ReasonedResponse.com

As the end of his term as Chairman of the FCC looms, I am becoming more comfortable with Kevin Martin and his style.  In fact, I'm downright tickled with his recent handling of the "network management" flap and its demonstration of how well the system works.

The furor over using forged TCP reset packages to shape traffic on Comcast's network clearly presented a legitimate question:  To what degree are such actions in the best interests of consumers, and to what degree do they violate the spirit and letter of the Principles adopted by the FCC in 2005?

The way the process is supposed to work is that such questions are first handled directly between the consumer and the broadband provider, based on terms of service and commercial agreements.  When this first step does not resolve the issue, it gets elevated to the FCC.  Which it did.

Here's where things get sticky, because this legitimate issue of consumer rights got tangled in the efforts of a lunatic minority to force the FCC to adopt new and outrageous regulations for the Internet.   This minority of roughly one one-thousandth of one percent of Internet users in the US sought to use this legitimate inquiry to bully the FCC into changing its principles into hard regulation.  This would then enable a handful of lobbyists to "game the system" whenever they want by endlessly accusing broadband companies of "violations."

The FCC knew there was a potential for the Principles to be abused.  That's why they clearly stated at the time of their adoption that the Principles did not and would not be regulatory rules.  This way, the Commission has the flexibility to address each situation as it occurs.  It was a wise move in 2005, and remains so today. 

So the issue is taken to the FCC for consideration, and things get tricky because the pro-regulation minority was howling for a one-size-fits-all regulatory quick fix they could more easily use for their own political purposes.  Kevin Martin had to weave his way through this minefield. 

But then things spun out of control at Comcast.

I've worked for enough large corporations, both inside and as an advisor, to know that things can pile up during a crisis.  Good intentions turn bad, innocent actions are in retrospect portrayed as sinister, and the whole organization is left wondering what the heck happened.  If you want proof, just consider the Exxon Valdez oil spill.

Whatever the reason, it appears that Comcast first tried to duck the issue, then prevaricate its way out of the issue, and then compound its public relations problems by derailing the FCC's hearing in Boston, filling the public seats with homeless people.

Which, of course, was the cue for Congress to open its own witch hunt over the issue.

In short order, Chairman Martin faced the task of protecting the integrity of the consumer protection process from both the raging minority of pro-regulation loons and the Congress; while dealing with the questions of policy that were presented in the first place; while keeping intact the consumer Principles enacted by the FCC; and providing support for the legitimate needs of broadband providers to manage their networks.  Oh, and punish the guilty if there were any.

It wasn't easy.  It took guts, a steel-reinforced loin cloth, a commitment to principle and a belief in the power of the process to listen to the loons without over-reacting, stare down Congress and push to a resolution.  But in the aftermath, here's the scorecard:

*  Everyone got their day in court in a hearing before the FCC.

*  The Commission clearly upheld the need for and benefits of network management, refusing to buy into the vision of a "wild west" internet ruled by anarchy. 

*  Chairman Martin held his own before Congress, outlining the policies clearly.

The process is not complete, of course.  Martin has indicated he will take action against Comcast for its behavior, though he has not specified what action.  And there remains the question of how this might impact other service providers and their efforts at traffic shaping.

There are other benefits as well.  Consumers learned more about how a handful of users are taking more than their fair share of bandwidth.  We all learned more about the progress being made to accommodate file sharing on broadband networks, through such efforts as traffic shaping and P4P.  And the process drew attention to the need for more transparency in commercial contracts and user agreements, so that both sides more clearly understand the terms of service.

Best of all, the process was validated.  It works, and we don't need draconian regulation of the Internet to assure that problems can be handled effectively.

Kevin Martin, the lame-duck Chairman of the FCC, refused to be bullied by either the loons or the Congress,  His performance through it all was calm, deliberate and purposeful.  And that's not bad at all. 

What's scary, funny and boring at the same time?

Maybe it's the way in which Peter Svensson at the Associated Press uses bombastic rhetoric about mundane things like ISP Terms of Service Agreements.

You may remember Svensson as the AP writer who stirred a tempest in a teapot over Comcast slowing the connections of some users on its network who were abusing their connections with massive BitTorrent file swaps.  Never mind that what Comcast did was not (and still is not) a violation of any law.  Never mind that its efforts were intended to protect the rights and interests of the hundreds of other Internet users.  Svensson got 15 minutes of fame, the taxpayers were billed millions of dollars for the FCC to spin in circles, and in the final analysis most subscribers to the Internet arestill happier if their ISP is doing something to keep bandwidth hogs from sucking up all of their capacity on the Internet.

But now Svensson is at it again -- this time, noting that the Terms Of Service (TOS) agreements used by most ISPs fail to be the the bill of rights he imagines they should be. 

Sorry, Peter, but those TOS agreements exist more than anything else to protect the ISPs from a myriad of lawsuits, misunderstandings and abuses they would otherwise suffer at the hands of a tiny minority of litigation-minded users -- not to protect consumers from their ISPs.  Consumers are protected by thousands of pages of consumer laws and at least two full-time federal agencies, not to mention a couple of self-appointed "watchdog groups."

TOS Agreements are written in complicated legalese because in the real world they have to protect the ISPs in a court of law, not on the front pages of USA Today.  They are arcane in nature because in our litigation-minded society they have to be.  They are lengthy because you never know when some wacky consumer will cost you thousands or millions of dollars by finding a loophole in the TOS and launching a nuisance lawsuit in the hopes of getting rich quick.

If you read far enough down in Svensson's article -- past the part where all the progressive liberal pundits pontificate on how this demands government intervention and/or control of the Internet, he does actually point out that the real use of these agreements has been to stop spammers and other miscreants.  He actually notes how the TOS agreements have been used, and shows how they aren't nearly as vile in real life as his lead in to the story would lead the reader to believe.  (He might have also noted, but didn't, that the right of an ISP to remove objectionalbe content was specifically demanded in law by the Congress in 1996.) 

But let's face it, if the point of his article had been to show how effective these TOS agreements are in stopping the bad guys, he could have simply said that up front.   

And a memo to Mr. Svensson:  if you want to read some eye-watering legalese that leaves the average subscriber with little or no rights, take a gander at the legal agreements the Associated Press foists on you if you want to use their content on your web site or in your newsletter. 

For a far more human -- and interesting -- take on ISP Terms of Service Agreements, I really like Svensson's follow-on piece, which takes a lighter view of the TOS agreements and pokes a little fun at some of their more arcane provisions without stirring up unnecessary conflict.  I found it over on Yahoo.

As I've noted before, I spent more than a decade in Internet public policy fighting the RIAA and other content providers over file sharing, protecting the right of the technology to exist and opposing legislation that would have been detrimental to consumers.

But as we move forward, and more legitimate sources to buy music and video online make sharing it seem more like theft than sharing, I grow weary of all the debates over it.  If you are downloading to the point that you are violating a TOS agreement, you aren't just downloading security patches from Microsoft.  You aren't just downloading an occasional song or two, or even watching a lot of YouTube videos.

You are stealing.

And I'm content to let that be between you and the copyright holders, until it comes to you sucking up the bandwidth I pay for so you can have your bootleg music and videos.  When it comes to that, I hope my ISP invokes the TOS, hangs you by your thumbs, flogs you without mercy and lectures you sternly.  Then cuts off your access.

I don't much care for what passes as research these days, particularly when it relates to the Internet.  So much of it is pure hooey, sloppily manufactured in order to give credence to some political point of view -- as when the net neutrality crowd claims that consumers don't support tiered pricing, or when a report claims that there are hundreds of thousands of predators online at any given time.  The first time someone asks to see the source data that documents this nonsense, it collapses.

Other research is simply tail chasing.  That is, the survey asks people for their opinion rather than measuring fact.  There is a lot of that online today, particularly when we survey people about whether broadband is being deployed quickly enough.  One has to wonder why the answer would be the subjective opinion of someone who may or may not know anything about the subject, when we can simply apply quantitative measures.

Whatever the reasons, nearly all of the research that makes headlines is junk.  I know this because my many years of post-graduate work in education and business have included a staggering number of classes in research and statistical analysis.  But it's also not just my opinion -- it has been noted extensively by publications that include the Wall Street Journal and scientific journals.  The problem is that surveys and studies are pushed out into the blogosphere or front pages as fact -- with no peer review, no evaluation of the design of the study, and no application of statistical analysis to the results.

But sometimes there is also a glimmer of a fact that bears consideration and further research.

Last week, Burst Media reported a survey of more than 13,000 web users 18 years and older about their views on the availability of age focused online content, website design, and targeted online advertising.

The conclusion: a majority of Internet users 45 years and older believe online content is focused on younger age segments and does not meet their needs.  In fact, within this age segment only one in three (35.4%) believe online content is focused on people their own age. Few respondents 55 years and older say Internet content is primarily focused on people their age.

I do not know how good the Burst Media data is -- there is no source data provided, so it could simply be more pablum.  But I am inclined to think it may have a glimmer of fact in it, because it is consistent with data collected over the past decade by the Pew Internet and American Life project that shows as many as one-fourth of Americans avoid using the Internet because it is not relevant to their lives.  A 2007 study by Pew's John Horrigan found only about 8 percent of the population avidly uses technology in their lives, and half use it only occasionally.

Roughly one-third of the population is over the age of 45, and the median age is 36.9 years.  That doesn't bode well for an industry obsessed with youth, social networks, music downloading, television over the Internet and ads focused on young people -- particularly since the percentage of older Americans is growing.

This is awkward.  We've spent so many years assuming that the "digital divide" was the result of some greedy and nefarious plotting by network operators that we never considered that the real villain could be an Internet that is boring and irrelevant to a major chunk of the population.  If this is true, the majority of politicians and pundits working on broadband issues may have spent the better part of a decade chasing myths.  And a majority of leading Internet companies are following strategies that may lead them straight to the poorhouse.

Of course, none of this may hold up under real scientific scrutiny.  But before we rush off to craft a national broadband policy, as so many are demanding that we do without delay, we ought to find out.  Because the Internet is so closely tied to our national economy and culture that we can't afford to rush off half-cocked.  For the sake of our seniors, our minority members, and consumers as a whole, we need more research before we leap to conclusions.

If the research holds true, we'll need to do some serious re-tooling of the economic model of the Internet.  Diversify the advertising so that it appeals more to seniors and minorities.  Clean up the sloppy mess that passes for news and information.  Find out what the other half of America wants and needs from its Internet experience, and take steps to provide it to them.  Shore up security so that banking online and health online -- two areas of special interest to those over 45 -- can be done without fear of identity theft or blackmail.

We'll have to stop this incessant bickering over imaginary threats and begin to work on real ones.  We'll have to kick the money-changers out of the Temple, stop pandering to the lowest common denominator, and tell most of the self-styled consumer advocates to take a hike.

At least, that's what this doddering old guy thinks.

A small news item this week caught the eye of many of us who have labored over the problem of peer-to-peer networks.  Verizon has presented the restults of its investigation into how network management can be used to enhance the ability of users to download and upload over peer-to-peer networks without encumbering other users on the network.

Whether it ever gets adopted, this is a nice piece of innovative thinking on the part of Verizon -- the very kind of innovative thinking that we will need as we move the Internet forward into the remainder of the 21st Century.  The problem is that this kind of innovation can't ever exist or even be considered if we rush to adopt a one-size-fits-all regulatory scheme for network management in the name of "neutrality."

The idea that the Internet should be a "dumb pipe" that operates without management was never part of Internet engineering -- that's why a "Transmission Control Protocol" had to be added to the "Internet Protocol" to enable the TCP/IP we use today.  Nor was there any agreement that we should somehow freeze Internet technology at 1980 levels in order to be "fair."  Rather, there was agreement that the Internet should be a place where innovation and new applications were encouraged, and that practices and protocols should be carefully managed through processes that allow the greatest number of users to have the greatest possible Internet experience at any single moment in time.

What happens when we replace this forward thinking with a single set of rigid rules enforced by a government agency that works months, or even years, behind real time?  Innovation dies, no matter how well-intentioned the government may be, because there is little point in innovating if the technology will be another year or two down the road by the time it can be approved for use.  New applications die because a small group of regulators, rather than consumers, get to decide which ones can survive in the marketplace.  And they will die because the investors who fund these innovations and applications can't wait years to see whether there might be a return on investment.

Network Neutrality would return telecommunications in the United States to a single, monolithic entity ruled by the government, where innovation was stifled in the name of "balance" and "fairness."  It would wrest the Internet from the hands of engineers and entrepreneurs and place it instead in the hands of telecom lawyers, lobbyists and career regulators.  It would choke the life out of the Internet as we know it today in order to ensure that the Internet returns to the "dumb pipe" days of three decades ago.

I celebrate Verizon's accomplishment and innovation, and look forward to other initiatives in network management that will deliver the fastest, most economical, most effective experience to me -- and every other user on the network -- in the most innovative ways the network operators can deliver.

And "neutrality" be damned. 

To the Commissioners:

I, Dave McClure, on behalf of myself and the more than 200 million Americans who subsribe to Internet services in the United States, request that the Commission issue a Declaratory Ruling that would require Internet Service Providers to adopt resonable and best practices for the management of their networks in a manner that does not permit discrimination by some Internet applications and users to reduce, block, degrade or otherwise lessen the integrity of my Internet and online experience.

Specifically, I submit the following:

• The principles adopted by the Commission do not pertain exclusively to network operators, but do state that I and other network subscribers have the right to access the content of my choice using the devices and applications of my choice.  It is therefore reasonable to assume that these rules must likewise pertain to individuals and applications that limit, reduce or block my ability to do so.
• As noted by Peter Svensson of the Associated Press, "In the basic configuration, each cable serves about 500 households, which share about 40 megabits per second of download capacity. If each household gets Internet service with a maximum download speed of 10 mbps, that means four of them downloading at full speed can saturate the connection."  DSL does not use a similar shared network, but suffers degradation when even a small minority of users elect downloads that saturate the capacity of the networks.  This degradation is even more significant on optical wireless and satellite Internet connections that are common in rural settings.  This means that a small number of users may therefore reduce my ability to download due to their excessive use of the Internet -- even though I am paying the same rate for my connection.  This is ipso facto discrimination against my ability to access and use the applications of my choice over the Internet, a violation of the principles adopted by the Commission by individual users who over-consume.
• These over-consuming users and applications likewise degrade my ability to use specific applications that include security systems, Voice-over-IP telephony and E-911 services, as well as the communications of Emergency First Response teams, law enforcement, fire and safety crews and others who utilize the public Internet.  They therefore represent a clear, present and quantified danger to the public safety and my personal well-being.
• The Internet was not ever and is not today designed to handle the demands of predatory applications, such as peer-to-peer networking applications, that use "supernode" configurations and other means to utilize a disproportionate amount of bandwidth.  Such applications are specifically designed to reduce and limit my ability to utilize the Internet as stated in the principles noted previously by intentionally permitting and encouraging other users of the Internet to discriminate against my use by taking a disproprtionate portion of our jointly allocated bandwidth.
• Merely adding capacity to the network is an unfair and discriminatory solution to this problem because the costs associated with the additional capacity are to be paid by me and by other subscribers with no guarantee that the additional capacity will not simply be consumed by rogue users and applications as it is today.  Additionally, the requirement to simply add capacity to lessen the demands of the over-users and rogue applications will reduce the investment dollars available for network build-out and enhancements, particularly in rural areas such as the one in which I reside.  This would therefore represent a secondary level of discrimination against my rightful use of the Internet.
• Adding capacity to satisfy the users and applications who are discriminating against me and other users today would unfairly target working families, lower-income Americans, rural Americans, senior citizens and others who cannot afford the financial burden of paying for the use of those who choose to discriminate against us.  To put it more simply, why should lower-income Americans be forced to pay for the excessive abuses of the minority of Internet users who consume disproportionate bandwidth?

I therefore petition the Commission to issue the following as Declaratory Rulings:

• That the protections specified in the Principles adopted by the FCC with regard to my right for non-discriminatory access to Internet content using the applications and devices of my choosing be clarified to extend to users and applications that actively discriminate against me by using a disproportionate percentage of the available shared bandwidth on my network.
• That network operators be required to implement reasonable practices to ensure that this discriminatory behavior does not occur, and that the Internet access and use of any one subscriber is not unfairly diminished, degraded or blocked by the actions of any other user or application.

Regards,

Dave McClure

ReasonedResponse.Com 

I've largely ignored the flap about Comcast and its "network management" policies.  It sent the crazies in the "network neutrality" movement off howling for blood, but you have to expect that -- it's been more than two years with no evidence that any consumer has ever been harmed by a real neutrality violation, and they're getting pretty desperate.

Now, though, the FCC has decided to take a look at the issue.  On November 14, 2007, Vuze, Inc. filed a Petition for Rulemaking requesting that the Commission initiate a rulemaking proceeding to clarify what constitutes "'reasonable network management,' by broadband network operators and to establish that such network management does not permit network operators to block, degrade or unreasonably discriminate against lawful Internet applications, content or technologies" as used in the Commission's Internet Policy Statement.  Comments are due at the FCC in February, and I expect to file along with others.

That's a good thing.  WIth the FCC and the US Department of Justice already on record as saying new regulations are not needed, it's time for the FCC to help differentiate between what is helpful to consumers and what is harmful.

To understand what the fuss is all about, you have to look at the entrance ramps on Interstate 395, one of the major arteries feeding traffic into and out of Washington, DC.  Along I-395 are ramps that allow residents to feed onto the highway getting to our from the city, and on some of the major ramps there are traffic lights.  These lights flash red or green, allowing one care or truck at a time to proceed into the flow.  That way, traffic already on I-395 has room to move into the right-hand lane to exit, with entering traffic not clogging the system and creating gridlock.  The lights are only used during peak traffic periods -- mid-days and nights they are not needed.

That's pretty much the way Comcast's network management system operates.  Traffic is allowed to exit the network (download) without interruption, but new entrants (uploads) are spaced slightly so they do not jam up the system.  None are blocked.  None are substantially degraded.  They are just appropriately spaced so that everyone can reach their destination safely and on time.

I don't know if that constitutes a network neutrality violation, but it does seem uncommon good sense in an era in which networks are uncertain, network traffic is growing and civil discourse on the issue has been cast to the winds.

And I do know that it's time to bring to a fitting end the wrangling and whining over network neutrality and figure out how we are going to manage the global networks we call the Internet in a manner that allows them to play well together.  The final result is unlikely to be the "I get all the bandwidth I want for next to nothing and get to do anything I want with it" solution that the crazies are demanding, but neither will it allow discrimination in content, devices or applications.

The FCC is the right place for this to happen.  Just as they set the foundation for the discussion by adopting the first core principles of consumer and network rights a few years ago, they are the ones best equipped to help shape a rational discussion of how best to balance the needs of all consumers while simultaneously addressing the need for network growth.  They alone, of the federal entities, have the ability to do this.

It is the right time, the right place, and the right discussion.  Kudos to the FCC for stepping up to the plate. 

I've always had a lot of respect for the Electronic Frontier Foundation, and have worked with them on a lot of issues affecting the Internet.  Even today, we jointly operate the Subpoenadefense.Org web site, which helps victims of the RIAA and MPAA assault on their own customers to find decent legal representation.

Still and all, they do occasionally take a position that I can't support, as when they attack companies that assist the government in tracking down and stopping terrorists.  Or when they launch an dubious and nasty campaign against Comcast for its network management practices.

I'm not alone in that regard.  Over at the Register ("Biting the hand that feeds IT"), author, blogger and network engineer Richard Bennett dissected the EFF position on Comcast from a technical standpoint.  His bottom line:

"So why does the EFF complain? They're aware that file-sharing is troublesome for cable networks, but remain fully committed to the religious view that the internet's protocols were born fully-formed and inviolate in the mind of a virgin engineer in Bethlehem some 40 years ago, IETF discussions to the contrary notwithstanding.

Like many advocacy groups dealing with technical subjects, the EFF represents the view that technologies are meant to liberate the human spirit from the chains of exploitation, hence it's bewildered by the sight of people using the internet for such mundane purposes as downloading porn, bullying, and stealing music.

So it manufactures a fake crisis of network management to avoid the truth about the inanities of the internet. Problem solved."

I'll can't ascribe motives to the EFF, but would make two comments.  First, now that the dust has settled and the knee-jerk pundits have quieted down, it becomes clear that Comcast's policies not only do not block downloads over BitTorrent, they act to speed such downloads for the majority of users.  Second, a year ago I summed up the supporters of Netowrk Neutrality as a "coalition of the deranged."  I've seen nothing in the year since to change that opinion, and am deeply saddened to see the EFF join their ranks.

I was struck this morning by yet another example of why law school students should be forced to take course in economics, business management and common sense.  This time by way of a blog entry by Susan Crawford, a visiting law professor at Michigan (and, frighteningly, a board member of ICANN) who begins with the statement:

"Let's say that providing communications infrastructure is an inherent function of a state."

Her blog goes on to make the usual nonsense conjectures that seem to always lead to the government seizing control of broadband so that network operators don't get too much power.  The implied threat is that if they do get such power, consumers and governments would be so powerless to stop them that we would be forced to accept...well, who knows? 

Just for the record:

1)  Private companies have no obligation, implied or otherwise, to protect First Amendment free speech.  The Bill of Rights does not apply to private entities.  The Telecommunications Act of 1996 does encourage network operators to censor any content they find objectionable, and protects them in doing so.  Amazing how the "experts" in cyberlaw never seem to have read that section of law.  Or simply overlook it as an inconvenient truth.

2)  Countries suffering under communist and other totalitarian governments seize the assets of private companies under the excuse that it is for the common good.  We are neither a communist nor a totalitarian government, and should not act like one.  BTW, our communications networks are the envy of the world today, and most of the world is busy tearing down their state-owned monopolies in order to emulate our success.  If we are less successful than we once were, you can blame it on a Congress that just can't stop regulating our successes away.

3)  Trying to pass off socialist political theory and bizarre imaginings as any kind of scholarly discourse on management of the Internet generally fails -- as does this one -- because it stops short once we turn everything over to the government.  Since the goal is not to produce a better, faster or cheaper Internet, but only to destroy the telephone and cable companies, there is never a discussion of how things will be improved, if at all, in the New World Order.  No discussion of who will actually run the networks, or whether they are qualified to do so, or even whether consumers will have a voice in the choices they are offered.

My good friend and USIIA chairman Dennis Hayes, whose work on the Hayes modem and ringset made him a true pioneer of the Internet, is often fond of noting that the workings of a free market are ugly, frequently slow and sometimes unfair.  But they are always a better option than markets controlled by the goverment.

Amen.