FCC

Kevin Werbach has to be one of the most interesting and clear thinking communications law/policy people around. He was one of the first to suggest a layers-based approach to communications policy and he's now got a terrific draft paper on the advantages/disadvantages of interconnection vs non-discrimination policies; called Only Connect.

In a nutshell, Werbach makes an interesting (if a bit strained) distinction between "broadband discrimination" (such as a single network provider blocking an IP or disallowing customer practices like server hosting) and "access tiering" (where multiple networks might conspire to prioritize some "content" - either based on application or origin - across their networks) and then proceeds to argue that network neutrality proponents are mistakenly promoting a non-discrimination policy to address what is essentially an interconnection issue ("access tiering"). Moreover, he generally seems to feel interconnection policy is a better tool than non-discrimination and further, that network neutrality advocates ought to consider an interconnection-based alternative.

I'm not entirely convinced. At times Werbach equivocates tremendously. At one point he makes the claim that interconnection benefits competition, while non-discrimination benefits consumers. He qualifies the statement as an oversimplification and then footnotes the obvious - and by no means minor - ways in which the converse is actually the case. Nevertheless, the paper is a great overview and he raises many of the most important and overlooked aspects of the ongoing debate surrounding digital communications regulation.

Also, if you haven't read his paper on the Federal Computer Commission, get a copy; it's going to be a classic someday. (North Carolina Law Review, 12/2005)

I've been saying this for well over a year now: a non-neutral network provides a DISINCENTIVE for telcos to invest in infrastructure. Now the argument has gotten a bit of lift from a University of Florida (UF) study. Apparently some researchers at UF have released a (PDF) study demonstrating how Game Theory supports the same conclusion:

". . . the researchers found that the incentive for broadband service providers to expand and upgrade their service actually declines if net neutrality ends."

Duh! I first mentioned this in a comment on Susan Crawford's blog in early February 2006:

". . . one might argue that allowing 'tiering' would actually provide a disincentive for investment in capacity, as it would only undermine the telcos' justification for lucrative 'tiering' of services. "

and again in a short response to Ofcom's bullet points for a discussion of Next Generation Networks.

I haven't read the study in detail yet, but I'm curious to see what definition of "network neutrality" was used. It occurs to me that enabling QoS tiering of "services" would have the same inhibiting effect as enabling QoS tiering for commercial "content" providers. How can we communicate to thinkers like Wu and Lessig that IPTV is still just IP packets and that allowing QoS based prioritization for such "services" is as bad for a neutral network as allowing it on the basis of commercial contract to "content" providers? Allowing such "services" based tiering is the thin-edge-of-the-wedge and "network neutrality" supporters will sincerely regret the passage of any legislation that allows for it. For similar reasons a number of prominent voices pointed to deficiencies in the AT&T/BellSouth merger agreement. We ignore these voices at our peril.

I remain convinced that an ISO layers-like regulatory approach is STILL the best solution to the regulatory quagmire we presently operate under. Furthermore, I just want to say that the argument that such a framework would lock us into a particular technology is hogwash. An ISO layers, or similar, model is as abstract as any legal framework, but directly reflects the digital nature of the internet and for that reason alone is vastly superior to the present antiquated system (even - especially - after the 96 Telecommunications Act and Brand-X).

I had a great afternoon yesterday doing a little graphic design for a lecture here at CEU (I'd nearly forgotten how I love doing this sort of work). Pete Tridish of the Prometheus Radio Project is coming to talk about his organization and the threat of media consolidation in the US. I immediately thought of a poster from the Paris '68 student riots that would be perfect (at least I thought so). A few hours in Photoshop and here's the result (I helped with the title as well):

All comments welcome! What do think? (I hope I got the French right . . . ack!).

Akamai's Edgesuite product does not break network neutrality.

Apparently critics of network neutrality are still trotting out the argument that Akamai's Edgesuite product breaks network neutrality (most recently, Christopher Yoo raises the claim in a slashdotted interview; (NOTE: Since I originally posted this blog, the article has been substantially edited. Nevertheless, while not as strongly made, the Akamai point is still there) though he originally made the claim much earlier - it's also been raised at times by the likes of Adam Thierer and others). The claim Yoo et al. make is dangerous (I believe) because it relies on an idea of "network neutrality" that seems very much like what some proponents favor, but very unlike what other proponents (including me) argue for. In other words, it's an argument that threatens to divide network neutrality proponents.

Akamai's Edgesuite product can be summarized quite simply. Akamai has a global network of servers which mirror internet content (and dynamic services, it's not just static content - they do some very cool stuff). Edgesuite hosting then uses DNS resolution to direct requests for an online service (HTTP, FTP, SMTP, etc) to one of Akamai's "nearby" (this could be in terms of geography, network distance or even internet traffic patterns - I don't know exactly what they employ, but like I said, they do some pretty cool stuff) servers rather than have the request hump it's way across the globe to find the client's server. By using Akamai's Edgesuite product an Edgesuite client's web-content would then load more quickly than someone who didn't use it, simply because it wouldn't have to "travel as far". Yoo et al. suggest this breaks network neutrality because it enables content or a service provided online to respond more quickly and reliably by purchasing Edgesuite, thus breaking the "level playing-field" that (according to some proponents) network neutrality is supposed to protect.

Yoo et al. (and even some network neutrality proponents) have an unfortunately misguided idea of how network neutrality ought to be understood. The basic idea is captured in a famous (and famously misunderstood) paper by Saltzer, Clark and Reed in which they present the end-to-end principle. The end-to-end principle basically says, if you CAN put functionality at the END of a communication rather than IN the communications medium, then you SHOULD put the functionality at the end. The idea is more or less synonymous with the idea of a "dumb network". What Yoo et al. (and the majority in the Brand-X decision - I still can't believe it) don't seem to understand is that DNS is an example of EXACTLY this principle; i.e DNS is the implementation of a service that sits at the END of the communication and is NOT a part of the communication medium. If you're having trouble understanding this (as Yoo and 6 out of 9 supreme court justices do), pull out your handy-dandy OSI network layers chart and figure out where to place DNS; hint: "applications layer". Network neutrality is NOT about (or at least ought not be about) regulating the applications layer, it's about ensuring the end-to-end principle so that companies like Akamai can innovate at the ends of the network. Far from being an example of breaking network neutrality, Akamai services like Edgesuite are (yet another) example of the kind of innovative application that a neutral network ENABLES!

Richard Whitt, Kevin Werbach and others have proposed regulatory reform based on the network layers model and, in general, it's the best basis for reform I've seen so far. Hopefully the new congress will take their suggestions seriously. I'm open to alternatives, but given the history of our (information and telecommunications) "services" based regime, I think embarking on another definitionally squishy "services" regime where IPTV services, VoIP services and Broadband services dissolve into a litigated mush of regulatory ambiguity is a particularly bad idea.

On that note . . . I hope to blog on FCC approval of the AT&T/BellSouth merger next.

I think Larry blew it in his senate commerce committee testimony on tiered internet services. First, he makes a bizarre distinction - which I'm still having trouble coming to terms with - between the "consumer" end of a communication and the "content" end. Surely L.L. (I still have this image of Larry listening to "mamma said knock you out" before arguing Eldred - is it just me?) knows that this is a distinction that loses more credibility on the net by the day. Sure, in a world of dynamically assigned IP's on low asymmetric-bandwidth connections the ability for Joe User to be a "content" provider is slim, but as bandwidth becomes cheaper, IPv6 rolls out (is this actually going to happen?), etc. I think it's clear that the line between "content" and "consumer" will blur . . . big time. But L.L. makes this distinction pivotal in his testimony, arguing that it's okay to offer tiered access to the "consumer" but not okay to offer it to the "content" provider. Though he makes this argument on the grounds of competition, it's merely befudling in the context of end-to-end network neutrality.

Privileging one end of the end-to-end network is not the biggest error in Larry's testimony however. L.L. makes a far more dangerous and egregious claim near the end of his testimony:

At a minimum, Congress could simply restrict access-tiering by
network providers. That would leave network providers free to offer
consumer-tiered service. But such tiering should not be allowed to
turn upon the particular provider of network content. Instead, such
tiering should be limited to either bandwidth guarantees (e.g.,
guaranteeing at least 10 Mbps) or service guarantees (e.g.,
guaranteeing fast ‘video service’ without specifying a particular
provider).

There's a huge difference between limiting by "bandwidth" and limiting by "service." The latter effectively requires some form of packet inspection, to enable the network provider to distinguish between video, email, file transfer or whathaveyou - a QoS or ToS header is ultimately nothing more than a way of peering up ISO layers - and that alone violates the principle of network neutrality. To make a really gross analogy, it's effectively the difference between allowing the post-office (FedEx, take your pick) to open up your mail and ship it based on what's inside the package on the one hand, and forcing them to ship the package without opening it - based on the level of service you've bought - on the other. Network neutrality is founded on the principle that you don't open packages (packets). Larry's proposal breaks that principle (whether it's on the "consumer" end or the "content" end is ultimately irrelevant).

This approach is would be like mana from heaven for those that would like to see fixed-line services become spectrum-like channelized services. What's L.L. thinking? Surely he's thought about this issue more than I have . . . so, what am I missing here?