I have never before had the stomach (or initiative) to actually read the text of these laws, but there has been so much noise about net neutrality that I hunted out the FCC web site. The short summary is that I was horrified; more on that later. Understand that I advocate free markets on moral and ethical grounds, so the observations below are secondary to my fundamental objection. Nevertheless, I believe it is appropriate to point out the unintended consequences of the proposed rule.
I should also mention that I, along with thousands of others in the industry, am presently working on software-defined networking (SDN), a major premise of which is the ability of users (or their applications) to request network resources on demand (and pay for them). All of this doesn’t just happen at zero cost; if there is no business case for such capabilities, they will not be developed, and we will all enjoy best-efforts performance together, for better or worse.
The FCC site accepts comments from the public, but they are necessarily brief. Focusing on the core issue, I filed a comment as follows:
The proposal that commercially unreasonable practices be forbidden is equivalent to an assertion that the Commission is better qualified to judge business cases than is the marketplace, and further that the Commission has the right to overrule those who invested in creating the Internet.
The FCC proceeding is long, but the proposed rule is brief enough to be quoted, with my comments interleaved.
Part 8 of Title 47 of the Code of Federal Regulations is amended as follows:
PART 8 – PROTECTING AND PROMOTING THE OPEN INTERNET
8.5 No Blocking.
8.7 No Commercially Unreasonable Practices.
8.9 Other Laws and Considerations.
AUTHORITY: 47 U.S.C. §§ 151, 152, 154(i)-(j), 303, 316, 1302
§ 8.1 Purpose.
The purpose of this Part is to protect and promote the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission, and thereby to encourage the deployment of advanced telecommunications capability and remove barriers to infrastructure investment.
§ 8.3 Transparency.
(a) A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services, in a manner tailored (i) for end users to make informed choices regarding use of such services, (ii) for edge providers to develop, market, and maintain Internet offerings, and (iii) for the Commission and members of the public to understand how such person complies with the requirements described in sections 8.5 and 8.7 of this chapter.
(b) In making the disclosures required by this section, a person engaged in the provision of broadband Internet access service shall include meaningful information regarding the source, timing, speed, packet loss, and duration of congestion.
All of these attributes differ, depending on where in the network they are measured, the level of traffic at any particular time, and network events such as failures and repairs or network build-out. If snapshots of this information were indeed published, they would not be meaningful or useful to anyone. This is an example of a rule whose interpretation depends on the good will of the Commission and possibly the courts.
While I have no reason to doubt the good will, integrity, intelligence and wisdom of the incumbent Commissioners [well, actually, I do have reason: I read their statements], I am less confident about writing a blank check for all future Commissioners.
(c) In making the disclosures required by this section, a person engaged in the provision of broadband Internet access service shall publicly disclose in a timely manner to end users, edge providers, and the Commission when they make changes to their network practices as well as any instances of blocking, throttling, and pay-for-priority arrangements, or the parameters of default or “best effort” service as distinct from any priority service.
Interpreted strictly, this rule prevents commercial secrecy in the structure or operation of the network. There are subsequent exceptions for network management activities, but the boundary is subject to interpretation.
Definitions of many of these terms appear at the end, where I have further comments.
§ 8.5 No Blocking.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.
I read this to agree that blocking is okay if it is the consequence of reasonable network management. The catchword here is reasonable. I presume that blocking denial of service attacks or filtering viruses would qualify as reasonable network management? Or are we to understand that these are only bad if they happen to run afoul of a law?
Is it reasonable for a provider to police traffic to avoid congestion or to enforce a contractual commitment?
A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.
It’s interesting to compare this paragraph (mobile broadband access) with the paragraph above it (fixed access). We could understand why a mobile network is not necessarily expected to accept any and all devices, but the reasons for the other differences are not obvious.
This presumably means that, it would not be allowed for a provider to offer fixed access on the same kind of SIM-card contractual basis as mobile access.
We seem to be using the word block as it is commonly understood, rather than as it is defined below.
§ 8.7 No Commercially Unreasonable Practices.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not engage in commercially unreasonable practices. Reasonable network management shall not constitute a commercially unreasonable practice.
This is the root of the brief comment that I filed. The statement of FCC Chair Tom Wheeler expands this point in an especially egregious way, exhibiting a degree of hubris and arrogance that’s hard to imagine anywhere but, well, in Washington.
Presumably a provider of fixed broadband Internet access service that made a poor business decision and went bust would be in violation of this rule. Or as Tom Wheeler might put it, such an outcome would be doubly prohibited.
§ 8.9 Other Laws and Considerations.
Nothing in this part supersedes any obligation or authorization a provider of broadband Internet access service may have to address the needs of emergency communications or law enforcement, public safety, or national security authorities, consistent with or as permitted by applicable law, or limits the provider’s ability to do so.
Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity.
§ 8.11 Definitions.
(a) Block. The failure of a broadband Internet access service to provide an edge provider with a minimum level of access that is sufficiently robust, fast, and dynamic for effective use by end users and edge providers.
As we see here, block does not actually mean block; anything less than sufficient is to be construed as blocking. The requirement to avoid blocking appears to mean that every point in the network must be engineered to support the simultaneous maximum flow of the most demanding traffic class, free of degradation. Well, no, it doesn’t mean that, because the Commission will decide what is reasonable.
(b) Broadband Internet access service. A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.
Gotcha! It is illegal to develop a parallel private network. Well, you could have a private network, as long as it did not connect to the Internet.
(c) Edge Provider. Any individual or entity that provides any content, application, or service over the Internet, and any individual or entity that provides a device used for accessing any content, application, or service over the Internet.
The end user normally provides a device used for accessing content, applications or services, but I would not expect an end user to be considered an edge provider. However, this strange definition may be necessary for the purposes of equating a consumer with an edge provider in 8.5 above.
(d) End User. Any individual or entity that uses a broadband Internet access service.
(e) Fixed broadband Internet access service. A broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment. Fixed broadband Internet access service includes fixed wireless services (including fixed unlicensed wireless services), and fixed satellite services.
(f) Mobile broadband Internet access service. A broadband Internet access service that serves end users primarily using mobile stations.
(g) Reasonable network management. A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.
We don’t have a definition of commercial reasonableness, but here we learn that network management is reasonable if it is appropriate and legitimate. Why does this feel like a circular definition?
The bottom line here appears to be that the Commission decides what is allowed and what is not. The unintended consequences are that the Commissioners will be for sale, that interests with deep pockets will buy them, that there will be a scandal about Washington cronies, which will be blamed on the private sector, and that even more egregious rules will be promulgated.
And the really, really, bottom line is that, while this proceeding indeed does not mandate that all bits be treated as equals, it goes nowhere near far enough in keeping the government’s destructive hands off the Internet. Those who manage and invest in telecommunications are brave people.