Series of Tubes

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

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

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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 likethis 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.

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

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

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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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My Handy Guide To The May 15 FCC Meeting: What The Heck Is An Open FCC Mtg And How Does It Work?

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Even before Chairman Tom Wheeler proposed to issue a Notice of Proposed Rulemaking (NPRM) on possible new net neutrality rules to replace the ones vacated by the D.C. Cir. the May 15 Open Meeting of the Federal Communications Commission (FCC) promised to be one of the more important meetings in recent memory.  As a result, it has become one of the more contentious in recent memory as well.

 

In addition to the net neutrality NPRM, we have an Order deciding key issues for the upcoming incentive auction (aka the 600 MHz auction, aka that really complicated thing where we pay broadcasters to get off spectrum they got for free by simultaneously selling it to wireless companies for mobile broadband). This mega item has two fairly important side pieces from my perspective: the future of unlicensed use in the TV broadcast bands (aka the TV white spaces (TVWS) aka “super wifi” aka “engineers will never be allowed to name anything ever again”) and possible limits on how much spectrum any one company can acquire (aka the “no piggies rule” aka spectrum aggregation policies aka “lawyers are not allowed to name anything ever again either”). The TVWS item has its own satellite proceeding about wireless microphones and coexistence between wireless mics and unlicensed use in an ever shrinking broadcast band.

 

So for those of you first timers, and those of you who have gone so long without a contentious FCC meeting you’ve forgotten how it’s done, I’ve prepared this helpful guide on “what is an open FCC meeting and how does it work.”

 

Mechanics of the meeting below . . .

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Tom Wheeler and the Defining Question of Network Neutrality

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Federal Communications Commission (FCC) Chairman Tom Wheeler caused quite a stir last week when he circulated a new Notice of Proposed Rulemaking on network neutrality. As reported by the press, the proposed rule moves away from generally prohibiting wireline broadband providers from offering “paid prioritization” (aka Internet “fast lanes”) to explicitly permitting wireline providers to offer paid prioritization subject to conditions designed to guard against anti-competitive and anti-consumer conduct.

 

Needless to say, this pleased just about nobody. Supporters of network neutrality regard paid prioritization as intrinsically anti-competitive and anti-consumer by making the Internet experience dependent on the ‘commercially reasonable’ deals of the network provider rather than the choice of the subscriber. By contrast, opponents of net neutrality oppose any limitations on what ISPs can do as “regulating the internet.” To employ a crude analogy, network neutrality supporters see Wheeler’s proposal as roughly the equivalent of teaching the rhythm method in sex ed, while opponents are outraged that Wheeler would teach anything other than pure abstinence.

 

What Wheeler has done here is to frame the defining question of network neutrality. The upcoming Notice of Proposed Rulemaking (NPRM) gives those of us who believe that paid prioritization is the opposite of net neutrality and an Open Internet the opportunity to make the case. Even more importantly, Wheeler has now confirmed that the May 15 NPRM will ask whether the FCC needs to reclassify broadband as a Title II “telecommunications service” so that the FCC will have sufficient authority to create real and effective network neutrality rules. (You can see Wheeler’s blog post setting out his proposed approach here, and his aggressive speech in the veritable heart of enemy territory — the 2104 Cable Show in Los Angeles) here.)

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My Insanely Long Field Guide To Understanding FCC Chairman Tom Wheeler Statement On Peering.

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At the press conference following the Federal Communication Commission (FCC) March 31 Open Meeting, Chairman Tom Wheeler made the following observation:

 

“Interconnection is part of the Network Compact.” Peering “is just a $3.50 word for interconnection.”

 

Wheeler followed up this statement by explaining that there was a difference between “network neutrality” and the “open internet” on one hand and “interconnection” as the ‘path to the Internet’ on the other hand. While government has a critical role in monitoring peering/interconnection to protect the values of the Network Compact, it isn’t a network neutrality issue. You can see Wheeler’s full statement here (Start at 144:45 – 147:23 has unrelated stuff in middle) (transcript here).

 

After the meeting, the FCC released a separate statement that they really mean it when they say that they aren’t going to do peering as part of the Net Neutrality rules. While Brendan Sasso at National Journal gets points for noticing that “the FCC could decide to enact separate regulations on the issue or force Comcast to accept new rules in order to receive permission to buy Time Warner Cable,” most folks I’ve read in the press have broadly interpreted this as indicating the FCC will not look into the Comcast/Netflix dispute or complaints by Cogent and Level 3 about large edge-providers squeezing them for higher interconnection fees.

 

Personally, I think most people are totally misreading this. Wheeler’s statements make it look more likely to me that the FCC will start looking closely at the Internet peering market, not less likely, especially as part of the Comcast/TWC deal. Indeed, Comcast’s Chief Lobbyist David Cohen, who ranks in my book as one of the absolutely smartest and most effective telecom lobbyists ever, has already started backing away from earlier statements that regulators would ignore peering issues and that he expects them to look at the Comcast/Netflix deal. (Unsurprisingly, Cohen also said he expects regulators to find no problems with the deal and called Netflix CEO Reed Hasting’s arguments that this eviscerated net neutrality “hogwash.”)

 

Below, I will rant at considerable length that (a) Wheeler is right, this is not a “network neutrality” issue, but the same goddam interconnection issue that we have struggled with for more than a hundred years in every networked industry from railroads to electricity to broadband; (b) The FCC needs to actually look at this and study it and understand how the market works before it makes any decisions on what to do; and, (c) While Wheeler is not saying in any way, shape or form he actually plans to do anything before he has real information on which to base a decision, he is signaling — for anyone actually paying attention — that he is, in fact, going to actually look at this as part of his overall transition of the agency around his “Fourth Network Revolution” and “Network Compact” ideas.

 

 

While this last would seem pretty basic and obvious, it represents a significant change in policy from the previous insistence that IP magic pixie dust obscures all things Internet and makes them invisible to the FCC. Whether I agree with what Wheeler ultimately does or not — and I have no idea what he might ultimately do here, he could decide the market is competitive and working just fine — I don’t believe Wheeler is going to go around with his eyes and ears covered blathering about the magic nature of the Internet. I think Wheeler is actually going to check under the hood and see what actually makes the damn thing tick — and Comcast is just the company to help him do it.

 

Much ranting below . . .

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Phone Number Stability And The Neustar-Telcordia Fight, Why The NANC Meeting Makes Me Nervous.

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[Unrelated Wetmachine Update: We now have email alerts back. You can also follow us on Twitter and like us on Facebook. Never miss another extremely dense, wonky telecom blog post again! We now return to our actual content.]

I confess I have become something of a nervous Nellie about telephone numbers.

 

Boring, humdrum, 10-digit numbers that sit at the base of the telephone system. Most of us never think about how they work. But we rely on them for a Hell of a lot. Contrary to popular belief, what defines the “public switched network” (PSTN) is not a particular technology or means of transmission, but the use of phone numbers in the North American Numbering Plan (NANP) (47 C.F.R. 20.3).

 

Which is why I worry about the upcoming meeting of the North American Numbering Council (NANC) on Thursday. Folks expect that the NANC will address the the current fight between Neustar and Telcordia (now owned by Erickson) to become (or remain) the Local Number Portability Administrator (LNPA) when the current contract with Neustar runs out in 2015. While no one without a financial stake in the outcome (outside a handful of wonks obsessed with phone numbers) has followed this much, the possibility that we may create a destabilizing tug of war around the maintenance of phone numbers during the IP Transition gives me serious tummy queasies when I think about it.

 

At the same time, I recognize that any delay ends up favoring the current incumbent LNPA (Neustar) and that as a pro-competition guy I would like to see Telcordia give Neustar a run for the money and not get subjected to endless delays.

 

But . . . . tummy queasies! Possible meltdown of the phone system and stuff.

 

Details below . . .

 

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A Guide To The Mechanics of the Comcast/TWC Deal. Part IV: Congress, The White House And The Public.

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If you read most of the reporting on the Comcast/TWC deal, you would think that Congress and the White House play a huge role. In reality, as I alluded to in the Part I intro, not so much. The political stuff tends to get over-reported in part because it’s easier (it took me about 3000 words just to explain how the antitrust and the FCC review work never mind any actual reporting), and in part because everyone assumes that Washington is a corrupt cesspit where politics invariably determine outcomes.

 

As always, while the political matters, it plays a much more complicated role in the mix. Below, I will unpack how the political pieces (including public input) play into the actual legal and merits analysis. Again, keep in mind that I’m not talking about merits here. I’m just trying to explain how the process works so people can keep track over the course of the merger review (which will last a minimum of 6 months and may well run for more than a year).

 

Political details below . . . .

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A Guide To The Mechanics of the Comcast/TWC Deal. Part III: The Federal Communications Commission.

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In Part II, I described how the Department of Justice will conduct its antitrust review of the Comcast/TWC. Here, I describe how the Federal Communications Commission will conduct its review under the Communications Act. While the FCC and the DoJ will coordinate their reviews and work together, the two agencies have very different procedures and operate under very different legal standards. (For those wondering why, you can see this article I wrote on the subject about 15 years ago.)

 

Details on FCC process below . . .

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