The New Net Neutrality Bill

by publius

I just finished reading the net neutrality bill that Markey and Eshoo introduced last week -- the "Internet Freedom Preservation Act of 2009 (H.R. 3458) (pdf).  And it's really good stuff.  The leadership should move on it.

The bill covers all the more well-known problems.  For instance, it prevents Internet providers from blocking sites, and from entering into agreements to deliver certain sites at higher speeds.  That's all to the good.

But the bill has several important provisions that you may not be as familiar with.  Below the fold, I've listed a few that stood out to me:

Ensuring Sufficient Bandwidth

One challenge in promoting open networks is the Whack-A-Mole problem.  You can prevent one bad network practice, but then a new one emerges to take its place.

Bandwidth caps fall into this category.  Even if Congress requires carriers to treat traffic "neutrally," they can accomplish the same goals by limiting your bandwidth, or by limiting the amount of data you can download in, say, a month. 

Comcast, for instance, wants you to rent movies from them -- not from iTunes, not from BitTorrent.  If they can't block these sites, they can still limit your ability to download from them by instituting bandwidth caps.  After a few downloads of HD movies, you'd be over the limit. 

This practice would be "neutral," but still discriminatory.  Caps aren't a big problem now, but they will be in the very near future with the continued growth of HD and other high-data video services.

The bill, however, explicitly requires providers to "make available sufficient capacity . . . [for] services that require high bandwidth communications."  Basically, it gives the FCC authority to see what's really going on if things like caps are instituted. 

Plus, it makes increased capacity a national policy goal.  Virtually every complaint that Internet providers raise goes away with more capacity.  That's why we need to create incentives to expand, as opposed to creating incentives to maintain scarcity.  Neutrality requirements do that.

Network Management

Under any neutrality scheme, carriers need to be able to protect their networks.  The fear, though, is that they'll do bad things like block BitTorrent under the guise of "network management."

The bill strikes a good balance here.  It allows for reasonable network management, but also puts a strong burden on carriers to justify their practices.  Specifically, the bill echoes the language of strict scrutiny -- carriers can do network management, but it has to be "narrowly tailored" to a "critically important interest."

Public Disclosure

The bill also requires providers to publicly disclose information about their service -- things like speed, limitations, etc.  The beauty of public disclosure is that it allows the FCC to "crowdsource" network monitoring.  By publicly disclosing this information, the Army of Davids can more easily detect monkey business.  And that's a huge deterrent.

Stand-Alone Internet Service

The bill requires providers to sell "stand-alone" Internet access.  Let's say you only wanted Internet access from Comcast.  The bill would prevent Comcast from requiring you to buy video service, or other "bundles" of services.

Expedited Complaint Procedures

The bill requires the FCC to rule on neutrality complaints within 90 days, and thus prevents Internet providers from dragging proceedings out. 

Delay tends to hurt smaller companies and startups because the risk and uncertainty limits their ability to get capital.  This is arguably what happened in Verizon's patent litigation against Vonage -- even if Verizon didn't win (which they did), they could spook investors by dragging Vonage into a long and expensive discovery process.

Wireless Net Neutrality

I'm not 100% sure, but I read the bill as establishing open device requirements that would apply to wireless devices too (so long you can access the Internet from them).  Under this regime, customers could buy devices like the iPhone and use them on any network they pleased.  Don't quote me on that yet -- I'm still trying to confirm.  But that's how I read p.7 [(b)(3)], combined with the definition of "Internet Access Service Provider" on p.13.

Either way, it's a really good bill.

Comments

[Matt Osborne]

This is genuinely good news for a progressive blogosphere full of oh noes.

[Gary Farber]

Good post. Very understandable on important issues that lots of people who depend on the internet, and high bandwidth, pay little attention to.

[john b]

am i the only one who feels very pessimistic that this ever even gets up for a vote?

senators and congressmen aren't exactly the most net-savvy, so i can't imagine this being high on their priority list for the next couple decades.

[Turbulence]

Caps aren't a big problem now, but they will be in the very near future with the continued growth of HD and other high-data video services.

Would the bill prohibit pay per use plans? In other words, could Comcast offer me a 1GB plan for $20/month and an unlimited plan for $100/month? If it does, that seems strange since providers pay for bandwidth, but if it doesn't, then it seems like providers could easily circumvent restrictions on caps. Or is the goal here just to stop providers from offering "unlimited" plans that are actually capped?

The bill would prevent Comcast from requiring you to buy video service, or other "bundles" of services.

Does Comcast actually do this now? In my area at least, Comcast is happy to sell you internet service alone, but if you add basic cable, the total price will be $10-$20 less. Would the bill affect that practice?

[John Harrold]

Comcast, for instance, wants you to rent movies from them -- not from iTunes, not from BitTorrent.

I must have missed the bittorrent movie rental service. Could you please point me to it?

I can sympathize with your thoughts though. I've actually had my internet access cut off after I downloaded over 100 gb in a month --- those weren't HD movies from iTunes. However my only quibble was that this wasn't explicitly laid out in the service agreement.

Once providers stop advertising "unlimited downloads", I really don't have a problem with the bandwidth caps. Then they can sell me whatever service I require. I mean, why not have the federal government force phone companies to provide unlimited text messages -- or what ever a bunch of bureaucrats deem "reasonable".

[Marty]

Good post, frames the discussion well. This is a really bad idea. Net neutrality has the equivalent goal of the power grid.

However, it is not the power grid. The issues don't have to do with Comcast or Verizon, those guys buy access and then break it down and resell it. The important issue is to adequately protect the backbone, not manage the access providers.

Or, short Marty, just another place the government is mucking around where it doesn't belong.

[Ews]

Um, just a quibble Marty, but while you're right that Comcast is a last miler, Verizon owns a fair portion of backbone.

Oh and turbulence, while I've never heard of a cable company not selling internet alone, years ago the local phone company refused to sell me data access without a voice line. No idea if they still have that silly policy now.

[Turbulence]

The important issue is to adequately protect the backbone, not manage the access providers.

What are you talking about Marty? Protect the backbone from what?

[publius]

for now, the backbone is pretty competitive. i don't think regulation is necessary there (yet), and very few scholars are calling for it right now (other than maybe a basic interconnection requirement)

[Marty]

"The important issue is to adequately protect the backbone, not manage the access providers.

What are you talking about Marty? Protect the backbone from what?"

Good question Turb. The real challenge is that the large backbone providers (Tier 1 and to some extent Tier 2) will have to continually expand bandwidth, security, management, provisioning and speed. The important issue, to me, is to protect these guys from over regulation, not protect the consumer from them. So I agree with publius.

"for now, the backbone is pretty competitive. i don't think regulation is necessary there (yet), and very few scholars are calling for it right now (other than maybe a basic interconnection requirement)"

The consumers are pretty well protected if we enforce standard consumer protection laws on disclosure etc.

[Turbulence]

The consumers are pretty well protected if we enforce standard consumer protection laws on disclosure etc.

I disagree. If you look at the crazy things that Skype has to do in order to evade carrier interference, it seems that consumers are not sufficiently well protected and I don't see how better enforcement of consumer protection laws would remedy these problems. To be more specific: I like using Skype. I don't like using my network provider's third rate VOIP clone that competes with Skype. I don't think my provider should have the ability to preferentially interfere with Skype packets that cross its network just so they can eliminate the competition and force me to use their third rate service. And I definitely don't think I should have to pay more so that Skype engineers can spend their time coming up with ever more inventive ways to evade the ever more devious forms of interference my provider conjures up.

Can you explain to which specific consumer protections laws apply in this case?

[Gary Farber]

Then there's this power-struggle , though it's not a "net neutrality" issue.

But it did come to mind, my having read it last night, when I read the sentence "And I definitely don't think I should have to pay more so that Skype engineers can spend their time coming up with ever more inventive ways to evade the ever more devious forms of interference my provider conjures up," even though it's a matter of Apple wanting to keep access to their Itunes Store available only via Iphone, and not, as I say, quite a net-provider issue.

[Sebastian]

I think the Google app/iPhone issue is even more interesting. It is the last gasp from ATT to hold on to their messaging money. (Unlimited data transfer but charge separately for text messages, which clearly aren't data right...)

It is silly that I can send an email through gmail or yahoo on my iPhone (which uses much more bandwidth than a text) under the basic rates but get charged for text messaging.

[Zac]

As a Comcast employee, I can tell you that we are more than happy to sell internet as a standalone service, and do so quite frequently (in fact, I just finished setting such an account prior to posting this). This bill does sound great, though. I hope it gets passed.

[cleek]

protect the backbone from non cable/telco competition, of course.

[publius]

To echo Zac -- stand alone tends to be more important in areas that only have telco DSL. A pretty big chunk of the country doesn't have access to cable broadband -- which creates an effective monopoly.

[Justin]

Let me echo Turbulence's question. We're not talking about prohibiting plans that charge a sliding fee based on usage, right (or I guess a set of tiered plans with caps)? Not that there's a lot of competition surrounding such plans, but they sound like a nice idea.

@sebastian My understanding is that text messages don't go through the same channel as the "unlimited data" on the iPhone. That's the reason that you receive them immediately, but push notifications were a problem. However, it is true that the data costs for sms messages are trivial, and the current rates are rackets.

[publius]

Justin - I think the big point is that it just gives the authority the ability to step in. Some caps probably make sense. If you want to impose a cap between 6 Pm and 10 PM on high-volume users, that's not a huge deal.

But what's the point of monthly cap. Why does anyone care what i download at 3 AM?

The point is that some caps would be overbroad, maybe for anti-compeitive purposes. This bill lets the FCC check it all out. Plus, the ABILITY of the FCC to do it will deter it in the first place

[Turbulence]

But what's the point of monthly cap. Why does anyone care what i download at 3 AM?

Because providers have to pay money for upstream bandwidth? It might be easier for them to get a handle on their upstream charges by offering plans where the total bandwidth is capped than by trying to dynamically rate limit all users.

I assume you wouldn't ask "what's the point of Sprint offering a plan with a monthly cap on cell phone minutes? Why does anyone care who I call at 3 AM?", right?

[publius]

but the justification they cite is congestion. the networks are congested at 3 AM.

[Turbulence]

but the justification they cite is congestion. the networks are congested at 3 AM.

Sure, and it might be the case in some networks that the cheapest way to deal with that is to offer capped plans.

Consider a world where machines that do time based rate limiting are expensive but machines that limit monitor total bandwidth per month are cheap. You don't want to dedicate one of the expensive machines for each subscriber since most of your subscribers are not heavy users. If you can get 90% of your subscriber base to buy into capped plans, you may be able to get away with spending 1/10 as much. For 90% of your subscribers, you run a nightly batch job that checks how much bandwidth they've used that month and if they're over the cap, just shut down their account.

In this scenario, there's nothing anti-competitive about offering capped plans: its just the cheapest easiest way to cut bandwidth costs.