Has the FCC Created a Stone Too Heavy for It to Lift?

After five years of bickering, the FCC passed an Open Internet Report & Order on a partisan 3-2 vote this week. The order is meant to guarantee that the Internet of the future will be just as free and open as the Internet of the past. Its success depends on how fast the Commission can transform itself from an old school telecom regulator wired to resist change into an innovation stimulator embracing opportunity. One thing we can be sure about is that the order hasn’t tamped down the hyperbole that’s fueled the fight to control the Internet’s constituent parts for all these years.

Advocates of net neutrality professed deep disappointment that the FCC’s rules weren’t more proscriptive and severe. Free Press called the order “fake net neutrality,” Public Knowledge said it “fell far short,” Media Access Project called it “inadequate and riddled with loopholes,” and New America Foundation accused the FCC of “caving to telecom lobbyists.” These were their official statements to the press; their Tweets were even harsher.

Free marketers were almost as angry: Cato denounced the order as “speech control,” Washington Policy Center said it “fundamentally changes many aspects of the infrastructure of the Internet,” and the Reason Foundation said it will lead to “quagmire after quagmire of technicalities, which as they add up will have a toll on investment, service and development.”

Republican Congressional leaders made no secret of their displeasure with the FCC’s disregard for their will: Rep. Fred Upton (R, Michigan,) the incoming Commerce Committee Chairman called it a “hostile action against innovation that can’t be allowed to stand,” Rep. Greg Walden (R, Oregon,) incoming Chairman of the Subcommittee on Communications and Technology called it a “power grab,” and vowed to hold hearings to overturn it, while Sen. Kay Bailey Hutchison (R, Texas,) Ranking Member of the Senate Commerce, Science, and Transportation Committee said the order “threatens the future economic growth of the Internet.” Setting Internet policy is indeed a Congressional prerogative rather than an agency matter, so the longer-term solution must come from the Hill, and sooner would be better than later.

Contrary to this criticism and to snarky blogger claims, not everyone was upset with the FCC’s action, coming as it did after a year-long proceeding on Internet regulation meant to fulfill an Obama campaign pledge to advance net neutrality. The President himself declared the FCC action an important part of his strategy to “advance American innovation, economic growth, and job creation,” and Senator John Kerry (D, Massachusetts) applauded the FCC for reaching consensus.

Technology industry reaction ranged from positive to resigned: Information Technology Industry Council President and CEO Dean Garfield declared the measure “ensures continued innovation and investment in the Internet,” TechNet supported it, and National Cable and Telecommunications Association head Kyle McSlarrow said it could have been much worse. At the Information Technology and Innovation Foundation, we were pleased by the promises of a relatively humble set of the rules, less so with the final details; we remain encouraged by the robust process the FCC intends to create for judging complaints, one that puts technical people on the front lines. In the end, the order got the support of the only majority that counts, three FCC commissioners.

Most of us who reacted favorably acknowledged the FCC’s order wasn’t exactly as we would have written it, but accepted it as a pragmatic political compromise that produces more positives than negatives. The hoped-for closing of the raucous debate will have immense benefits on its own, as simply bringing this distracting chapter in the Internet’s story to an end will allow more time for sober discussion about the directions we’d like the Internet to take in its future development. There is no shortage of policy issues that have been cramped by the tendency to view net neutrality as the one great magic wand with the power to solve all the Internet’s problems: The FCC has work to do on freeing up spectrum for mobile networking, the Universal Service Fund needs to be reformed, and the National Broadband Plan needs to be implemented.

If the FCC’s approach proves sound, it might well be exported to other countries, forming the basis of a consistent international approach to the oversight of an international network developed on consistent standards of its own. Such an outcome would have positive consequences for the Internet standards community, which has its own backlog of unfinished business such as scalable routing, congestion management, security, and the domestication of peer-to-peer file sharing and content delivery networks to resolve. This outcome is far from inevitable; last minute rule changes make it less likely than it might have been.

The most important thing the FCC can do in implementing its system of Internet oversight is to elevate process over proscriptive rules. The traditional approach to telecom regulation is to develop a thick sheath of regulations that govern everything from the insignias on the telephone repair person’s uniform to the colors of the insulators on RJ11 cables and apply them in top-down, command-and-control fashion. Many of those on the pro-net neutrality side are steeped in telecom tradition, and they expected such an approach from the FCC for the Internet; theirs are the angry reactions.

But the Internet isn’t a telecom network, and a foot-high stack of regulations certainly would produce the negative consequences for innovation and progress the FCC’s critics have forecast. The appropriate way to address Internet regulation as to follow the model that the Internet has developed for itself, based on a small number of abstract but meaningful principles (each of which is subject to change for good reason) applied by a broad-based community of experts in a collaborative, consultative setting. Internet standards are not devised in an adversarial setting populated by angels and devils locked into mortal combat; they come from a process that values “rough consensus and running code.”

The specifics of the FCC’s order nevertheless give pause to those well-schooled in networking. A few hours before the Commission’s vote, Commissioner Copps persuaded Chairman Genachowski to reverse the Waxman Bill’s presumption regarding the premium transport services that enable Internet TV and video conferencing to enjoy the same level of quality as cable TV. Where the early drafts permitted these services as long as they were offered for sale on a non-discriminatory basis, the final rule arbitrarily presumes them harmful.

The order makes hash of the relationship of the content accelerators provided by Akamai and others to the presumptively impermissible communication accelerators that ISPs might provide one day in order to enable HD group video conferencing and similar emerging applications. The Commission majority fears that allowing network operators to offer premium transport to leading edge apps will put the squeeze on generic transport, but fails to consider that such potential downsides of well-accepted technical practices for Quality of Service can be prevented by applying a simple quota limit on the percentage of a pipe that can be sold as “premium.” This fact, which is obvious to skilled protocol engineers, goes unmentioned in the order.

The poor reasoning for this rule casts doubt on the FCC’s ability to enforce it effectively without outside expertise. By rejecting Internet standards such as RFC 2475 and IEEE standards such as 802.1Q that don’t conform to the telecom activists’ nostalgic, “all packets are equal” vision of the Internet, the FCC chose to blind itself to one of the central points in Tim Wu’s “Network Neutrality, Broadband Discrimination” paper that started the fight: A neutral Internet favors content applications, as a class, over communication applications and is therefore not truly an open network. The only way to make a network neutral among all applications is to differentiate loss and delay among applications; preferably, this is done by user-controlled means. That’s not always possible, so other means are sometimes necessary as well.

All in all, the Commission has built a stone too heavy for it to lift all by itself. The rules have just enough flexibility that the outside technical advisory groups that will examine complaints may be able to correct the order’s errors, but to be effective, the advisors need much deeper technical knowledge than the FCC staffers who wrote the order can provide.

It’s difficult to ask the FCC – an institution with its own 75 year tradition in which it has served as the battleground for bitter disputes between monopolists and public interest warriors – to turn on a dime and embrace a new spirit of collaboration, but without such a far-reaching institutional transformation its Internet regulation project will not be successful. Those of us who work with the FCC are required to take a leap of faith to the effect that the Commission is committed to transforming itself from a hidebound analog regulator into a digital age shepherd of innovation. Now that the Open Internet Report & Order has passed, we have no choice but to put our shoulders to the rock to help push it along. There’s no turning back now.

[cross-posted from the Innovation Policy Blog]

Thirty Profiles

Dave Burstein of DSL Prime has posted profiles of 30 FCC candidates to his web site, including one transition team member:

Susan Crawford, now teaching at Michigan, also has enormous respect from her peers and would bring international perspective from her role at ICANN setting world Internet policy

The selection of Crawford to join Kevin Werbach on the FCC transition team has already gotten some of my colleagues on the deregulatory side pretty excited, as she has the image of being a fierce advocate of a highly-regulated Internet. And indeed, she has written some strong stuff in favor of the “stupid network” construct that demands all packets be treated as equals inside the network. The critics are missing something that’s very important, however: both Werbach and Crawford are “Internet people” rather than “telecom people” and that’s a very important thing. While we may not like Crawford’s willingness to embrace a neutral routing mandate in the past, the more interesting question is how she comes down on a couple of issues that trump neutral routing, network management and multi-service routing.

We all know by now that the network management exception is more powerful than Powell’s “Four Freedoms” where the rubber meets the road, but we lack any clear guidance to ISPs as to how their management practices will be evaluated. Clarification of the rules is as much a benefit to carriers as it is to consumers. The one way to ensure that we all lose is to keep lumbering along in the murk of uncertain authority and secret rules. Internet people are going to ask the right questions to their candidates, and anybody who can satisfy both Werbach and Crawford will have to be a good choice. Check Werbach’s web site for his papers. Unfotunately, the most interesting of them is not yet in print, “The Centripetal Network: How the Internet Holds Itself Together, and the Forces Tearing it Apart”, UC Davis Law Review, forthcoming 2008. Perhaps he’ll post a draft.

The question of multi-service routing is also very important. Crawford has written and testified to the effect that the Internet is the first global, digital, multi-service network, which is substantially correct. The Internet is not fully multi-service today, however, and can’t be unless it exposes multiple service levels at the end points for applications to use easily. The generic public Internet has a single transport service which has to meet the needs of diverse applications today, which is not really an achievable goal in the peer-to-peer world.
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