Category: Networks

Does the FCC have the authority after all?

MAP attorney Harold Feld has put together an interesting argument on the FCC’s authority to sanction Comcast over the BitTorrent management question: If the FCC had said directly to Comcast: “If in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.” … Continue reading “Does the FCC have the authority after all?”

MAP attorney Harold Feld has put together an interesting argument on the FCC’s authority to sanction Comcast over the BitTorrent management question:

If the FCC had said directly to Comcast: “If in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.” I would think we could all agree that this constituted “notice,” yes? Perhaps not notice of whether or not the behavior at issue constituted blocking or degrading — that is, after all — what the Commission determines in a complaint. But certainly if the FCC had told Comcast directly, to its face, no ifs and or buts, the above quoted line, I would hope we could all agree that Comcast had received reasonable notice that parties could bring complaints to the Commission, asking the Commission to determine whether the parties had behaved in an inappropriate manner.

Comcast rebuts this argument in a recent FCC filing.

IANAL so I don’t have an opinion on the soundness of Harold’s legal argument or Comcast’s rebuttal, but if Harold were correct, the argument would simply shift from authority to reasonable network management. The system Comcast was using made an a priori judgment that P2P was less worthy of all the bandwidth it wanted under load and unattended than interactive applications. This is not an unreasonable judgment, as a) it’s a bandwidth hog by design; and b) it was asking for more than the typical user was getting. But there are cases, to be sure, when a particular instance of P2P is not hogging, and they lead us to the empirical question about the link state at the time of the throttling. And that’s what I told the FCC in both my filing and my oral testimony.

I’m glad we have all these clever lawyers to resolve all these devious questions of authority, but wouldn’t it be simpler to know the rules in advance? That’s important because the terms like “degrade” are completely vague when we’re talking about a shared wire. Not managing P2P means that web browsers get degraded, and it makes no difference whether they’re degraded by ISP action or ISP inaction, so Comcast is screwed either way. That’s un-American.

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Liveblogging the FCC, Panel 2

See First Panel here, and the live video here. David Farber, former FCC chief tech, and CMU: What would you need 300 baud for? It motivated faster TTYs. We’re moving to faster networks, and that will stimulate new applications. If this going to lead to a better world, or to 1984? Don’t cut off the … Continue reading “Liveblogging the FCC, Panel 2”

See First Panel here, and the live video here.

David Farber, former FCC chief tech, and CMU:
What would you need 300 baud for? It motivated faster TTYs. We’re moving to faster networks, and that will stimulate new applications. If this going to lead to a better world, or to 1984? Don’t cut off the future with bad regulations. Big rush to restrict P2P traffic. It’s not all illegal, but it’s hard to tell. Peak loads are hard to restrict with monthly caps. Three dollar surcharge on video downloads.
Continue reading “Liveblogging the FCC, Panel 2”

Court calls FCC “arbitrary and capricious”

The Third Circuit delivered the big smackdown to the FCC over the wardrobe malfunction incident: The court said the FCC is free to change its policy without “judicial second-guessing,” but only with sufficient notice. “Because the FCC failed to satisfy this requirement,” the court added, “we find its new policy arbitrary and capricious under the … Continue reading “Court calls FCC “arbitrary and capricious””

The Third Circuit delivered the big smackdown to the FCC over the wardrobe malfunction incident:

The court said the FCC is free to change its policy without “judicial second-guessing,” but only with sufficient notice. “Because the FCC failed to satisfy this requirement,” the court added, “we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.”

It also found that CBS could not be held strcitly liable for the actions of independent contractors — another argument the FCC made for its finding. “The FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the halftime show,” the court said.

This ruling has implications for the proposed sanctions against Comcast: both involve post-hoc rules and both involve sticking it to someone other than the bad actor. The court doesn’t approve of the FCC making rules after an incident has occurred, which is exactly what the FCC proposes to do in the cast of Comcast’s management of P2P. Notice and rule-making have to precede sanctions, not follow them.

And the bad actor notion also applies. The Court found that Jackson and Timberlake were the bad actors, not CBS. In the P2P case, the users who congested the network are the bad actors, not the operator who sought to rein them in.

Chairman Martin, note this well.

Also of interest: the Court noted that most of the complaints against CBS were junk:

The Opinion notes CBS’s research indicating that over 85 percent of those complaints came from forms produced by activist groups. Many of the protests were filed in duplicate, “with some individual complaints appearing in the record up to 37 times,” CBS asserted.

The same can be said of the junk comments manufactured by Free Press against Comcast, of course. Free Press employed the electronic equivalent of seat-warmers to flood the FCC with junk comments, to the tune of 30,000 duplicate complaints.

Recommended reading

Brett Glass has filed a very good letter with the FCC regarding the current controversy. Of particular interest is one of the “Four Freedoms”, the freedom to run any application you want: It’s important to step back and think about the implications of this clause – the one which Comcast has been accused in the … Continue reading “Recommended reading”

Brett Glass has filed a very good letter with the FCC regarding the current controversy. Of particular interest is one of the “Four Freedoms”, the freedom to run any application you want:

It’s important to step back and think about the implications of this clause – the one which Comcast has been accused in the current proceeding of having “violated.”

An application (a technical term for any computer program which is not an operating system) encodes and embodies behavior — any behavior at all that the author wants. And anyone can write one. So, insisting that an ISP allow a user to run any application means that anyone can program his or her computer to behave any way at all — no matter how destructively — on the Internet, and the ISP is not allowed to intervene. In short, such a requirement means that no network provider can have an enforceable Acceptable Use Policy or Terms of Service.

This is a recipe for disaster. Anyone who engages in destructive behavior, hogs bandwidth, or even takes down the network could and say, “I was just running an application… and I have the right to run any application I want, so you can’t stop me.”

The application freedom, like the others, is limited by “reasonable network management,” which is undefined. So the real exercise is defining this term, where the operative essence of the four freedoms is “you can do any damn thing you want, except for what you can’t do, and here’s what you can’t do.” Rather than enumerate freedoms, Michael Powell should have enumerated restrictions, on users, carriers, and services.

That’s hard work, but it’s the kind of thing that serious policy-makers do. Restrictions should start with the following list:

1. You can’t lie to your customers or the public, nor can you be economical with the truth:
– You have to fully disclose terms of service in language as plain is it can be, using standard metrics and terminology.

2. The Internet is a shared facility, and no one is entitled to overload any portion of it.

3. You can’t manipulate dominant market share in to fix prices or eliminate competition.

4. You can’t act arbitrarily or without notice to terminate services.

5. You can’t operate equipment on the pubic Internet with doors and windows open to malware, viruses, and bots. If your equipment is hijacked, you will summarily be cut off.

6. No stealing.

Etc.

Some of these apply to carriers, some to users, and some to services. In a mature Internet, we all have responsibilities, not just freedoms. With great power, etc.

What’s good for Google is good for the Internet

Anna Eshoo used to be my Congressional representative, so I paid particular attention to her remarks in the recent Markey Committee hearing on Internet privacy. Frankly, she’s an embarrassment. She started her remarks by jumping all over Scott Cleland for being a shill of the broadband industry, which would be funny if it weren’t so … Continue reading “What’s good for Google is good for the Internet”

Anna Eshoo used to be my Congressional representative, so I paid particular attention to her remarks in the recent Markey Committee hearing on Internet privacy. Frankly, she’s an embarrassment. She started her remarks by jumping all over Scott Cleland for being a shill of the broadband industry, which would be funny if it weren’t so pathetic. Scott started his remarks by disclosing who pays him, and I didn’t hear any disclosure from Rep. Eshoo about who’s paying her (see: Open Secrets for details of Google employee contributions to Eshoo and for Google PAC bucks. This Congresswoman has raised $3 million from PACs.)

She carried Google’s water, essentially saying: “Google is entitled to rape and pillage personal information for their own purposes, but nobody else better mess with it in the slightest way.” You can see the video of the hearing here, warts and all. Eshoo, like her colleague Zoe Lofgren (D, Google) has a place in these hearings, but it’s at the table with all the other lobbyists, not on the dias.

Aside from Eshoo, it wasn’t a totally bad hearing. Markey likes to simplify issues to the point that they’re all so black-and-white that you can’t see why they warrant discussion, but the witnesses were (with one exception) pretty clear on the fact that DPI is simply a technology, and as such has no moral significance. What matters, obviously, is how it’s used.

After all the hand-wringing, it should be clear that DPI isn’t a privacy issue in its own right because it’s simply a tool for harvesting information out of network packets. The privacy issues are solely in the realm of the information itself: who provides it and under what terms, who processes it, and who retains it. And these same issues have to be addressed for all personal information, on the Internet or off it, in the packets or on the web site.

But the pattern here is something that’s all too common in Congress: this technology has a scary name, so it must be bad. The focus on the technology with the scary name then takes up the time that should be spent on the important issue, privacy.

But privacy isn’t black-and-white, so we better not talk about it; it might be bad for Google.

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The future of P2P

Nate Anderson writes an interesting blurb on the P2P Next research project in the Netherlands. The researchers hope to build a platform suitable for live TV delivery over the Internet: Dutch academic Dr. Johan Pouwelse knows BitTorrent well, having spent a year of his life examining its inner workings. Now, as the scientific director of … Continue reading “The future of P2P”

Nate Anderson writes an interesting blurb on the P2P Next research project in the Netherlands. The researchers hope to build a platform suitable for live TV delivery over the Internet:

Dutch academic Dr. Johan Pouwelse knows BitTorrent well, having spent a year of his life examining its inner workings. Now, as the scientific director of the EU-funded P2P-Next team, Pouwelse and his researchers have been entrusted with €19 million from the EU and various partners, and what they want in return is nothing less than a “4th-generation” peer-to-peer system that will one day be tasked with replacing over-the-air television broadcasts.

P2P-Next is the largest publicly-funded team in the world working on such technology (though plenty of researchers at Microsoft, IBM, and countless tiny startups are also racing to deliver a better P2P experience), and today the team launched a trial program designed to test its progress to date.

What sets the project apart from the traditional BitTorrent architecture is its focus not on downloadable video, but on live streaming. Current BitTorrent implementations, focused as they are on offering easy access to downloadable content, aren’t well suited to delivering live streaming TV across the Internet, but Pouwelse is convinced that this is the future. There’s “no doubt that TV will come through the Internet in a few years,” he told Ars earlier this week. Obviously, deployment of such a system depends on consumer electronics firms and broadcasters, but Pouwelse’s job is to make sure that the technology is ready when they are.

P2P has a lot of issues and problems as a delivery vehicle for live TV, so I don’t think this is a good approach, but a system that caches popular content in numerous places has the potential to distribute large and popular files with little redundant delivery. The important feature of such a system is its caching capability, however, not its “peer-to-peerness.”

See Torrent Freak for many more details.

Public Knowledge’s new star off the rails

Public Knowledge and Free Press have apparently hired file-sharing enthusiast Robb Topolski in some lofty-sounding role, and he feels compelled to expound on network theory that’s way over his head. I’m trying to correct some of his misunderstandings, but it’s not going well. Here’s what I told him at his new employer’s blog:

Public Knowledge and Free Press have apparently hired file-sharing enthusiast Robb Topolski in some lofty-sounding role, and he feels compelled to expound on network theory that’s way over his head. I’m trying to correct some of his misunderstandings, but it’s not going well. Here’s what I told him at his new employer’s blog: Continue reading “Public Knowledge’s new star off the rails”

Network World on Martin’s rash order

Network World’s Brad Reed has a pretty good news piece on the order FCC chairman Kevin Martin is trying to sell to the Comission’s Democrats. He quotes one of my favorite people, me: Network architect and inventor Richard Bennett, who has long been critical of net neutrality advocates, says he has some concerns about the … Continue reading “Network World on Martin’s rash order”

Network World’s Brad Reed has a pretty good news piece on the order FCC chairman Kevin Martin is trying to sell to the Comission’s Democrats. He quotes one of my favorite people, me:

Network architect and inventor Richard Bennett, who has long been critical of net neutrality advocates, says he has some concerns about the precedent the FCC sets if it votes to affirm Martin’s recommendation. In particular, he worries that the principles in the FCC’s policy statement are far too broadly defined and they will be used to encumber upon traffic management practices that are necessary for ISPs to keep their QoS high for the majority of their customers. Bennett says while ISPs should be barred from engaging in anticompetitive behavior by actively discriminating against rival online content, it should be allowed to slow or even stop transfers that are degrading the Web experience for other users.

“Even in this case where the FCC has banned the used of application-based discrimination, it’s perfectly reasonable for ISPs to discriminate against applications on behalf of a particular user,” he says. “Say you’ve got two customers, and one is using VoIP and the other is using BitTorrent. You’re going to need to give VoIP traffic preference over BitTorrent in order to ensure quality of service.”

I actually said something a little different. I want the ISP to allocate bandwidth fairly among users of a given service tier, and then prioritize within each account. So if the same user is running BitTorrent and Vonage at the same time, I want the Vonage traffic to have priority. Martin’s order would ban that practice, and that would be a Bad Thing.

The fact that Martin is proposing to do just that tells you that the FCC is not ready to impose regulations on ISPs yet. More study is needed, and some public comment on the proposed rules.

Kind of like, you know, a formal rule-making procedure. Hell of an idea, eh?

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David Sohn of CDT makes the right points

Commenting on the pending FCC action against Comcast, the CDT’s David Sohn says most of what needs to be said: In order to engage in enforcement, there needs to be either: (1) An existing, articulated rule or standard against which to judge behavior; or (2) Authority for the enforcement body to adjudicate and issue rulings … Continue reading “David Sohn of CDT makes the right points”

Commenting on the pending FCC action against Comcast, the CDT’s David Sohn says most of what needs to be said:

In order to engage in enforcement, there needs to be either:

(1) An existing, articulated rule or standard against which to judge behavior;
or
(2) Authority for the enforcement body to adjudicate and issue rulings based on general notions of fairness/equity.

It is difficult to argue that number (1) is present here. The FCC expressly stated that its broadband principles are not rules. If they are not rules, then it is hard to see how the FCC can turn around and try to police violations of them as if they were . . . well . . . rules. Doing so would put the FCC on perilously shaky legal ground.

As for number (2), CDT believes that everyone with a stake in the Internet — which at the end of the day is pretty much everyone, period — should be extremely wary of any assertion of open-ended and highly discretionary FCC jurisdiction over broadband Internet service. Even those who may like what the FCC proposes regarding the Comcast question should consider that they may be far less happy with what some future FCC may do, once the door to largely unguided regulatory action is open. CDT believes that the FCC neither has nor should have open-ended authority to craft policies for the Internet out of whole cloth.

This is the problem with suggesting, as some commentators have, that Internet neutrality concerns could be addressed via case-by-case adjudication and enforcement rather than ex ante rules. You can’t adjudicate and gradually build up a body of common law unless there is some underlying standard to adjudicate against — or unless you have broad authority to make law from scratch. That’s why CDT continues to call for legislation in this area. Having the FCC initiate and craft the entire legal framework, without Congress setting the parameters, cedes too much authority to the agency.

It will be interesting to see how an eventual FCC order, if there is one, addresses the murky legal status of the FCC’s Policy Statement and what legal hook the agency tries to hang its action on.

One other thing I’d add is this: an ideal residential Internet access system needs to be managed in two different but equally important phases:

1) Allocate bandwidth fairly among competing accounts; and then

2) Prioritize streams within each account according to application requirements.

Phase 1 keeps you from being swamped by your neighbor, and keeps you from swamping him, and Phase 2 prevents your VoIP session from being swamped by your BitTorrent session.

The problem with the Comcast Sandvine system is that it skips phase 1 and simply does phase 2, application-level traffic shaping. And the problem with the FCC order that Chairman Martin is floating about is that it makes phase 2 shaping illegal. It’s incredibly useful to manage streams for each user as he would want them managed if he had direct control over them. I think future home gateways will empower users to do this, but in the meantime it’s desirable for the ISP to manage sessions appropriately.

The first rule of regulation should be “do no harm,” and on that basis Martin’s prescription is bad medicine.

FCC Hearing at Carnegie Mellon

Here’s the witness list for the July 21st FCC hearing at CMU: 4:00 p.m. Welcome/Opening Remarks 4:30 p.m. Panel Discussion 1 – The Future of Digital Media Panelists: Mark Cuban, Chairman & Co Founder HDNet, Owner – Dallas Mavericks Jon Peha, Professor, Department of Engineering and Public Policy, and Department of Electrical and Computer Engineering, … Continue reading “FCC Hearing at Carnegie Mellon”

Here’s the witness list for the July 21st FCC hearing at CMU:

4:00 p.m. Welcome/Opening Remarks
4:30 p.m. Panel Discussion 1 – The Future of Digital Media
Panelists:

Mark Cuban, Chairman & Co Founder HDNet, Owner – Dallas Mavericks
Jon Peha, Professor, Department of Engineering and Public Policy, and Department of Electrical and Computer Engineering, Carnegie Mellon University
Mark Cavicchia, CEO, Founder & Director, WhereverTV
Matthew Polka, President & CEO, American Cable Association
Jake Witherell, Sim Ops Studios
John Heffner, Conviva
Representative, You Tube

5:30 p.m. Panel Discussion 2 – The Broadband of Tomorrow
Panelists:

David Farber, Distinguished Career Professor of Computer Science and Public Policy, School of Computer Science, Carnegie Mellon University
Rahul Tongia, Senior Systems Scientist, Program on Computation, Organizations, and Society, School of Computer Science, Carnegie Mellon University
Robert W. Quinn, Jr., Senior Vice President – Federal Regulatory, AT&T, Inc.
Rey Ramsey, Chairman & CEO, One Economy Corporation
Rendall Harper, Board Member, Wireless Neighborhoods
Scott Wallsten, Vice President for Research and Senior Fellow, Technology Policy Institute
Marge Krueger, Administrative Director, Communications Workers of America District 13

6:30 p.m. Public Comment Period
8:30 p.m. Adjournment

A live web cast of the hearing will be available to the public on the FCC’s website at: http://www.fcc.gov/realaudio/#jul21 — you may also go to “FCC Meetings” from the homepage and then click on FCC Audio/Video events to access the web cast.

————

One significant detail: Google is breaking its silence on Net Neutrality Phase II by having its YouTube division speak. Another interesting thing is that Prof. Jon Peha gets a second bite at the apple. He’s the guy who made significantly false testimony at the Stanford hearing on the relationship of TCP Resets and BitTorrent transactions. I hope he corrects his former misstatements of fact.

Mark Cuban is always entertaining, but I imagine Prof. Farber will show the most insight.