20. James Vasile Software Freedom Center

1995 Broadway, 17th Floor New York, NY 10023–5882 tel +1–212–580–0800 fax +1–212–580–0898 www.softwarefreedom.org

Testimony of James Vasile before the New York City Council Committee on Technology in Government in re Res. No. 712-A

November 20, 2009

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Introduction

Good morning, Speaker Quinn, Chairperson Brewer, and members of the City Council. Thank you for this opportunity to testify before this committee today. My name is James Vasile, and I am Legal Counsel at the Software Freedom Law Center here in New York. We are a non-partisan, non-profit law firm whose mission is to provide pro-bono legal representation to protect and advance Free and Open Source Software, which is software accompanied by source code that can be viewed, changed, and shared by users. Wikipedia, Wordpress, and Firefox are just some of the Free Software many New Yorkers use everyday. Our clients are responsible for hundreds of other Free Software components, desktops and mobile phones, thus we have an interest in preserving unfettered broadband Internet access in New York. This resolution urges Congress to pass the Internet Freedom Preservation Act of 2009,1 (the “IFPA”) which would require Internet service providers (“ISPs”) to abide by a series of rules known as Network Neutrality principles. These principles would protect New Yorkers against anticompetitive and unfair practices by New York’s broadband providers. I am here today to urge the Council to pass this resolution, and also to urge the city to inject these principles into the franchise agreements that govern how ISPs operate in New York City. I will describe how Network Neutrality can protect New Yorkers and also how the City can achieve these protections for itself, even as it urges Congress to pass legislation in Washington. 1 H.R.

3458, available at http://www.opencongress.org/bill/111-h3458/show.

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Network Neutrality: Behind the Slogan

The IFPA prohibits ISPs from engaging in certain anticompetitive, anticonsumer and unfair practices: (1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service to access, use, send, post, receive, or offer any lawful content, application, or service through the Internet; (2) not impose a charge on any Internet content, service, or application provider to enable any lawful Internet content, application, or service to be offered, provided, or used through the providers service, beyond the end user charges associated with providing the service to such provider; (3) not prevent or obstruct a user from attaching any lawful device to or utilizing any such device in conjunction with such service, provided such device does not harm the providers network; (4) offer Internet access service to any person upon reasonable request therefor; (5) not provide or sell to any content, application, or service provider, including any affiliate provider or joint venture, any offering that prioritizes traffic over that of other such providers on an Internet access service; and (6) not install or utilize network features, functions, or capabilities that impede or hinder compliance with this section.2 Network Neutrality is thus a consumer-protection measure that would ensure that when New Yorkers buy Internet access, they can do anything the technology allows rather than being artificially limited by ISPs seeking to price discriminate between users.

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Higher Prices, Less Service

Network Neutrality ensures that Internet access is just that—access to the entire Internet, not just the World Wide Web, not just email, and certainly not just a walled garden of pre-approved websites and services. ISPs oppose Network Neutrality because they want to be free to engage in a long list of anticompetitive and anticonsumer practices, such as Comcast’s active disruption of peer-to-peer file sharing in 2007. It is these practices that would force New Yorkers to pay more to get online and then limit what we can do once we are there. ISPs oppose Network Neutrality because anticompetitive practices are good for their bottom line. A recent Pew research study on home broadband adoption shows that broadband prices are highly correlated with lack of competition in the broadband market.3 In other words, by increasing competition, Network Neutrality lowers broadband prices across the board. Without Net Neutrality, we risk living in a world where, say, Time Warner makes it hard (or impossible) for its customers to access Google because it made a sweetheart deal with Yahoo. In this world, Verizon could prevent you from using Skype, which competes with Verizon’s FIOS voice service. AOL-Time Warner could support AOL Instant Messenger, but degrade service for Microsoft Instant Messenger. This kind of access that ropes off parts of the Internet is as useless as a car that only drives to Walmart. Network Neutrality saves us from paying for surcharges and upgrading to higher-tiered service plans in order to choose our own software and to access the entire Internet. 2 IFPA 3 See

§12(b), also available at http://www.opencongress.org/bill/111-h3458/text?version=ih&nid=t0:ih:44. http://pewresearch.org/pubs/1254/home-broadband-adoption-2009.

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Without Network Neutrality, competition between service providers would no longer be a straightforward comparison of price and service. Will you pay $5 a month more for RoadRunner with Facebook or do you prefer Verizon with MySpace? Will you pay $10 for email access or just use Yahoo Mail in your web browser? Shopping for an Internet plan will come to resemble choosing a cable television package, with tiered plans that completely decouple prices from the ISPs’ costs and leave no way for customers to buy just the parts they want. Once it becomes impossible to truly compare competing plans based on price, ISPs will no longer compete on price. New York already suffers the consequences of limited selection in broadband providers, and if price competition completely disappears, New Yorkers will start paying more and more money for less and less service.

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Achieving Network Neutrality

Resolution 712-A urges Congress to pass a bill requiring Network Neutrality from the ISPs that serve New York, and I support its passage. Furthermore, there are quicker, more effective and more direct means of protecting New Yorkers from anticompetitive practices. The long-term franchise agreements that allow Cablevision and Time Warner Cable to sell their services in the city expired in 2008. Both companies now operate under temporary agreements while they negotiate new, long-term agreements with the Department of Information Technology and Telecommunications. This means that the City has the power to require ISPs in New York to abide by Network Neutrality principles. I urge the City to require Network Neutrality of ISPs. Moreover, franchise agreements should prohibit the long list of anticompetitive acts, including the ones regularly committed by ISPs in New York City. Specifically, ISPs should be prohibited from capping or metering bandwidth, charging extra for static IP addresses, limiting third-party hardware, filtering traffic based on content or ports, and preventing people from sharing their bandwidth. On this last point, I would offer the example of a landlord who wants to hook up a wireless router to make his building more attractive to potential tenants. Currently, no broadband provider in New York allows sharing a connection. Nobody would stand for General Motors selling cars that can’t be driven by anybody but their purchaser. We shouldn’t stand for ISPs that sell us bandwidth but prohibit us from sharing it.

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Conclusion

The world of technology moves quickly, but one thing has always been true: competition is good for consumers. We allow ISPs to lay cable in the public right of way, and it is time to require that they use this privilege without engaging in anticompetitive practices. New Yorkers need Network Neutrality, and the City should not wait for Congress—it should require fair play directly in the franchise agreements it makes with the ISPs. Thank you.

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