The Internet Has Always Been Open, It’s The Platforms & Devices That Are Closed

As expected, today’s vote on the FCC’s proposed net neutrality rules passed with a 3-2 margin. While this is a big step in a process that has been going on for thirteen years now, we’re still a long way off from this debate being over. Since a draft of the proposal wasn’t shared with the public we still don’t know what exactly the rules state or how to interpret them. We’ve also learned that FCC Commissioner Clyburn did get FCC Chairman Wheeler to make “significant changes” to the newly passed FCC rules, but what those changes are we won’t know until we get to see the actual language.

The problem is that even when we do get to read the new rules, many of the words used are going to be vague. Things like “fair” and “unreasonable” have no meanings. What is the baseline that will be used to define what is fair, and what isn’t? Apparently that is up to the FCC and from what I am told, the new rules provide no definitions or methodology at all of how those words will be put into practice. Vague, high-level language isn’t what we need more of, yet that’s what we get when the rules are being written by politicians. It also doesn’t help that many in the media still can’t get the basic facts right, which only continues to add more confusion to the topic. My RSS feed is already full of more than a hundred net neutrality posts and some, like this one from Engadget, get the very basics wrong.

The post says that the new rules will, “ban things like paid prioritization, a tactic some ISPs used to get additional fees from bandwidth-heavy companies like Netflix,” except that Netflix is getting NO prioritization of any kind. Netflix has a paid interconnect deal with Comcast and other ISPs but a paid interconnect deal is not the same thing as paid prioritization. All you have to do is read the joint press release by Comcast and Netflix, to know this as it clearly states that, “Netflix receives no preferential network treatment“. Engadget is not the only media site to get this wrong. These are the basics, if people can’t get those right, what chance do we have of having an educated discussion on net neutrality rules when people don’t even know what they apply to?

For all the talk of how this now help consumers with regards to blocking or throttling of content via wireline services, it has no impact. We don’t have a single example of that being done by any wireline ISP, so there isn’t a problem that needs fixing. To me, the biggest piece of language in the new rules is that the FCC is using Title II classification not just for ISPs, but also edge providers. This gives the FCC the right to examine the ISP practices downstream to broadband consumers as well as upstream to edge providers. But is the oversight and regulations for upstream and downstream going to be the same? Probably not and one would expect it could¬†very well be different.

I find it funny that the term “open Internet” keeps being used. Has the Internet ever been “closed” to anyone? I’ve never heard of any consumer complaining that they went to a website or content service and it was denied on their device, do to their wireline ISP provider. It’s usually denied on the device because the platform or device has a closed ecosystem, which the net neutrality rules don’t address. So for those that have been saying that today’s vote now, “opens up the Internet to be a level playing field”, think again. The Internet itself has always been open, the apps and platforms we use, for the most part, are all closed.

  • Paul Sweeting

    I don’t think it’s correct to say that “things like ‘fair’ and ‘unreasonable’ have no meaning” in this case. They are common legal and regulatory terms of art and the FCC said it will apply those standards on a case by case basis based on the substantive record and precedents get established. That’s how case law evolves.

    • danrayburn

      Where are those terms defined? What is the FCC working off of when it comes to base pricing, to determine if an interconnect deal is fair, from a pricing standpoint? I can’t find any prior case where the FCC defined, based on a pricing metric, if something was fair or not.

      • Paul Sweeting

        I didn’t say it was defined in this context. I don’t think the FCC is claiming it’s defined in this context. The general counsel acknowledged in his press conference that there is, as yet, no case law or precedent on point, which is also why they did not attempt to apply bright line rules to interconnect. There are countless statutes and regulations on the books that use similar language to create similarly flexible standards. Standards evolve over time.

        • “Fair and reasonable” are the three most litigated words in the law, they’re been contested thousands of times and they have no precise meaning. In practice, they come to mean “fair and reasonable is whatever the heaviest donor wants to do”.

          An “all packets are equal” rule is neither fair nor reasonable given that applications have different needs. Even Tim Wu’s “Network Neutrality, Broadband Discrimination” paper recognized that.

          • Paul Sweeting

            My point exactly. It’s a heavily litigated phrase. It’s not as if the FCC is introducing some novel concept here. The fact that Richard Bennett may disagree with many of the outcomes of that litigation is not evidence that the phrase has no meaning. As to whether an “all packets are equal” rule is fair and/or reasonable, I wasn’t actually announcing a position on that question. I merely challenged Dan’s assertion that the term has no meaning.

          • The only established meanings of “fair and reasonable” in Title II related to the properties of phone calls. Is that what we want for packets? All packets are equal on the PSTN because there’s only one app.

  • Jon_Irenicus

    Nobody cares that services built on top of the internet are closed. They care that the access to the internet is not distorted by whoever they have to go through to get access to the internet.

    A couple of practices that have a good chance of being checked seem to be the following.

    Paid exemptions from data caps for services that pay the ISP. We’ve already seen this sort of deal with tmobile and comcasts own xfinity service in select markets where it is doing test trials of capped wired data. I don’t know if comcast is still doing this, but they were exempting their own video on demand data from using any of the caps, but all the other video on demand services one might subscribe to (amazon prime, netflix, hulu, etc) have no such exemption from the caps. The result is of course the ISP (often the only legitimate provider in an area capable of allowing hd video streams) is using its market power to privilege its own services over its competitors. I wonder if Dan or Richard considers this fair play?

    There will probably be some recourse from companies like netflix paying ISPs like comcast and Verizon to peer directly with their networks on costs. If the ISPs try to use their market positions to extract non competitive rates the FCC can intervene. Ideally they should not be charging for content being delivered to their network in the first place since their own subscriber fees should be more than enough to cover such expenses and then some, but at least this will blunt some of the potential abuses down the road as 4k streaming takes off. Let alone 4k/48fps/high bitrate/hdr/4:4:4 streams eventually come online. We need more and more and more bandwidth, and I don’t want some terminating access monopoly using it’s position to artificially increase the expenses of delivering that content. Lazy slow ass companies can’t even be bothered to deliver 1080p content over broadcasts, just grainy looking 720p, who knows when they will get off their ass and even attempt to deliver 4k.

    Netflix is the company pushing these things forward, they actually give a damn about trying to deliver better quality content.

    Another analysis mentioned some movement on rate regulation for pole use. It might be easier for other smaller ISPs or municipalities to get cheaper pole use rates and rights of way. I don’t have any details if this will be a significant factor, but it could be.

  • Jon_Irenicus

    And last but not least, not directly related to title II but just as if not more important. The FCC preempts some of the restrictions on municipal broadband. This is entirely a good thing. I have never, ever, EVER heard Dan comment on this topic so I don’t know his opinion on the matter, but many municipalities around the country have their own gbps fiber networks and want to expand. In some cases the incumbent ISPs have leaned on state representatives to block such efforts by virtually banning such broadband enterprises or expansions. That’s gone now if it survives court challenges. The results here can be far more reaching than the issues surrounding title II because this actually puts a shot in the arm of actual competition from the local side.

    It’s interesting seeing libertarian types complain about municipal broadband. As is their nature, they blame any and all ISP monopolies that may exist on government actions. Perhaps states or local cities eased the issues around rights of way in exchange for more exclusivity in those markets. But when the FCC, another government arm intervenes to correct and dismantle some of those restrictive barriers to increased competition, they still cry foul. A city has no right, it’s more government. Sure. They are so against big government on the federal side, making arguments about how the feds are not as close to the ground as the states. What about the god damn cities? The cities that are even CLOSER to their own communities and voted for broadband build out projects like one might vote on funds for a bridge? THEY don’t get to decide what to do with their own local taxes? The federal government should butt out but not the state government when trying to bully cities? A consistent libertarian would defer to the local community, even if it was a bad decision and failed. But in this case it’s the libertarians arguing on the side that the STATE reps know BETTER than those cities, we don’t CARE what policy THEY want, OUR will is sovereign. Big government libertarians after all, or rather, ISP shills. It just so happens that they fall on the side of large ISP incumbents, there is no principle here.

    • danrayburn

      As far as I am concerned, anything that helps gives consumers more choices for broadband services, be it wireline or wireless, is a good thing.

  • tim305

    I understand that paid prioritization within an ISP network is different than paid peering. But, is there any real practical difference? With packet marking the ISP could preferentially drop packets at bottlenecks within their network. Without, they can just drop them at the network ingress. I can’t see much difference, other than the former allowing them to run their network with a little higher utilization. I know some would use this argument to say that paid peering is just as bad paid prioritization. I would go the other direction and say prioritization is just as good as paid peering.