Net neutrality now as momentous as Janet Jackson’s nipple (1)

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Setting the bar for public participation in regulatory affairs

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  • Janet Jackson’s nipple: 1.4 million comments
  • Net neutrality: 1.1 million comments (est)

Realists like Farhad Manjoo at the NY Times have called it “the most important sleep-inducing topic around.” So imagine the surprise when, again last week, public interest in network neutrality hit a crescendo of comments so momentous that it crashed the FCC’s wobbly server setup. That leaves the arcane techno-regulatory idea a mere 300,000 comments behind the flood prompted by the Janet Jackson wardrobe malfunction – dubbed Nipplegate – during the Superbowl half-time proceedings on February 1, 2004.

Timberlake yanks off Jackson’s bra and her nipple is exposed for 9/16 of a second. She’s treated like a whore and cancels appearances, while Timberlake keeps his endorsements and wins awards. “Nipplegate” makes the Guiness Book of Records in 2006 as the most-searched term in Internet history. The FCC attempts to levy a fine of $550,000 on CBS, and pursues its case for seven years. In 2011, the Supreme Court elects not to hear the FCC’s appeal, for the second time. Interest is so intense that Nipplegate prompts some guys to create a site for uploading cool videos, which becomes YouTube.

The Jackson/net neutrality contest comes out even better than portrayed above, since the comparison I’ve made is technically unfair. Nipplegate was part of an “indecency” investigation, and the public comments were “complaints” – not “docketed comments on a policy matter in a rulemaking,” as the FCC told Ars Technica last Thursday.

Still, many of the 1.1 million or so comments submitted by last Friday midnight also seem to be complaints (especially about Chairman Wheeler’s crazed attachment to fast lanes). But they are part of an FCC docketed proceeding, launched February 19, so not “complaints” in the official sense. However you do the math, it’s certainly a lot easier to get outraged over a woman’s breast and get off the couch to bitch about it, than it is to get outraged over whether major edge providers should be allowed, or forced, to compensate the incumbent broadband providers for direct interconnection on the basis of paid, rather than settlement-free, peering.

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Paid prioritization is not the culprit: read the Notice

If people get the Internet they deserve, the recent surge of interest in net neutrality might prove to be good for the American consumer (what’s going on with the hapless Canadian consumer I’ll get to later). But as I argued a month ago, the blogosphere has backed itself into a weird corner on these issues. As has the mainstream press that typically argues for the public interest. The NY Times, for example, has kept up its disapproving take on Wheeler’s antics, as in these comments published last week:

Mr. Wheeler’s plan, according to its many critics, would open the door to a two-tier Internet of fast and slow lanes, with affluent companies and households enjoying premium service and everyone else fighting traffic: a death knell for the open Internet and its democratic ethos of “net neutrality.”

Well, it’s true that many of Mr Wheeler’s critics are obsessing about the fast lane/slow lane issue, as in paid prioritization. It’s also very unfortunate that these critics include many of those concerned about the public interest, but who do not seem to have read the actual NPRM (a notice of proposed rule-making fills the same role as a CRTC public notice in setting out the terms of a new proceeding, typically including the various questions the regulator would like the “public” to address).

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Here’s why I think the “lanes” argument is seriously off-base and likely to undermine the open Internet case:

  • The NPRM was not issued to make the case for a 2-lane model on behalf of Wheeler.
  • The NPRM treats prioritization as a marginal idea compared to many others mooted in the document.
  • And as it turns out, Americans already have plenty of prioritization deals between the major edge providers and the major ISPs.

tom-wheelerLike every FCC publication of its kind, this NPRM is long, exhaustive and exhausting, and I suspect many of the pundits worrying about prioritization haven’t actually read it. The document is 99 pages long and backed up by 361 footnotes, some of which are over 500 words long – and that’s just for the substantive part of 63 pages, before you get to the procedural matter, the dissents, etc. The focus on prioritization isn’t just an over-simplification (some simplification is obviously in order). Here’s what the Notice actually says…

The expression “paid prioritization” appears on 8 pages. Its first appearance is at the end of the Introduction (para 10) – after proposals in favor of both i) a transparency provision to ensure everyone has “the information they need to understand the services they are receiving and to monitor practices that could undermine the open Internet;” and ii) a no-blocking provision “to ensure that all end users and edge providers can enjoy the use of robust, fast and dynamic Internet access.” These are followed by a negative comment about the fast-lane thing:

… [W]e propose to create a separate screen that requires broadband providers to adhere to an enforceable legal standard of commercially reasonable practices, asking how harm can best be identified and prohibited and whether certain practices, like paid prioritization, should be barred altogether [emphasis added].

Next up (para 90), the Commission again asks whether paid prioritization should be barred, along with any practices “that harm competition, consumers, and the free exercise of speech.” On page 44, footnote 250 devotes 300 words to citing several prominent opponents of the fast lane: EDUCAUSE, the Future of Music Coalition, Prof. Barbara van Schewick of Stanford, Free Press and the New America Foundation. Most of these comments are explicitly critical of the fast lane concept, like those of van Schewick, concerned about the creation of

two classes of speakers—those who can pay to receive better treatment (e.g., large, established companies or wealthy individuals) and those who cannot afford to do so—often individuals and groups with unpopular or new viewpoints, like activists and artists.

The final comment in the substantive part of the Notice is on page 69, and it too asks whether paid prioritization should be barred. Then things start to get interesting – in the separate Commissioner statements. In his statement, Chairman Wheeler says plainly he doesn’t like paid prioritization (p.86):

The potential for there to be some kind of “fast lane” available to only a few has many people concerned. Personally, I don’t like the idea that the Internet could become divided into “haves” and “have nots.” I will work to see that does not happen. In this Item we specifically ask whether and how to prevent the kind of paid prioritization that could result in “fast lanes.” 

ajit-paiHow about we blame the Republicans instead?

Whether or not you take Wheeler at his word (and many people of apparent good will do not), the problems for the pro-Internet community do not begin and end with this guy. That is made eminently clear in the dissenting statements, which are strangely conspicuous by their absence from the mainstream US debate. Opponents of the big-business, anti-consumer school of thought would do well to pay more attention to what the black hats are saying – who, for the sake of convenience, we’ll call “Republicans.” And that certainly includes the FCC’s two Republican Commissioners.

(continues…)

D.E.

“Neutrality” ruckus prompts FCC inquiry on broadband and congestion

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“We can’t have a situation in which the corporate duopoly dictates the future of the Internet and that’s why I’m supporting what’s called net neutrality.” — Barack Obama, podcast, June 2006

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[June 19: So much for pruning - added 300 words in corrections and background.]

On Friday, June 13, FCC Chairman Tom Wheeler made a short but dramatic statement headlined Broadband Consumers and Internet Congestion. Though barely 450 words long and presented outside any formal setting, Wheeler’s reaction to the public hue and cry over the reliability of retail broadband in the US marks an important step forward for end-user welfare. His announcement puts the lie to the vehement criticisms levelled at him about his betrayal of the Open Internet concept (the FCC’s term of art for net neutrality).

Many of his critics also assumed that the Wheeler FCC would never look into paid peering arrangements – well, they actually said they wouldn’t (“… the rules we propose today reflect the scope of the 2010 Open Internet Order, which applied to broadband provider conduct within its own network.” NPRM, fn 113 – pdf uploaded here). That is what Wheeler has now directed Commission staff to do (request “information from ISPs and content providers”).

While the American public are clearly confused by the net neutrality debate, and for good reason, many ISP subscribers have begun to question whether they’re getting the broadband they’re paying for – whatever the underlying business and technical issues may be. Excerpts from Wheeler’s statement follow (the full pdf is uploaded here):

“For some time now we have been talking about protecting Internet consumers. At the heart of this is whether Internet Service Providers (ISPs) that provide connectivity in the final mile to the home can advantage or disadvantage content providers, and therefore advantage or disadvantage consumers. … 

“Consumers must get what they pay for. As the consumer’s representative we need to know what is going on. I have therefore directed the Commission staff to obtain the information we need to understand precisely what is happening in order to understand whether consumers are being harmed. … 

“The bottom line is that consumers need to understand what is occurring when the Internet service they’ve paid for does not adequately deliver the content they desire, especially content they’ve also paid for. In this instance, it is about what happens where the ISP connects to the Internet. It’s important that we know – and that consumers know.” 

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Continue reading

Klass complaint to CRTC on Bell’s Mobile TV winds up – for now

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Subject: Part 1 application by Benjamin Klass requesting the fair treatment of Internet services by Bell Mobility (Klass application) and Part 1 Applications by CAC-COSCO-PIAC regarding Rogers’ Anyplace TV service and Vidéotron’s Illico.tv Service (CRTC files 8622-B92 201316646, 8622-P8-201400142 and 8622-P8-201400134). 

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Yesterday was the deadline for final reply comments on the Part 1 Application filed last November by Ben Klass. I wrote several posts on Ben’s initiative, starting with this one on November 24, 2013. My second and final submission is pasted in below (with a few copy edits; paragraph numbers remain).

The case brought by Ben is a good opportunity for the Commission to see how its ex-post regime for handling ISP and WSP misdeeds is working. Thus, while I hope the Commission gives Ben his due, I also hope it takes a long hard look at the bigger picture, i.e. the status of the mobile TV services operated by both Rogers (RAP-TV) and Vidéotron (illico mobile), in addition to Bell’s Mobile TV. Continue reading

Just like cable-TV, broadband is still way too expensive in Canada

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Point Topic releases 2014-Q1 global survey of broadband prices

Research consultancy Point Topic has another set of broadband data to add to the dismal news about Canada. Using USD adjusted by the purchasing power parity formula (PPP), they find that of the 90 countries surveyed, Canada ranks in 58th place on the price for a monthly standalone broadband subscription. We’re just under the global mean of $76.61, one step ahead of Mexico. Continue reading

The CRTC tries to drag our TV “system” into the 21st century

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The public hearing announced by the CRTC last week (Broadcasting Notice of Consultation CRTC 2014-190) came with two other newsworthy documents.

One is the Commission’s trial balloon on instituting a pick-and-pay system for TV subscribers, which takes the official form of the CRTC’s Response to Order in Council P.C 2013-1167 (“Maximizing the ability of Canadian consumers to subscribe to discretionary services on a service by service basis” – here). This document contains the seeds of what might be a significant reform to the channel-bundling model. Continue reading

Digital Canada 150: why the Tory plan is risky, not just foolish

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April 17 and a couple of updates

1 – Data caps. Not quite a breaking news update (on my caps comments at the end ofpost-dc150-caps-2 this post), since this story appeared in Ars Technica on March 13. “Time Warner Cable has been offering customers $5 monthly discounts in exchange for giving up unlimited data for the last couple of years, but almost no one has taken the company up on its offer.” In fact, only a few thousand of TWC’s 11.5 million customers have done so.

Here’s the deal: any TWC sub who wants to save the $5 a month can do so by cutting their cap from unlimited to… 30 GB! Jon Brodkin does the math and figures that three months of “excessive” Internet use and that sub loses a year’s worth of savings. The USA’s second most-despised ISP (after Comcast) has a story for that. CEO Rob Marcus claims his customers must value unlimited – duhdoy. Continue reading

CRTC demands answers from Bell on its Mobile TV shellgame

mirko-bibic-1Bell’s CRTC whisperer, Mirko Bibic, got bent out of shape when he saw the CRTC’s annoying interrogatories Friday morning

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Today saw another encouraging step in the CRTC’s management of the Ben Klass Part 1 application on Bell’s Mobile TV service. You can get the backstory in my prior posts (first one was in November) and from Ben’s blog, among other places.

That step was the interrogatories sent to Bell officials, asking for detailed information on Bell’s network architecture, subscriber invoicing, content exclusivity and competition, among other things. I’ve pasted in all 10 of the Commission’s questions below. A couple of comments in the meantime…

bell-mobileTVimageFirst off, the language of the questions demonstrates that the Commission is taking Ben’s application to heart, and that it sees a prima facie case against Bell for violating telecom rules. On one crucial point, whether Mobile TV is simply a broadcasting service as Bell claims, the Commission staff want to hear an explanation of the “inconsistency” in Bell’s statements on this matter – as well as of “how a data service that uses the Internet is not a telecommunications service” (yes, Bell argues that its quacking duck ain’t no water fowl no how). Continue reading

European Parliament votes 534 to 25 for network neutrality

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Here in Canada, our idea of a free and open Internet is being held hostage by the CRTC. Its TV Talks consultation makes it very clear that a non-discriminatory Internet is going to continue to play backseat to our quaint, moribund notion of TV culture – which Ottawa thinks is still holding the country together from sea to shining sea.

In a far more vociferous debate on net neutrality, the US open Internet community has been pitted against the outré posturings of many Republicans, who want their government to stay in the business of regulating the Internet through ICANN, but condemn the FCC’s latest attempt to revive its Open Internet Order as a form of censorship, an innovation killer and a solution in search of a problem. The Republicans have ingeniously, and disingenuously, co-opted the the whole notion of a free and open Internet in their current lingo, while winning headline battles by turning every attempt to protect innovation, free speech and access to bandwidth as part of the unspeakable idea of… gasp, regulating the Internet!

PilardelCastilloVera-1Meanwhile, earlier today, the European Parliament voted by an overwhelming majority to pass the report tabled by member Pilar del Castillo Vera of Spain that outlines a strong, unambiguous framework for protecting EU citizens from unwarranted discrimination on the Internet. The European support for net neutrality, which may still wait months for endorsement by member nations, is dripping with irony. (The release page is here, excerpt below.) Continue reading