs would never block or degrade service because they would lose customers.” Point to a counter example, e.g., “Verizon’s effort to replace wireline with Voicelink on Fire Island was a total flop” or “But Comcast, AT&T, Verizon and other ISPs have deliberately allowed Netflix quality to degrade as a negotiating strategy” and the response is invariably “Oh, that’s just an anecdote and you can’t base rules on anecdotal evidence.”

 

Oddly, this throws most people into a tizzy of confusion because (a) they vaguely remember learning something about anecdotes not being proof or something; (b) everyone always says anecdotes aren’t proof; but (c) the general statement is clearly false based on real world experience. People know that “it’s only an anecdote, therefore it doesn’t count” is a bull$#@! answer, but they can’t explain why. Hence confusion and much bull$#@! going unchallenged in policy.

 

In logic, we refer to this as “The Problem of the Black Swan.” No, this has nothing to do with the somewhat racy but very artsy so that makes it OK movie starring Natalie Portman. And, while it is the inspiration for the book by Nassim Nicholas Taleb, it actually means something different. “The Problem of the Black Swan” is a demonstration of the problem of reasoning by induction and falsifiabilty. You cannot prove all swans are white just by finding a white swan, but you can disprove all swans are white by finding a single black swan.

 

While I don’t normally use this blog to teach Logic 101 type stuff, application (and misapplication) of the “Problem of the Black Swan” comes up so often that I will delve into this below. By the time we’re done, you will be able to explain to people who pull that “oh, an anecdote isn’t evidence” crap exactly why they are wrong. You’ll also be able to apply the “anecdote rule” properly so that you don’t get caught in any embarrassing errors.

Elucidation below . . .

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Net Neutrality Videos Much More Interesting Than I Could Ever Make.

It’s impossible to keep up all the videos about net neutrality. Heck, I have been delinquent in flogging my own. For example, I have two new “5 Minutes With Harold Feld” videos out: one on what I call “virtual redlining” (about how permitting prioritized content invariably leads to targeting and segmenting audiences in ways that recreate all the usual stereotypes and re-marginalizing traditionally marginalized communities) and this on “rural virtual redlining” (how allowing prioritization further isolates rural and exacerbates the digital divide).

As you can see from the pathetic hit counts if you click through, my personal contributions are a total flop. Why? Because, in my own words, 5 Minutes with Harold Feld takes “insanely complicated and incredibly boring stuff and make it slightly less boring because THIS STUFF IS IMPORTANT.” So even at my most wildly successful, I am only slightly less boring. This apparently does not help much.

However, lots of much more interesting and entertaining people have used the power of online video — and even traditional media — to provide a much less boring perspective. I’m listing my top 5 Internet videos below the break. Please feel free to add links to your favorites in the comment section, assuming you did not fall asleep trying to watch my videos.

Actually interesting Net Neutrality videos below . . .

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