Category Archives: Network Neutrality

It happened.

Unless you’ve been hiding under a rock, you know by now that the FCC voted – on party lines – to reclassify broadband access as a Title II telecommunications service (rather than as an unregulated information service) and re-apply the so-called Net Neutrality rules on that basis.  To telecom regulatory geeks like me, the webcast Open Meeting and dueling press conferences afterwards were a great show.

I doubt all this will have any substantive effect.  Here are my speculations.

There will, of course, be litigation, probably framed around the legal arguments in Commissioner O’Reiley’s dissent.  The composition of the DC Circuit has changed since the last round, and the FCC has apparently followed the less risky of the two road maps laid out by the Court in the Verizon decision.  I am not a lawyer, but as a keen observer, I’d expect the FCC to prevail in this one.

There will of course be attempts at legislation.  It is doubtful that any of them could get a cloture vote in the Senate in this term, and even more doubtful that they’d pass an override vote.  There will be some posturing in committee hearings over the next few weeks, but it won’t come to much.  In the worst case, there will be another standoff over the FCC’s budget.   A shutdown would stop the shot clock on two mergers, plus halt day-to-day licensing transactions and equipment approvals.  It can’t last too long.

I doubt that the Order is going to prevent the incumbents from doing anything they’d actually planned to do.   That depends on the exact technical meaning of “paid prioritization”.  If taken literally to include any network behavior other than Best Effort, that could monkey wrench managed VoIP, tele-presence and IPTV, as well as some IoT applications.  I’ve been concerned that this might happen since the NPRM was released, and explained in comments why it would be a bad idea.  Others have offered the same advice.    We shall see what comes out in the Order.

I’d also be surprised to see significant changes to CAPEX.  Regardless of regulatory status, either there is a business case for new deployments and upgrades, or there isn’t.  Each of the big players has a story line, and I can’t imagine a business rationale  for any of them changing direction because of this Order.

The activists will spend the next couple of weeks enjoying their victory.  The real win was not the inconsequential “no blocking, no degrading, no paid prioritization” rule.  It was in applying the “just and reasonable” standard to broadband ISPs, and giving the FCC authority to adjudicate consumer complaints.  My guess: it would take a particularly egregious act for the Commission to take enforcement action based on consumer complaints.  The incumbents are usually too smart and too cautious to do such things.

Finally, I expect a proceeding on interconnection, either as a rule making or as an enforcement action in response to a complaint.  This is the real issue that powered the astroturf campaign for Net Neutrality.  This is somewhat of a wildcard.  My guess is that Netflix, Cogent and Level-3 are overreaching in their demand for settlement-free peering, with unlimited capacity upgrades at no cost to themselves.   We shall see.

The devil is in the details.  It may take a while for the final text of the Order to be complete.  Despite the spin, this is has been par for the course at the FCC for decades.  Chairman Wheeler pointed out that a recent court decision compels the majority to provide a written response to the dissenting statements.  This, of course, will not happen on “Internet Time”.    I’m waiting patiently,  with bated breath.

Network Neutrality Update

At CES 2015, Tom Wheeler spoke about the current thinking inside the FCC.

It seems that the “commercially reasonable” standard that the Commission would have to draw upon to hang their hats on Section 706 is ambiguous.  A mere layman would read it as meaning “reasonable to all parties”;  a plausible result of a hypothetical negotiation in which the parties had equal  power.  Apparently, the FCC’s attorneys were able to torture it into meaning “reasonable to the Broadband ISP”;  a plausible result of a hypothetical negotiation of lunch options between a wolf and a sheep.  This is one reason why I am not a lawyer.

According to Wheeler, a more robust “just and reasonable” standard would require that the Broadband ISPs would have to be subject to Sections 201 and 202 of the Communications Act, and adequate consumer protections would also require Section 208.  And yes, these are sections under the dreaded Title II.  The rest of Title II would be excessive.  It was not clear to me that the FCC could forbear from all but those three sections, as a matter of law or politics.  It now seems that the attorneys think they have enough legal legerdemain do this.

With respect to my big concern with regard to possible over-broad interpretation of “paid priority” and “throttling”:  the framework under discussion appears to give the FCC enough wiggle room to decide that, for example, a video transport service offered to all comers is “just and reasonable”.  Wheeler also acknowledged that No Paid Prioritization should not be an absolute.  So overall, not a bad outcome.

In the meantime, various bills are being hammered out in the House and the Senate to short-circuit the FCC proceedings.  A law that gave the FCC authority to deal with blocking, throttling and paid prioritization would provide some certainty.   That is, if we can trust this Congress to let the FCC do what they have to, and don’t try to micromanage.  I’m not taking bets.

Commission will vote on a Report and Order at their February open meeting.

Democracy is Messy

I’m still digesting the Open Internet order, and intend to post my thoughts and comments later.   On the surface, it is fairly bland and inoffensive.  It tentatively suggests a way forward, but also seeks guidance.  And with the help of the Web, much guidance is forthcoming.

There are, unfortunately,  many countries which actively suppress public participation in policy matters.  Lashing out against oligarchs, cronies of the Leader, Party officials, well connected businesses and the like can have dreadful consequences.    Corrupt rent-seeking is accomplished through secretive discussions between businesses and officials.   Citizens of these countries suffer both tangible economic and physical harms and intangibly, through sense of powerlessness and oppression.

We Americans are fortunate that the rights of free debate and petition is guaranteed by our Constitution, and that these rights are institutionalized in the fabric of our government.   We are also fortunate that (with few exceptions) the machinery of government is bathed in sunlight and that public access to policy debates is enforced by law – in this case, the Administrative Procedure Act of 1946.   Each of us is entitled to our opinions on matters of public importance, to express them vigorously to our government, and to see that they are properly considered.   Writing this on the 70th Anniversary of the landings at Normandy, I cannot help but reflect upon the direct connection between the sacrifice and heroism of that day, and our rights, privileges and the Rule of Law.

That said,  there is a difference between an opinion and an informed opinion.  When I was a know-it-all kid, my parents and teachers rightly impressed upon me a duty to inform myself before spouting off.  Sometimes, it must have seemed like a losing battle.   More than once, I was admonished that “when you become an expert in such-and-such, you can debate with the experts;  in the meantime listen more and talk less”.    Or, in the words of Lady Burton:

 Men are four:
He who knows not and knows not he knows not, he is a fool—shun him;
He who knows not and knows he knows not, he is simple—teach him;
He who knows and knows not he knows, he is asleep—wake him;
He who knows and knows he knows, he is wise—follow him!
Lady Burton—Life of Sir Richard Burton.

Now that I am an expert in a field that has become contentious, I fully appreciate the wisdom of that teaching.

Which leads back to Network Neutrality.   Public opinion has become inflamed about a cluster of esoteric topics.  There are undisputed facts, disputed facts, speculations, conclusions and opinions.  Unfortunately, the policy debate has been overwhelmed by the latter.

“Net Neutrality” is not devoid of intellectual roots.  It is based on reasoned analysis by  legal experts, most notably Tim Wu,  Susan Crawford and Larry Lessig.  Their work deserves thoughtful debate on its merits.  My take is that much of it is premised on misunderstanding of selected, out-of-context facts,  and developed through various logical fallacies.   I believe that I can rebut most of their points.

The debate also has deep roots in the technology community.  For many years, there has been schism between those who see network resources (“bandwidth”) as abundant, and those who see them as scarce.   In the view of the former, attempts to allocate presumed unlimited capacity is unnecessary, foolish and harmful.  They see all traffic fitting into a common packet forwarding paradigm.   The latter hold that at times,  traffic demand at some points in the network will exceed capacity, that different traffic sources have different performance (“quality of service”) requirements, and that as a result, congestion must be controlled by traffic management  regimes specific to the needs of the source.   I am firmly in the latter camp, as are many other respected experts;  there are many respected experts on the other side.  We have reasoned, if somewhat heated, debates on the topic, all based on a set of undisputed facts.

Pecuniary interest is a motivator on both sides.  It can be argued that at its root, this is a tussle between facility-based broadband providers and content providers over their respective shares of a slice of consumer discretionary income.   The latter have succeeded in portraying themselves as victims, and their opponents as greedy, highly profitable monopolists.  This despite the fact that the same charges can be leveled at some of them.   Some even attack the broadband providers for business practices at the access/transport level, while engaging in those same practices (and worse) at the content level.  Such behavior is expected, and sorting out these tussles is an important function of the FCC.

Then there is the common mob.  Following the call to arms by the likes of Mr. Wu, Ms. Crawford, and Mr. Lessig, as amplified through self- appointed public interest groups like Free Press, Common Knowledge and Save the Internet, and building on other frustrations with broadband operators, the topic has generated inarticulate rage.   In fact, so much that the FCC’s capability to process all the comments has been overwhelmed as if by Denial-of-Service attack.  It is fitting that comedian John Oliver’s rant on Last Week Tonight,  (which apparently froze the FCC’s web site), was a call to action by the Internet’s population of trolls, fanboys, haters and flame writers.

Reading a selection of the more than 2600 comments in the FCC’s EFCS database is  discouraging.  Many are inarticulate rants, more like toddlers’ temper tantrums than contributions to a policy debate.  Many are obviously copied.  Many are off-topic, devoid of basis in fact, built on fallacy and misunderstanding.   Many give cause to mourn the state of public education in English grammar and composition.   And most consist only of one sentence fragment.

I imagine a small army of staffers in the FCC’s headquarters, trying desperately to keep up with the flood.   Their task is unenviable.  I rather fear that thoughtful, original comments – on both sides of the issue – will be lost in the shouting.




Can we please stop talking about “Fast Lanes”? Please?

“Network Neutrality” is in the press again, after the DC Circuit Court of Appeals vacated the FCC’s “Open Internet” Order, and the FCC  began the process of creating new rules within the guidelines set out by the Court.  FCC Chairman Jack  Tom Wheeler has outlined a new set of Rules, which effectively divide the baby.  His other alternative, the “nuclear option”, would have the FCC reclassify Broadband ISPs as Common Carriers, subject to Title II of the Telecom Act.  Grass-roots, Netroots (and perhaps some Astroturf) groups are banging the drum loudly for the FCC to go nuclear.  They are incensed that the proposed rules would allow differentiated traffic handling for compensation.

The catch phrase is “fast lane”, or sometimes “toll lane”.  As in “those evil monopolists will be selling access to a fast lane on the Internet to the corporate media, and degrading the slow lane to the point of driving out independent viewpoints and entrepreneurs and democracy as we know it”.  Every news article, every editorial, every post on the subject almost inevitably includes that metaphor.   Indeed, the entire debate seems to turn on it.  And it is flat-out misleading.

The “Information Superhighway” metaphor is credited to  former Senator Al Gore Jr.  It was a tribute to his father, Sen. Al Gore Sr., who was instrumental in the legislation that created the Interstate Highway system.  It was also an astonishingly prescient  prediction of the impact which the Internet would have on our daily lives.  Al Gore is no technologist.   He needed some way to express the notion of a ubiquitous, richly interconnected data network as critical infrastructure for the 21st Century. The highway metaphor served his purpose.  And hopefully he didn’t take it too literally.

The problem is that the Internet not like a like a highway.  The behavior of a road system in carrying individual cars is completely unlike the behavior of the Internet, which carries a duality of individual packets and flows.  Modern Physics teaches that light simultaneously has a wave nature and a particle nature; similarly, traffic on the Internet simultaneously has a packet nature and a flow nature.

As an example, if a highway becomes congested, all cars slow down or stop, cars back up, and the resulting traffic jam grows indefinitely until the congestion clears.   The Internet handles congestion by dropping packets, with the expectation that the receiver will detect  missing packets from each flow,  and take their absence as an indication that a congestion event has occurred.   The receiver is then expected to instruct the sender to  send fewer packets belonging to the flow at a time.  Now, imagine a highway that handled congestion this way.   Would it have artillery pieces at intersections to blow up random cars?  Unless cars traveled in something analogous to a  flow, how would a destination know that a car had gone missing, or signal back to an origin that it should dispatch fewer cars at a time?

And that’s just one of the Internet’s behaviors.  If, to extend this thought experiment, one were to imagine a transportation system that behaved like the Internet, it would be… truly bizarre.

Other metaphors fail as well.  The late Sen. Ted Stevens was roundly ridiculed for comparing the Internet to “a series of tubes”.  That metaphor holds no better – but no worse – than the highway metaphor.  In fact, the Internet behaves like nothing in people’s everyday experience — except, of course, for those of us whose life’s work is to think about such things.  And reasoning by the highway metaphor has been the cardinal fallacy in the “Network Neutrality” debate.

Once we start thinking about the behavior of the Internet on its own terms, we can start thinking in terms of 25 years of research, standardization and experience in “Integrated Services Networks”. We can introduce the notion of “Best Effort Service” into the debate.  Best Effort is how the public Internet presently behaves.  In the packet nature of the Internet, Best Effort means that a source will send packets into the network, and the network will try to deliver them in the order they are received.  In the flow nature of the Internet,  Best Effort means that if all flows are responsive to congestion, then each will get a “fair share” of the bandwidth along its path.

Best Effort service is optimized for “elastic” flows.  An elastic flow transmits a the highest rate that it is allowed to, but doesn’t mind  adjusting its rate to match its fair share of the bandwidth along its path.   By slowly ramping up its rate, and responding to congestion signals by sharply reducing its rate, it participates a in “share and share alike” paradigm.   Web browsers, E-mail programs and remote backups are all common applications that generate elastic flows.

We can also talk about “Inelastic” flows.  An inelastic flow sends data at its own characteristic rate, with little or no ability to adjust without degrading the user experience.   Best Effort service is not particularly good for Inelastic flows and vice-versa.  Elastic flows are supposed to play nicely with each other, and cooperatively share capacity fairly.  Inelastic flows don’t know how to play nice;  they send at whatever rate they send at.  Worse, during periods of congestion, their unresponsiveness actually causes cooperating elastic flows to slow down to less than their fair share of bandwidth. Streaming video is the proverbial 800 pound gorilla of inelastic flows.

A “Premium”  service is a better way to handle inelastic flows.  Instead of a “share and share alike” paradigm, it reserves enough bandwidth through the network to handle the inelastic sender’s characteristic rate.  The network knows what that rate is, and enforces it.  The understanding is that as long as the flow’s sender doesn’t exceed that rate, the Internet won’t drop any packets.   Faster than that, all bets are off.  However, if there isn’t enough bandwidth to safely reserve for a new flow, the flow is not admitted; it gets the Internet equivalent of an “all circuits busy” signal.  All of these behaviors prevent congestion in a different manner than  Best Effort behavior responds to congestion.  Engineers will recognize elastic traffic over a Best Effort Service uses a closed-loop control system;  similarly, inelastic traffic on a Premium service is an open-loop control system.

It turns out that elastic flows using Best Effort service can peacefully coexist on the Internet with inelastic flows using a Premium service, as long as there is a large enough pool of bandwidth reserved for the Best Effort service to maintain acceptable performance.  The insight behind that is that dynamic allocation of the Internet’s bandwidth is not a zero-sum game. In fact, if anything, isolating elastic flows from inelastic flows will improve the performance of both.

This “Premium” service is the thing  that the FCC proposes to allow ISPs to offer – within limits.   It is also the thing that the Netroots condemn as a vile abomination.  This is the subject of the current brouhaha.

It is fair to note that these notions of a multi-service Internet, Premium Service, bandwidth reservation, admission control, etc.  has always been controversial in the technical community.  The argument has been that if you don’t have enough bandwidth to satisfy everybody, just get more.  It is no coincidence that I’ve never heard that argument from anybody who has had to sign the purchase order for “more”.   Still, this thinking has permeated the Netroots and probably underlies some of their opposition.

Now, Premium Service does pose some very real competitive and consumer risks.    The FCC’s big challenge is to create enough safeguards to protect against them.   I’m well convinced, as is Chairman Wheeler,  that they can do so;  I am also aware that it will be difficult, and that any loopholes will be exploited.  But that’s a story for another day.

Note:  This entry expands on a comment I wrote on the industry website Light Reading.