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Net Neutrality, ICANN, and other issued related to internet infrastructure

Evaluation of the Comcast/BitTorrent Filing — Really Excellent, Except For The Gapping Hole Around the Capacity Cap.

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After Comcast surprised me with their filing on Friday, I really wanted to believe they had turned a corner. Not to anthropomorphize too much, but I had hoped that Comcast had gotten such a bad public relations disaster out of this that they were determined to work so hard to be good little puppies that even a Democratic Congress, Democratic President, and Democratic FCC would believe that the we no longer needed rules. And I would be totally down with that (their behaving that is, we still need rules). I love it when companies learn their lesson and stop misbehaving. Remember, public policy is (IMO) all about result. If swatting Comcast on the nose like a naughty puppy gets them to stop pooping on their customers, then they deserve a pat on the head and a tummy yummy treat when they behave.

But I’m having a “Columbo moment” here. For those who did not grow up in the 1970s and therefore do not recognize the reference, Columbo is a television detective who every episode goes to talk to the chief suspect about the circumstantial evidence, and the chief suspect always has a fully prepared and perfect alibi. On the way out, apparently as an afterthought, Columbo will turn around and say: “there’s just one thing that bothers me.” This question on a minor inconsistency turns out to open a gaping hole in the suspect’s alibi and — in classic television fashion — allows Columbo to solve the crime by the end of the show.

I do not pretend there is any mystery here left to solve. Comcast’s filing very neatly explains their past practices, how we reached this point, and how Comcast intends to change its practices. It includes benchmarks for performance and a plan for informing its subscribers. It looks exactly like what the Commission ordered.

There’s just one thing that bothers me. Footnote 3 of Attachment B. Comcast stresses in footnote 3 that its 250 GB per month cap is not a network management policy, is not a replacement for its current network management practices, and therefore is not actually a proper subject of this disclosure report. Now why did they go out of their way to say that?

If you will excuse me, sir, while I adjust my raincoat, a bit more analysis below . . .

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ESPN360.Com Locks Up It's Content — Let The Fragmentation Games Begin!

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There’s been a lot of back and forth over whether letting broadband providers lock up content, or content providers lock out ISPs, is a good thing or a bad thing. And now, ESPN360.Com is going to kick off the fragmentation games and let us all find out.

It is a fine old Republican free market anti-deregulatory tradition to deregulate critical infrastructure and hope for the best, pooh-poohing doomsday predictions as ignorant exaggerations and fear mongering by business-hating regulation-loving quasi-commies. And since this philosophy worked so well with our financial sector, we have now moved it to the next major engine of the economy — broadband.

I am so excited! For those who have developed a taste for Lehman Bros-type thrill rides, the ESPN360.com deal will bring back fine memories of your first subprime derivative. You (and the rest of us along for the ride) can look forward to the thrill, the excitement, the dramatic highs and lows of playing high stakes roulette with our digital future. True we’ve lost our mortgage money (literally and metaphorically) playing “follow the Subprime queen.” But don’t worry. As any economist will tell you, the combination of a lack of information, high transaction costs, complex interrelated markets, and poorly understood network effects is just tailor made for that wild west anything goes atmosphere that made all them miners rich in the Sacramento gold fields!

Bet our critical infrastructure? How can we afford NOT TOO!!!

Details below . . .

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I Am Pleasantly Surprised By Comcast Complaince, But Am Still Nasty And Suspicious By Nature.

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Well, after saying that while Comcast might fully comply with the FCC’s requirement to report on September 19, but I expected them to play games instead, Comcast handed me a very pleasant surprise. Not only do they appear to have made a thorough disclosure of their current network management practices and their future network management plans, not only have they submitted the required compliance plan with benchmarks, but they actually served me with an electronic copy. As I pointed out last time, this last was not required but is generally good form.

The downside, of course, is that I must go and actually read the filings. That nasty suspicious nature they beat into me at law school rears its ugly head again. Still, it’s a “problem” I enjoy having so I can’t really complain.

But it looks like Comcast has decided that its best interest lies in complying and getting this behind them (with the exception, of course, of the Petition for Review). While I am by no means ready to lower my guard and drop my own Petition for Review (that nasty suspicious nature again), I give credit where it belongs. At first glance, Comcast appears to have complied as thoroughly as I could wish. Assuming this bears out after proper verification, I hope I am pleasantly surprised a second time when Comcast complies on schedule.

Stay tuned . . . .

What Will Comcast Do Today? First Compliance Check On Comcast/BitTorrent Order.

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Back on August 20, the FCC released its Order resolving the complaint against Comcast for blocking P2P protocols. As part of the remedy, the FCC ordered Comcast to provide a full report on its current “network management practices” within 30 days, along with a transition plan for how it intended to manage traffic after it discontinued its current practices. The FCC then invited Free Press and anyone else interested to keep a sharp eye on Comcast.

Comcast has sworn up and down that it will comply with the FCC’s Order and it is only appealing in the D.C. Circuit as a matter of principle. I, nasty cynical public interest dude that I am, so doubt this noble intention that i have filed a law suit of my own to get the FCC to clamp down on Comcast now. So, here we are at last on September 19. What does Comcast do?

Comcast has a range of options. Comcast could refuse to comply, forcing the FCC to take action and potentially giving Comcast grounds to go to the D.C. Circuit for an emergency stay. I think that pretty unlikely, given what a big deal Comcast has made about complying.

Comcast could fully comply. But, to paraphrase Arlo Gutherie, that isn’t very likely and I don’t really expect it.

What I expect is for Comcast to file something incomplete, possibly with a request for the FCC to protect its proprietary data. But more likely they will file something that will be just enough compliance to present Kevin Martin with a nasty political choice: Does he enforce the letter of Order and go in guns blazing against Comcast, knowing that Comcast will make great political hay of his supposed “vendetta” against them? Or does he let Comcast thumb their noses at him and — in addition to the humiliation factor — have public interest groups question whether he really intend to enforce that end of the year deadline and thus call his hard-won consumer protection credentials into question? The situation is further complicated by the internal politics of the Commission. Whichever choice Martin makes (and he gets to make it himself, since it is an enforcement action and not subject to a vote of the full Commission), it is almost certain that two Commissioners will call him on it publicly. McDowell and Tate are almost certain to regard whatever fig leaf Comcast files as sufficient, whereas Copps and Adelstein will likely raise a hue and cry if Martin lets Comcast get away with filing an incomplete report.

As an aside, I also expect Comcast to file after close of business and to do so by hand rather than electronically, so that the content is not immediately accessible. I also do not expect to get a service copy, despite being counsel to complainants. That’s perfectly legal of Comcast, as it can take the position that this is a report to the FCC and not a pleading that needs to be served on the complainant or complainant’s counsel. But it does mean I don’t expect to see what Comcast actually filed until sometime next week.

Happily, I put my trust in the advice of the Bible and do not put my trust in princes — or FCC Commissioners. In this case, the pending Petition for Review gives us a certain leverage, and Comcast will have to consider that it will have a tough time arguing my Petition is moot and pointless when they are not actually in compliance with the FCC’s Order.

Perhaps I misjudge Comcast. It would certainly make my life easier if they just complied and filed something open that detailed their past practices and explained how they planned to go forward (including details of he 250 GB cap). In particular, I very much want to know if Comcast intends to exempt its own content from the 250 GB cap. That would be rather anticompetitive, and without any actual rational connection to the stated need to reduce last-mile congestion. Comcast originated packets running from the head-end to the subscriber take up as much capacity as non-Comcast originated packets.

See, there goes that nasty and suspicious mind of mine again. Still, I hope I’m wrong and Comcast comes clean.

Stay tuned . . . .

Comcast Wins Lottery on BitTorrent Appeal.

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Yesterday, the Panel on Multijurisdictional Litigation (PMJL) awarded the Comcast-BitTorrent Appeal to the D.C. Circuit. Obviously I would prefer to be elsewhere for the same reason Comcast wants to be there (despite being actually located in the Third Circuit), i.e. the D.C. Circuit’s reputation as being a pro-industry anti-regulatory bunch of judicial activists who don’t give a squat about actual case law. Still, since some of our strongest precedent is from the D.C. Circuit, and the D.C. Circuit has surprised Comcast in the past, I am not exactly weeping in despair here.

In a portent of things to come, Comcast also filed a challenge to our standing with the PMJL. I expect this to be renewed in the D.C. Circuit once the cases are consolidated.

Anyway, for those following the sequence of events, the Ninth, Second and Third Circuits will now transfer the cases to the D.C. circuit, which will consolidate them. Folks will have a chance to intervene in either or both sets of cases, and parties may also try to file other motions (e.g., motion for stay, motion for expedited trial). Anyone involved in the matter below (or having an interest impacted by either our Petition or Comcast’s) has a right to intervene — either on the side of the FCC or on the side of Petitioner. Also expect cross intervention where parties who like the FCC’s decision in the Comcast-BitTorrent case intervene in support of the FCC and against Comcast and in support of us and against the FCC. Or in support of Comcast in the Comcast appeal and in support of the FCC in ours. PArties may also file for permission to appear as amici for one side or another.

After the time for interventions passes (which I am too lazy to calculate at the moment), and the court resolves any pending motions, the court will set a briefing schedule. It is too early to guess the time frame until we see what motions parties file (other than interventions).

Stay tuned . . . .

The Comcast Bandwidth Cap — Blame Florida (and lack of competition and refusal to upgrade).

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As all the world knows by now (the world that follows this anyway) Comcast has imposed a new bandwidth cap, limiting downloads to 250 GB/Month. Unsurprisingly, some folks blame the FCC’s recent decision on prohibiting Comcast from blocking BitTorrent and other p2p applications as pushing Comcast to make this change, although Comcast itself has repeatedly stressed that it was not compelled to do this and planned to do this anyway so no biggie.

What the world did not know, but I thank PK’s Art Brodsky for finding, is that Comcast agreed to clarify its cap as part of a settlement with the Florida Attorney General’s office. As some of us have observed for awhile now, Comcast long had a policy of cutting off “bandwidth hogs” for exceeding a capacity cap while refusing to say what the actual capacity cap was. Well, on July 29, Comcast agreed to make clear their capacity cap and pay $150K in fines.

I highly recommend reading the full terms of the settlement — particularly the factual background which Comcast has agreed is true (without, of course, admitting wrongdoing). Of greatest import, until it announced the 250 GB/month cap, Comcast did not have an actual hard and fast cap. Rather, according to Paragraph 5 of the factual stipulations, Comcast simply knocked off the highest 1000 users regardless of their actual bandwidth usage or geographic location. Comcast is almost certainly telling the truth when it says the highest 1000 users were atypically intense bandwidth consumers. duh. Of course the top 1000 out of 14.4 million will be at the high end of the curve.

No, the more interesting question is what the hell kind of a system is it where Comcast simply goes after the top 1000 users no matter how much they actually use, and why Comcast would adopt such a policy if it wants to reasonably manage network congestion? It seems rather . . . inefficient and arbitrary. Unless, of course, one is trying to save money running a crappy network and generally discourage high-bandwidth use.

Apparently, the Florida Attorney General also thought a policy that simply shut off the top 1000 users every month regardless of actual use or congestion did not meet proper standards of consumer protection or “reasonable network management.” The settlement requires Comcast to state clearly what it means by “excessive use of capacity” in its acceptable use policy (AUP). That’s it (as well as paying $50K for attorneys fees and other associated expenses to the AG for bring this action). Comcast has total discretion to set a limit or have a limit or change a limit, as long as there is (a) an actual fixed limit, and (b) Comcast clearly communicates to its subscribers what that limit actually is. This is in line with the settlement reached last year between Verizon Wireless and the NY AG’s office that Verizon would no longer advertise its wireless internet access package as “unlimited” but would provide a hard monthly cap.

Which explains why Comcast is not going around telling the world that it adopted bandwidth caps because of the big bad awful FCC and their wicked regulatory ways. They didn’t. Rather, Comcast was using an even more ridiculous bandwidth cap the entire time, and they were required as a matter of consumer protection law in Florida to actually come clean with a real number so customers can find out what they are paying for and get full value for their monthly subscriber fee. It seems Comcast has sense enough not to play those kinds of games on something so easily verifiable. Good for them. Nice to see they learn from experience.

Stay tuned . . . .

If I Love The FCC's Comcast-BitTorrent Order So Much, Why Did I Appeal It?

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So last Friday, Media Access Project filed 3 Petitions for Review asking the federal courts to order the FCC to order Comcast to stop blocking p-2-p immediately. None of this wait until the end of the year crap. We filed on behalf of Vuze.com (in the Ninth Circuit), Consumers Union (Second Circuit), and PennPirg (a member of Consumer Federation of America) (Third Circuit).

Comcast, for its part, filed in the D.C. Circuit. I have not heard of any other filings, but it is possible.

More details, and what comes next, below . . .

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The FCC Releases the Comcast Complaint Order Part I — Why This Is A Huge Win.

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The FCC just released the text of the Order adopted on August 1 finding for Free Press on the Comcast Complaint and Declaratory ruling and denying Vuze’s Petition for Rulemaking. You can get the pdf here.

Larry Lessig pretty much says it all with his letter commending the FCC on its decision. For myself, I see this as another in a series of important wins, building on previous wins. Read it, particularly the footnotes, and you will find reference to the C Block openness conditions, the Adelphia Transaction Order, and every other baby step along the road that proved absolutely critical to getting us this far.

And, just as with those victories, we did not imagine for one moment that we had finished our task or that we had solved our problems. The danger to an open internet that remains a platform “as diverse as human thought” in the face of broadband providers trying to convert it into a combination shopping mall, movieplex and theme park continues. But we prevented Comcast from creating an “industry standard” around blocking or degrading peer-2-peer applications and put every ISP on notice that they will need to make real disclosure of their “network management practices” when those practices block or degrade subscriber choices. That the market would not respond on its own — at least not in a positive way — is evidenced by the fact that Comcast, despite all the negative publicity, promises to change, etc., is still targeting bittorrent. To the contrary, had we not acted, I do not doubt that other broadband ISPs would, over time, have adopted this and similar techniques, and without notifying their subscribers in any meaningful way.

We have also created another positive precedent for the day when a future FCC or Congress will adopt rules that provide the level of protection we need to maintain an open and competitive internet. This FCC opinion establishes the jurisdictional basis for any future rulemaking and, while declining to adopt rules now, explicitly states that the FCC retains the jurisdiction to create rules in the future — noting that the Carterfone network attachment rules began as an adjudication and ultimately culminated in Part 68 of the Commission’s rules. Despite a raft of theories (conspiracy or otherwise) to the contrary, this Order does not weaken our efforts to get general rules or get legislation passed. To the contrary, by recognizing that rules protecting the openness of the Internet further the important interests of the First Amendment (Par. 43 n. 203), this Order strengthens our ability to get rules or legislation in the future.

While it leaves certain critical questions — such as whether a third party can pay a broadband access provider for “premium” treatment regardless of user preferences — unresolved, it does so in a way that leaves us free to come back without any bad precedent or presumption. Copps and Adelstein can continue to press for adoption of a fifth principle on non-discrimination without fear that voting for this Order somehow put them in a box.

More below . . . .

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Why Verizon Should Give Away FIOS Connections and Get People Addicted to Speed.

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I just got a postcard from Verizon telling me FIOS will soon be available in my neighborhood. While I’m probably one of the last residential CLEC subscribers in the United States, I’m a firm believer in the idea that fiber is better and have been waiting for FIOS to become available so I can look at switching.

Then I saw the prices. Yuck. Verizon prices its FIOS as “competitive” with cable and other providers in my region — for a premium service. But it takes more than competitive to get me to go through the hassle of switching, especially when I am reasonably comfortable with my service right now. Switching doesn’t just mean spending several days going through hook up Hell and having Verizon install some super duper power pack on my premises. It also means changing a whole bunch of things tied to my (or my wife’s) current email address. That’s no small deal.

Meanwhile, as everyone knows, the cable operators did better at gaining new broadband customers in Q2, although uptake for broadband was generally anemic. Not surprisingly, Verizon defends its performance on its policy blog. Besides the usual (when you do poorly) inveighing against looking at a single quarter. Verizon points to a number of indicators that its FIOS system is the top dog system in the U.S., with possible top speeds of up to 50 MBPS and usually providing its advertised speed (I love that as a selling point!). Still, analysts argue that Verizon is pricing itself out of the market, and should go back to DSL.

I have a different take. I think VZ needs to get people addicted to speed.

More below . . . .

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Cable Lobbying and the “All Things Orange” Rule.

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Imagine for a moment my local school board is considering a measure to fight childhood obesity by banning “unhealthy” food and requiring that school vending machines only provide “healthy snacks.” Now suppose I am a vendor of things such as nacho flavor chips, cheese doodle equivalents, and other foods of a similar nature. Expecting that such a rule would make it more difficult for me to sell my products, I raise my hand at the school board meeting and engage in the following line of argument.

“Are oranges healthy food?”

“Yes,” the relevant official replies.

“Are carrots healthy food?”

“Yes.”

“So all things orange, like carrots and oranges, are healthy foods. Good.” Whereupon I sit down.

Subsequently, I try to sell my nacho chips and cheese doodle equivalents to schools. When informed they are not “healthy snacks,” I become quite upset. I invoke the “Rule of Orange Things” that declares that we need to treat all orange things fairly by treating them the same, so we either have to let me sell nacho chips or ban people bringing oranges and carrots. I will also complain that there is no way I could possibly have known that nachos and cheese doodles might not be “healthy food,” since they have an FDA mandated nutrition label (so they must have nutrition) and who the heck knows what “healthy food” means anyway, since we can see that many nutritionists are now down on juice and even on certain fruits or other foods long considered healthy alternatives to cookies and sugar sodas.

In such a situation, most of us would have no problem saying that nacho chips and cheese doodle equivalents are not “healthy food” despite being orange — because what makes oranges and carrots “healthy food” has nothing to do with their color. Most of us would also agree that while their may be some marginal cases around things like apple juice v. water v. soda, there is no definition of “healthy snacks” in use outside the junk food biz that would include nacho chips and cheese doodles — mandatory “nutrition label” notwithstanding.

Which brings us to the National Cable Telecommunications Association (NCTA) filing last Thursday just at the close of the bell in the Comcast/BitTorrent complaint docket (because the FCC issued a public notice for the meeting at which it will decide the complaint, the docket is now closed).

A bit more below . . .

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