Network Neutrality | THE CABLE PIPELINE

The Bottom Line: Court Decision on Comcast Vs FCC

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In a decision awaited by many since the FCC’s 2008 admonishment of Comcast’s throttling of file sharing sites, the District of Columbia Court of Appeals ruled to vacate the FCC’s order.

The courts seemed to be following the letter of law when making its decision to vacate. See (D.C. Circuit Court of Appeals’ Comcast/BitTorrent Decision is Out) In essence, the court, in a unanimous decision implied the FCC showed no statutory link under its Title I ancillary authority to mandate that Comcast not throttle file sharing in what has become an ISP network management issue based on Net Neutrality. It did not link that authority under current oversight powers, which currently does not include the Internet, to govern the issue, and remains that simple. Comcast on the other hand is right, under current law, to challenge the FCC. The question remains, how does this affect both Comcast and the FCC going forward?

Comcast Statement:

“We are gratified by the Court’s decision today to vacate the previous FCC’s order. Our primary goal was always to clear our name and reputation. We have always been focused on serving our customers and delivering the quality open-Internet experience consumers want. Comcast remains committed to the FCC’s existing open Internet principles, and we will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.”

FCC Statement:

“The court decision earlier this week does not change our broadband policy goals, nor the ultimate authority of the FCC to act to achieve those goals”

Bottom Line:

The FCC must decide whether it will ask Congress for authority to regulate the Internet as a common carrier, as Net Neutrality proponents have suggested, or move to reclassify the Internet as a telecommunications service, under which it already has authority to govern. As a governing body, comfortable in mandating what telecommunications providers can do with respect to public practices; it now will have to go back to the drawing board to include the Internet. It clearly overstepped its boundaries in the Comcast issue, and without a clear legislative definition of its authority, will face future court dates with any further mandates, at least concerning the Internet.

In addition, Comcast must have the uncomfortable feeling that while it many have won this battle, which it was entitled too, it may lose the inevitable war. How will the long range implications of a pending NBCU merger and the future of a growing and increasingly profitable Internet business be affected, not only for itself, but all other Internet providers as well? It is still too early to imply in a surely heated battle of control forecast to come.

Court says FCC can’t impose network neutrality (sfgate.com)
Comcast vs FCC: In Battle For Net Neutrality, Did the Courts Hand Comcast a Pyrrhic Victory? (gigaom.com)
Observers Say Decision May Force FCC’s Hand (techdailydose.nationaljournal.com)

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The Cable Pipeline Opinion: Net Neutrality’s Conundrum

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Through continued research of the Net Neutrality debate, distinct realizations come to mind for Regulators’, Consumers, and Network Providers alike in pondering the heated discussions around whether either regulation, or a (hands-off) approach, are sufficient to allow unfettered and equal access, including clear competition, and that all are present on the Broadband pipelines.

First there has continued to be somewhat of a hysteria and possibly pre-ordained fear, albeit without serious incidents of record, that network providers both have and will continue to throttle speeds and limit access of their customers to the copious amounts of content becoming available through the Internet. Perhaps the hysteria has unfolded as a result of one BitTorrent case, or associated with a fear of other industry debacles as seen with banks, Insurance companies, Investor Management companies, and Wall Street, driving the public to government as their interventionist in reigning in these industries; but how realistic are these fears based on the current Internet model?

Regulation can hamper Broadband Access and Adoption

Increased regulation of a burgeoning Internet on the verge of offering just the recipe the FCC is mandating could backfire in helping startup companies materialize and grow while slowing the proliferation of increased infrastructure, and network upgrades. Without the freedom to invest and seek sufficient ROI’s network providers will cut costs rather than invest for the future. This could stunt job creation, a by-product of innovation and free-flowing investment, in an industry with a broad potential to produce applications and services for the Internet.

Network Management Polices will continue to improve and evolve to handle varying Traffic Needs

It is in the best interest of private network providers to provide the best network management policies for all users in continuing to build their consumer and business base. This correlates to (Business Management – Best Practices-101). If a company cannot offer the best experience for its customers all businesses, whether an Internet Provider or a Wal-Mart, cannot survive the long term.

Use of Anti-Trust Statutes to curtail (Bad-Actors)

Absent a serious history of abuses within the Internet pipelines the FCC should concentrate on harnessing (bad-Actors) with Anti-Competitive Statues, not regulation, allowing that these companies will receive stiff penalties, and will certainly be brought to the forefront via customers and competitors having been abused, disenfranchised, and denied access to fair treatment.

Incentives rather than Regulation

Broadband Stimulus Plan funds should be used to incent companies to build new infrastructure and upgrade their networks to realize an adoption and access vision which the FCC has been mandated to accomplish. First, detailed maps must be created to determined where the infrastructure is located, and where it is not. Then current providers of Telephone, Cable, or Wireless are incented to build and upgrade their networks in rural areas to provide needed Internet services. Monies will be better spent with incentives associated to quantifiable results rather than regulation and mandates of an existing industry.

The Cable Pipeline has written about both sides of the Net Neutrality issue. It is without question a passionate and personal debate with results having far reaching implications in the lives of individuals, businesses, and public sectors alike. The FCC has been prudent in seeking comment from all stakeholders which will hopefully produce the right results for all concerned. When the dust settles, my preference would lean more toward less regulation and more incentives therefore spurring economic growth and job creation.

White House Backing Away from Net Neutrality? Not So Much (dailykos.com)
Appeals Court: FCC Can’t Make Comcast Stop Throttling BitTorrent (mashable.com)
SGA Warns That FCC Net Neutrality Proposal Could Enshrine Music Piracy and Devastate Creators (eon.businesswire.com)
RIAA Wants Limits On Net Neutrality So ISPs Can Police File Sharing (yro.slashdot.org)

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Comcast Vs FCC: Implications in throttling BitTorrent

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Comcast is appealing a ruling before a three-judge appeals court panel concerning the FCC’s sanctions in 2008 of the operator, and whether it has jurisdiction under current Net Neutrality rules to do so, for what has become known throughout the media as past throttling of BitTorrent. (See FCC formally rules Comcast’s throttling of BitTorrent was illegal). This could be an important decision for ISP industry operators, who have many (irons-in-the-fire) when it comes to a business model that depends on both residential Internet and business customers, in helping it pay for a broadband pipeline created with private investment.

It also has implications for consumers who are increasingly using more file sharing applications to watch video content from their Internet Service Provider connections, and Internet giants like Google (Nasdaq: GOOG)who depend on free access to its information sharing business model. While Comcast (Nasdaq: CMCSA,CMCSK) has indicated their Internet management practices have since been changed, as a result of the issue, and it no longer throttles customers, what remains is a court challenge this past week in which the court grilled the FCC on its authority to regulate ISP’s under current Net Neutrality rules without a legislative mandate. (See Comcast Scores Against FCC in Court Battle over Net Neutrality).

The wider ramifications is whether the ruling will apply to business applications, which require special and unique service agreements for much larger file sharing and speeds in offering these programs. In essence, ISP’s need the flexibility to charge differing rates depending on the requirements of certain applications, which in-turn allow for infrastructure investments to accommodate these needs. This is their (Bread and Butter) of profitability.

On the one hand the FCC is under a mandate by the current administration to have a free flowing Internet with consumers and file sharing applications having unfettered access, and on the other, private investors which have created the pipeline are mandated by economics to make a profit depending on differing needs, from both consumer and business. If the FCC loses this current battle in court, then future challenges will likely occur concerning any new Net Neutrality rules that are adopted.

It seems from opening arguments before the courts that the FCC may have overstepped its boundaries in taking Comcast to task over BitTorrent, and may have to back up and ask Congress for a legislative mandate in regulating broadband as an information service.

Appeals Court: FCC Can’t Make Comcast Stop Throttling BitTorrent (mashable.com)
CES: FCC Commissioners Pessimistic on Net-Neutrality Prospects? (blogs.wsj.com)
White House Backing Away from Net Neutrality? Not So Much (dailykos.com)
Comcast, FCC take net neutrality dispute to court (seattletimes.nwsource.com)

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Net Neutrality’s Increasingly Complex Debate

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At issue, the language the FCC crafted in its proposed rule making, specifically FCC NPRM Paragraph 106 as implicated by Digital Society. (see FCC NPRM prohibits good network management)

“We understand the term (nondiscriminatory) to mean that a broadband Internet access service provider may not charge a content, application, or service provider for enhanced or prioritized access to the subscribers of the broadband Internet access service provider, as illustrated in the diagram below. We propose that this rule would not prevent a broadband Internet access service provider from charging subscribers different prices for different services. We seek comment on each of these proposals. We also seek comment on whether the specific language of this draft rule best serves the public interest.”

The crux of the debate for those seeing paid-peering-agreements as essential to increased participation by innovative content, application, or service providers, whether they be start-ups or seasoned, seem to be an open ended interpretation which would ban prioritization. See (What is true neutrality in the network?)

With the wide range of content flowing through the pipelines, and increasing at a rapid pace, the network cannot become a (dumb pipeline). Network management seems to be an essential characteristic needed to handle the flexibility of constantly differing requirements from Internet users. This is not a linear format with constant speeds and demands.

The network must constantly adjust to those varying needs which may require one user to demand more capacity than others at unique times. This management will not degrade the network for other users. It is a matter of choosing one higher demand over a lower demand without degrading the demand for both. It manages the requirements of each user.

As private networks, ISP‘s should know their responsibilities regarding consumer and commercial traffic, and the management issues of prioritizing. Obviously, paid peering is needed for those whose products depend on increased speed and bandwidth for business survival. The consumer wants the same whether they are streaming movies, or downloading PDF’s or just sending e-mail attachments.

It comes down to understanding how the Internet works regarding network access management capabilities across a wide variety of circumstances and geographical locations. In essence, what will it take for both large and small ISP’s to handle the varying traffic over their networks and upgrading to a standard that reasonably doesn’t degrade the user experience?

Hence, the NCTA’s recent reference to First Amendment issues in discriminating against ISP providers in Paid-Peering Agreements. The FCC should revisit NPRM Paragraph 106 and make sure proposed Net Neutrality rules do not discriminate against one party in favor of another.

FCC Agrees to Set Rules on Net Neutrality (gigaom.com)
FCC: We’re Going to Make Net Neutrality the Law [Net Neutrality] (gizmodo.com)
Feds Mull Rules, Fees to Spur Net Access (online.wsj.com)
FCC approves net neutrality rules (seattlepi.com)

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NCTA’s McSlarrow Speech: Mirrors Self-Serving Control of Pipelines

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Kyle McSlarrow’s recent speech to The Media Institute mirrors a self-serving approach to control the pipelines, guised as a First Amendment right for ISP’s. The point Mr. McSlarrow is trying to make shakes the Freedom of Speech right for every citizen to the core. How can such rhetoric hide behind this basic citizen right in making an argument to control speeds, and content of global information sharing, the principle design of the Internet, and contention of the Net Neutrality debate? The Internet has become larger than any private company’s right to control it.

Instead of creating more controversy, the NCTA, (the right arm of the Cable TV industry), should be highlighting how these private sector companies can benefit consumers and businesses in a competitive landscape. The important issue should be how those networks will continue to upgrade infrastructure to act as a conduit for information, education, and global business competition.

The industry is not well served by its spokesperson in (drawing-a-line-in-the-sand), or trying to hijack the premise of free speech to avoid shackling of its pipelines that will clearly profit from a (lack of free speech). Unfortunately, the comments argument only drives home the need for government intervention.

Finally, to say that an industry which helped create CNN, FOX NEWS, HEADLINE NEWS, CNBC, BLOOMBERG, and other news organizations is under threat of losing its freedom of speech, is ridiculous. It has so many avenues of getting its point to the masses by creating pay content, the speech becomes an oxymoron. This is an ill-conceived speech cloaked with big business and power wanting control of the pipelines, and from an industry on the (tipping-point) of increased regulation.

Why Big Cable and Big Telecom Should Love Net Neutrality Regulations (siliconangle.net)
Sen. Al Franken gets serious on free speech, net neutrality (dailyfinance.com)
Art Brodsky: Oh, the Hypocrisy! The Vote To Regulate the Internet as More Media Consolidation Looms (huffingtonpost.com)
My Problem with the Modern Network Neutrality Debate (siliconangle.net)
Freedom of Speech: Our First Amendment (prweb.com)

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A Common Sense Approach to Net Neutrality

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There are two compelling sides to the Net Neutrality issue before the Federal Communications Commission that can be solved by cutting through the rhetoric and making a few common sense and objective decisions about what is at the crux of the problem.

First, Internet Service Providers are at the center of the debate, and rightfully so, since without the ISP’s providing the gateway for Internet usage, there is no issue. The power of discrimination lays solely in the hands of the Comcast’s, AT&T’s, Time Warner Cable’s, Verizon’s, and other providers of the ISP pipelines.

This is a huge social responsibility for private sector companies, who do not necessarily compete with each other in every market, in controlling the complexities of sharing access to all who ask. The Internet has evolved into more than just picking which provider will allow individuals or companies to link through to others; it has evolved into a massive highway of commerce and social connection. And this is where the problem with competing interests and two sides of the coin begins to emerge.

To solve the issue the FCC can take either of two paths in ensuring openness and fairness to all concerned, with both large and small stakes, in both getting where they need to go and receiving what needs to receive, via broadband. One path is to let the market sort itself out; in that encouraging competition within the marketplace between ISP providers will create less of a reason for providers to favor one entity over another or risk losing customers to the competition.

This would work well if it was easy and inexpensive to get into the ISP business while building an infrastructure to support a broadband pipe sufficient enough handle the range of users, content, and applications needed to ensure true competition. Only Verizon, to my knowledge, is able say that it welcomes all comers with its FTTH-FIOS infrastructure and with bandwidth to spare.

An alternative path would be to mandate all ISP providers open their networks to competitors and set standards for download and upload speeds, thereby ensuring everyone is treated equal. And yes, creating tiers of service for unusual traffic needs. While this could be considered a heavy-handed approach, it does take somewhat of a burden off the private sector in choosing whether to upgrade their networks for increased bandwidth, or which entity it will prefer when having to choose between conflicts of interest, protection polices, or Wall Street demands.

But a common sense approach is fraught with political mine fields. Lobbying is alive and well on Capitol Hill and the larger companies have the lawyers, insiders, and money to back up those efforts. However, in my opinion, there needs to be a compromise between public and private sectors that are willing to support an (Internet Super-Highway) which fosters innovation, competition, new businesses, and robust commerce that spreads success to all corners of our country. It is only common sense!