Network Neutrality: A Pipe Nightmare

NETWORK NEUTRALITY: A PIPE NIGHTMARE Shane Lunceford* I.

INTRODUCTION

In order to create legislation to solve a problem, the nature of the problem must be understood. The problem may not have to exist, as some would argue,1 but may only need to be foreseeable. However, creating law to solve an undefined problem may generate new dangers. Network neutrality is a concept with widely varying definitions,2 but perhaps it is best defined by describing its effects. In a network neutral world, all traffic and content on the Internet are created equal.3 As romantic as this idea sounds, it is an oversimplification. This simplified approach has found its way into proposed legislation,4 promising to needlessly regulate technology, rather than public policy, if passed. This paper examines the public policy behind the net neutrality movement, discusses scenarios in technical detail, and surveys the landscape of proposed legislation and the current regulatory framework. This paper demonstrates, through the use of detailed examples, the danger of outlawing technology rather than behavior. How does one draw a line allowing acceptable network management practices without outlawing legitimate uses of technology? Currently, Internet Service Providers (hereinafter “ISPs”) block unsolicited commercial email5 meant for users of their network. This is commonly considered a service, and very few complaints arise from the practice. In fact, organizations, task forces, and legislation have been created to stop the

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Shane Lunceford is a former technical instructor for Excite@Home and Liberate Technologies, where he taught courses on cable modem, DSL, leased circuit, Video on Demand, and interactive television technologies. Mr. Lunceford holds a J.D. from Santa Clara University and a B.S. in Computer Science from California State University, East Bay. See Donna N. Lampert, No Sight Like Hindsight: The 1996 Act and the View Ten Years Later 58 FED. COMM. L.J. 519, 528 (2006) (“[H]istory is rife with examples of industry pleading that regulation is premature and later claiming reliance on no regulation when regulators seek to step in and address abuses.”). Neutrality: Background and Issues, Cong. Research Serv. (Library of Congress) Order Code RS22444, at CRS-1 (May 16, 2006). Joshua Gans, No Longer Self Evident: Is All Internet Content Created Equal?, CENTRE FOR POLICY DEVELOPMENT, Aug. 25, 2006, http://cpd.org.au/article/no-longer-selfevident:-all-internet-content-created-equal%3F. See Internet Freedom and Nondiscrimination Act, H.R. 5417, 109th Cong. (2006); Internet Nondiscrimination Act, S. 2360 109th Cong. (2006); Internet Freedom and Preservation Act, S. 2917, 109th Cong. (2006). Unsolicited commercial email is commonly referred to as “spam.” Hormel Foods, LLC has taken a position on the use of the word “spam” to describe unsolicited commercial email. SPAM.com, Privacy Policy, http://www.spam.com/legal/spam (last visited Feb. 9, 2009).

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proliferation of unsolicited commercial email.6 Another example of a legitimate use of discriminatory technology is wire speed virus detection and removal.7 Networking hardware is now capable of removing viruses and other malicious software from email attachments and other network traffic without slowing down the delivery of non-malicious data.8 There are several reasons for these practices. First, service providers wish to differentiate themselves from other providers by offering a safer network for their customers by shielding them from presumably unwanted and malicious data.9 Second, service providers wish to increase available bandwidth on their network by removing “useless” data from the network.10 Finally, network administrators recognize that an entire network of computers can be affected by the actions of one computer on the network.11 Malicious code on a networked computer, such as a virus or a worm, may slow or halt network traffic and may impose serious costs on the industry.12 The costs associated with customer service calls are enough to encourage a network provider to implement active network management tools.13 Although network neutrality proponents claim that they are not suggesting that spam or viruses are worthy of protecting with network neutrality principles,14 most proposed “network neutrality” legislation would allow users to decide what is able to pass through their network while

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Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. § 7701 (2004); see generally Federal Trade Commission, Spam, http://www.ftc.gov/spam (last visited Feb. 9, 2009) (providing more information on unsolicited commercial email and the law). Juniper Networks and other providers offer switches with stateful packet inspection technology, allowing them to protect network resources and users from spyware, viruses, and other malware. See Juniper Networks, Intrustion Detection and Prevention (IDP), http://www.juniper.net/products_and_services (follow “Intrusion Prevention Portfolio” hyperlink; then follow “Intrusion Detection and Prevention (IDP)” hyperlink) (last visited Feb. 9, 2009). E.g., Soft32.com, Microsoft Malicious Software Removal Tool, http://www.soft32.com/download_121631.html (last visited Feb. 9, 2009). Comcast, for example, has offered free virus scanning, privacy, and firewall software for its customers. Comcast, Security, http://www.comcast.net/Security/SecSuiteSSO/ (last visited Feb. 9, 2009). Comcast, Ethernet Private Line, http://www.comcast.com/corporate/business/large/privateline.html?fss=bandwidth (last visited Feb. 16, 2009) (showing available bandwidth and removal). Comcast, Ethernet Private Line, http://business.comcast.com/ethernet/private-line.aspx (last visited Feb. 16, 2009) (showing Comcast‟s network security features). Hal Berghel, The Code Red Worm - Malicious Software Knows No Bounds, 44 COMM. OF THE ACM 15, 19 (2001) (illustrating how the Love Bug, Code Red, and Melissa worms cost society an estimated $12.5 billion). See e.g., ASSOCIATION OF SUPPORT PROFESSIONALS, TECHNICAL SUPPORT COST RATIOS (2004). See Lisa Phifer, 2006 MSSP Survey, Part 6: Managed Anti-Spam and Content Filtering, ISP PLANET, Dec. 22, 2006, http://www.isp-planet.com/technology/mssp/2006/ mssp6a.html.

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making legitimate uses of technology illegal.15 For example, some proposed legislation requires that customers of ISPs be allowed to turn off virus detection, spam removal, and other safeguards while denying network providers the ability to prioritize traffic in order to ensure a minimum level of service.16 This ignores the ISP‟s property interest in the network, as well as the interest that the network provider and other users have in keeping unwanted, and possibly dangerous, traffic to a minimum.17 Some ISPs create doubt in the minds of content providers, causing network neutrality proponents to scramble for legislation before ISPs are given a chance to discriminate.18 One Canadian ISP deemed Skype and other voice over IP providers (hereinafter “VoIP”) “parasitic,” showing the ideological split between network providers and providers of content and services that rely on networks.19 Former SBC CEO Ed Whitacre, further inflamed network neutrality proponents: How do you think [Vonage, MSN, and others] are going to get customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free [sic], but I ain‟t [sic] going to let them do that because we have spent this capital and we have to have a return on it.20 15

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See Internet Freedom and Nondiscrimination Act, H.R. 5417, 109th Cong. (2006); Internet Nondiscrimination Act, S. 2360, 109th Cong. (2006); Internet Freedom and Preservation Act, S. 2917, 109th Cong. (2006). The Internet Nondiscrimination Act and the Internet Freedom and Preservation Act both require service providers to provide a mechanism allowing customers the ability to disable protective measures. See S. 2360; S. 2917. These requirements assume that the user of a network should have more control over the allowance of malicious software, viruses, spam, worms, and other malware then the owner of the network. See S. 2360; S. 2917. See Adam D. Thierer, "Net Neutrality” Digital Discrimination of Regulatory Gamesmanship in Cyberspace?, POLICY ANALYSIS, Jan. 12, 2004, at 17, available at http://www.cato.org/pubs/ pas/pa507.pdf. Thierer argues that net neutrality is like telling network owners “your networks are yours in name only, and the larger community of Internet users – through the FCC or other regulatory bodies – will be free to set the parameters of how your infrastructure will be used in the future.” Id. Michael Geist, The Search for Net Neutrality, Dec. 18, 2005, http://www.michaelgeist.ca/index.php?option=com_content&task=view&id=1040. Id. Patricia O‟Connell, At SBC, It’s All About “Scale and Scope,” BUSINESS WEEK, Nov. 7, 2005, available at http://www.businessweek.com/print/magazine/content/05_45/b3958092.htm?chan=gl. Although Whitacre‟s comments were easily combated by the obvious argument that customers pay the ISP for bandwidth, while the ISP pays the network provider and the content provider pays their own network provider (ensuring compensation for network providers), there is a deeper issue here. If network operators are required by law to ensure that the speed of a packet to every destination on the Internet is equal, as some proposed legislation would have it, then does the content provider have a duty to ensure that their bandwidth is sufficient, or can they rely on the service provider to make up the difference? See generally H.R. 5417; S. 2360; S. 2917. While this is an extreme

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Whitacre‟s comment caused uproar among network neutrality proponents and content providers, and likely caused service providers to groan.21 Meanwhile, savetheinternet.com, a strong supporter of network neutrality legislation, would have consumers believe that the Internet as we know it will come to a grinding halt if some sort of legislation is not passed.22 II.

PUBLIC POLICY INTERESTS

To create appropriate law to govern the Internet one must first identify the parties and their respective interests. A few key interests to consider include: Internet Service Providers  Want to be paid for the use of their networks.  Want to manage their networks according to their business plan.  Want to provide a user experience that promotes customer retention. Content / Application Providers  Want their content to be available to consumers.  Do not want to pay “extra” tolls to ISPs to ensure content delivery.  Want to provide new technologies that make use of the growing amount of bandwidth available to consumers.  Want to avoid being “cut off” from consumers of their services because the network provider has entered the market as a competitor.  Want to keep other competing content providers from buying an upper hand. Consumers  Want access to all legal websites and other services available via the Internet.  Want to use cutting edge network based applications, regardless of source.  Want to be able to connect devices to the Internet to enhance their Internet experience.

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argument, it shows that the proposed legislation is drafted with the interest of only one party in mind. Id. Also consider the fact that all current proposed legislation requires that all content providers are given the same treatment as affiliates. Id. This may mean that ISPs which have content stored on their network have to provide space for other content providers to store content. If this is the case, what is the point of being an affiliate? Arshad Mohammad, SBC Head Ignites Debate, WASH. POST, Nov. 4, 2005, at D01. Save the Internet.com, Frequently Asked Questions, http://www.savetheinternet.com/= faq (last visited Feb. 12, 2009).

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Because consumers have failed to voice a strong opinion, leaving well enough alone, others have been able to speak, supposedly, on their behalf. Both sides, after all, have claimed to be the one giving the consumers what they want. But, the true interests of the consumer are secondary to those funding the fight, since most of the factors for content and service providers are driven by money. Phrases like “net neutrality” tend to suggest to consumers that the debate is about their ability to have “unfettered access” to the websites they love.23 Liberal use of the words “discrimination” and “freedom” are also used to set the semantic stage.24 As Adam Thierer stated, “sometimes the word „discrimination‟ gets thrown around in a very cavalier manner by parties seeking to enlist the support of the government in a dispute in which it doesn‟t belong.”25 III.

INTERNET TRAFFIC

To determine what is in the best interest of public policy, those considering legislation in the Internet space need to understand the effects of the legislation. This requires a firm understanding of basic Internet architecture. The Internet is a global network of networks.26 Many people view the Internet as a destination which is accessed through a pathway provided by an ISP.27 However, the Internet is more like a series of roads and highways, both public and private, which are connected to become part of the same system. If a person owns a piece of land, he may create a private road system; however his private land is not part of the greater system until his private road system is connected to the public road system. Once the two are connected, they are part of the same larger transportation system. Any point on the system may be both a source and a destination for traffic. Although this analogy is not perfect, it illustrates that the Internet itself is not a destination, but rather, an infrastructure that facilitates interconnection between destinations. Private home networks, networks connecting machines at businesses, and content provider networks, such as Yahoo!‟s network, are examples of networks that benefit from interconnection.28 Until they are interconnected, these networks are only capable of sending requests for information within 23

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See Posting of amacd to http://news.zdnet.com/2100-9588_226081882.htmlhttp://news.zdnet.com/5208-95880.html?forumID=1&threadID=21892&messageID=416797&start=-1 (June 6, 2006) (discussing the “propagandist framing of terms such as „net neutrality‟ and „death tax‟.”). See Thierer, supra note 17, at 2. Id. See Jeff Tyson, How Stuff Works, How the Internet Infrastructure Works, http://www.howstuffworks.com/internet-infrastructure.htm/printable (last visited Feb. 12, 2009). Id. Id.

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their own respective local networks.29 Likewise, they are only capable of receiving and honoring requests that originate from their own respective local networks.30 If these networks decide to interconnect with one another, information may be shared between them, subject to the will of each private network operator.31 The Internet consists of many such networks that are interconnected, but the means of interconnection is less direct than, for example, a few neighbors deciding to run cables out of their windows to the business or residence next door. Broadband ISPs build networks capable of handling extremely large amounts of data, and provide access to their networks for a price. These service providers may in turn buy access to other larger networks, known as Tier 1 ISPs.32 Tier 1 ISPs, such as AT&T, Verizon Business, and Level 3, interconnect with one another via private peering or Network Access Points (NAPs), also known as Internet Exchanges (IXs).33 Private peering and IXs are spread throughout the world, but the nature of these points, exchanging traffic between competing Tier 1 providers, makes them the logical core of the Internet, if there is one.34 Everyone who accesses the Internet, which essentially makes them a part of the Internet, is connected at least indirectly to a Tier 1 ISP. 35 For example, a customer using Comcast High Speed Internet via a cable modem may connect to the Comcast network, which, in turn, may connect to the AT&T network as a Tier 1 provider. Yahoo!, on the other hand, may connect directly to Level 3, a Tier 1 ISP. Therefore, a cable modem user that wishes to access content residing on Yahoo!‟s network, such as world news or web-based email, may connect to the Comcast network. The Comcast network would connect to AT&T‟s network; AT&T‟s network would connect to the Level 3 network via private peering or IXs; and the Level 3

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Id. Id. Id. See Rob Frieden, Revenge of the Bellheads: How the Netheads Lost Control of the Internet (Oct. 2001) (working paper, Pa State Univ. Coll of Communications and Dickinson Sch. of Law), available at http://ssrn.com/abstract=290121. Currently, most Internet traffic in the U.S. travels through private peering arrangements, since the fall of public Network Access Points (NAPs), such as Metropolitan Area Ethernet (MAE-East), and the Sprint NAP. Id. This market driven traffic exchanging has allowed broadband ISPs to keep up with the bandwidth demands of packet-hungry applications such as video, VoIP, and file sharing technology. Id. Several years ago, high speeds were impossible outside of a given network due to the congestion that existed at the NAPs. Id. The workarounds at the time were to pipe in affiliated content through a private connection and distribute it over the ISP‟s network. Id. See O. Heckmann, et al., Optimizing Interconnection Policies, 46.1 COMPUT. NETW. 19 Mar. 31, 2004, http://www.sciencedirect.com (under “subject” select “Computer Networks” then select Volume 46, Issue 1) (discussing peering). See Tyson, supra note 26. See Frieden, supra note 32.

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network would connect to Yahoo!‟s network.36 (See Fig. 1). Although each network is likely connected to many more networks, this diagram is simplified in order to illustrate a possible network path from a user to a content provider.

IV.

IS LEGISLATION REQUIRED?

Proponents of network neutrality say that legislation is required to keep the Internet open and free from discrimination.37 Those proponents suggest that neutrality is the “guiding principle that preserves the free and open Internet.”38 There are many different opinions regarding network neutrality, and even people on the same side of the debate often interpret the issue quite differently from one another.39 Some proponents of network neutrality say that, without legislation, network giants will disable or cripple access to certain websites unless they pay a “tax.”40 These proponents also contend that prioritizing traffic for those willing to pay for faster service will 36

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Although this scenario may be accurate, it is meant to be hypothetical and is presented with company names in order to facilitate understanding of the players involved in such a network transaction. Save The Internet.com, Frequently Asked Questions, http://www.savetheinternet.com/= faq (last visited Feb. 12, 2009). Id. For example, some proponents of legislation for network neutrality principles are convinced that packet prioritization is evil, while others feel that prioritization is fine if it is not based on the source of the traffic. Anush Yegyazarian and Tom Spring, Should the Internet Play Favorites?, WASH. POST, Mar. 25, 2006. Save The Internet.com, supra note 37.

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create a “fast lane” for those with money, leaving all others to travel the Internet on a “winding dirt road.”41 They claim that “[ISPs] want to be Internet gatekeepers, deciding which web sites go fast or slow and which won't load at all.”42 On the other extreme are those who claim that content providers simply want to use broadband provider pipes without paying for them.43 These extremes do not really represent what the network neutrality debate is about, and simply create polarizing straw man arguments. However, the legislation that has been proposed by some members of Congress would indeed have the effect of making network providers responsible for ensuring that their customers have a certain level of service and speed to destinations on networks which they have no control over.44 The Internet Freedom Preservation Act would have required that a broadband provider: [E]nable any content, application, or service available via the Internet to be offered, provided, or posted on a basis that … is at least equivalent to the access, speed, quality of service, and bandwidth that such broadband service provider provides to affiliated content, applications, or services made available via the public Internet into the network of such broadband service provider.45 This would force ISPs to ensure that all content on the Internet is available to users at the same speed as content provided by affiliates of the ISP. There is no mention of a requirement for content providers to ensure that adequate bandwidth is purchased to deliver content to the edge of the broadband provider‟s network. For example, if Website A, a popular high-bandwidth streaming video site, purchased only ten percent of the bandwidth required to deliver the content requested by its users at the speed necessary to compete with Website B, another streaming video content provider affiliated with a particular broadband service provider, by the language of the Internet Freedom Preservation Act, the broadband service provider would have to either (1) provide bandwidth to make up the difference in speed, or (2) lower the delivery speed of affiliated content to match that of the non-affiliated site.46 But, there is also the possibility that Website C, a different nonaffiliated site that offers streaming video, has provided more than enough 41 42 43 44 45 46

Id. Id. See O'Connell, supra note 20. See Internet Freedom Preservation Act, S. 2917, 109th Cong. (2006). Id. at § 12(a)(4)(B). Id. at § 12(a)(4). This section is written in a way that requires broadband ISPs to actually enable higher network transmission speeds for content providers. This goes beyond mere neutrality, which would only require that ISPs not interfere with the priority of packets based on source.

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bandwidth to handle the requests. If Website B was throttled back to the same speed as Website A to comply with § (a)(4)(B), Website C would deliver content at a higher rate of speed than the affiliated content, since § (a)(1)47 would keep the ISP from lowering the speed of Website C to match Websites A‟s and B‟s speed.48 However, a middle ground exists. Many in the debate, including ISPs, seem to support the idea that ISPs should not block or slow access to content in the name of competition. In other words, if a broadband ISP offers its own telephone service, it should not block third party VoIP providers. But, some network providers have done just that and have blocked VoIP across their networks.49 This was met with swift attention from the FCC, resulting in a consent decree and the reopening of those ports.50 The dividing line among the middle ground seems to be prioritization of packets,51 or traffic shaping technology. Although network operators feel that it is within their right to manage their network in a way that makes business sense and provides the best overall experience possible, content providers might contend that prioritization of packets based on a business model violates the fundamental values of the Internet.52 Others may recognize a tighter middle ground, agreeing that prioritization schemes are capable of enabling technologies, such as VoIP, without hurting other traffic that is less vulnerable to packet loss, such as email and web browsing.53 In this group, some may still believe legislation is necessary to ensure that 47

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“Duty of Broadband Service Providers – With respect to any broadband service offered to the public, each broadband service providers shall not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet.” Id. at § 12(a)(1). Id. See Michael Geist, supra note 18 (discussing the comments of Canadian ISP Videotron and the likelihood of port blocking and discussing Canadian cable provider and broadband ISP Shaw‟s plans to offer prioritization of VoIP traffic for a fee, possibly leading to the waiver of that fee for Shaw voice subscribers, effectively charging users who use a third party system). See Madison River Communications, LLC, 20 F.C.C.R. 4295, 4297 (Mar. 3, 2005) (consent decree). In Madison River, VoIP ports were disabled by an ISP, but the FCC took swift action and started an investigation. Id. The investigation lasted less than a month before the FCC entered into a consent decree, accepting $15,000 for its troubles while Madison River re-opened VoIP ports. Id. Info. Sciences Inst., Univ. S. Cal., Internet Protocol, DARPA Internet Program Protocol Specification, RFC 791, Sept. 1981, available at http://www.javvin.com/protocol/rfc791.pdf (discussing how packets are essentially containers for data). See David L. Cohen, Statement at the Federal Communications Commission Public en banc Hearing on “Broadband Network Management Practices,” WC Doc. No. 07-52, (Feb. 25, 2008), available at http://www.fcc.gov/broadband_network_management/022508/cohen.pdf. See Ryan Kim, FCC Hears Net Neutrality Arguments at Stanford, S.F. CHRONICLE, Apr. 18, 2008.

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content is only prioritized based on application and not based on the source or destination of the traffic, i.e., content provider. V.

PEERING, PRIORITIZATION AND TRAFFIC SHAPING

Now that I have laid down the basics of Internet traffic and explored some preliminary definitions of the problem at hand, this section will introduce some new players and situations into the illustrations. This will help define the core problems that network neutrality proponents seek to address and define the actual public policy at stake. A.

Hypothetical A – Is Traffic Shaping Square?

Suppose Tier 1 Provider A54 offers a 50% discount to ISP, a broadband ISP, on high bandwidth OC-x circuits,55 if ISP submits to Tier 1 Provider A‟s packet prioritization scheme. ISP accepts the offer and Tier 1 Provider A makes up for the price difference by creating traffic shaping agreements with popular websites,56 which places them at the highest priority possible. (See Fig.2)

If this occurs, competitors of the companies that are paying for priority treatment will be concerned about losing a share of their respective

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Common Tier 1 providers include AT&T, Verizon, and Level 3. “OC” stands for Optical Carrier, and refers to the speed of a fiber-optic network connection. Webopedia, What is OC?, http://www.webopedia.com/TERM/O/OC.html (last visited Feb. 12, 2009). Websites for companies Amazon, CNN, and YouTube are a good example.

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market for eyeballs57 that they can advertise or sell to. However, the broadband ISP is not necessarily required to upgrade the amount of bandwidth available to its users. The argument that any additional bandwidth provided to users needs to be allocated evenly, or “neutrally” among content providers lacks merit when the alternative is considered. A broadband ISP may simply refuse to add bandwidth, keeping the pie smaller, but still net neutral.58 An argument that customers would not stand for this would show that there is sufficient competition in the marketplace to cause customers to choose a different ISP.59 If traffic shaping technology is applied only to current bandwidth, as opposed to additional bandwidth, an inequity may be seen when compared with the current state of things. If there is so much priority traffic that only priority traffic gets through, then the effect would be to block sites that do not pay for priority. This is an unlikely scenario for several reasons. First, network operators are slow to make comprehensive, sweeping changes to their networks without purchasing the additional bandwidth to make the change unnoticeable to customers for fear of losing customers who notice a degradation in service.60 This makes financial sense, because the acquisition cost of a broadband customer eats up the profit gained from that customer for some time after acquisition.61 The cost and frustration of fielding customer service calls related to a noticeable change in the service is also a deterrent.62 Second, speed of service has become a way to differentiate providers from one another in today‟s broadband market.63 To keep up with the demands of Internet users, broadband ISPs are more likely to continue upgrading and 57

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“Eyeballs” is a slang term used in marketing, which represents the number of people viewing content or advertising. Netlingo, Eyeballs, http://www.netlingo.com/dictionary. php (follow “e” hyperlink; then follow “eyeballs” hyperlink under “start here”) (last visited Oct. 17, 2008). This argument was made when the regulation of DSL was first discussed and the argument failed. The net neutrality argument is different, however, because the benefit of prioritization of traffic is substantially lower for the network owner than it is for a content provider. With DSL, there was an obvious new revenue stream (from Internet access subscription fees) that would drive the Incumbent Local Exchange Carriers (ILECs) such as Verizon to market anyway. Here, if there is no more money to be made, then complete neutrality would be better for business than selective prioritization. See Kevin Fayle, Appeals Court Rubber Stamps FCC's DSL (De)regulation, THE REGISTER, Oct. 24, 2007, http://www.theregister.co.uk/2007/10/24/fcc_dsl_regulation_appeal_ruling/. See Angele A. Gilroy, Net Neutrality: Background and Issues, CRS Report for Congress, at 4 (May 16, 2006), available at http://www.fas.org/index.html (under “search” type Angele A. Gilroy; follow “Net Neutrality: Background and Issues” hyperlink) This observation is based on the author‟s personal experience. See Mark Mahaney, Netflix - Subscriber Acquisition Costs and Churn, SEEKING ALPHA, Dec. 22, 2005, http://seekingalpha.com/article/5258-netflix-subscriber-acquisition -costsand-churn-nflx. See ASSOCIATION OF SUPPORT PROFESSIONALS, TECHNICAL SUPPORT COST RATIOS (2004). Comcast is currently offering speeds of 6 to 12 Mbps to its customers. See Comcast, High-Speed Internet, http://www.comcast.com/Corporate/Learn/HighSpeedInternet/high speedinternet.html?lid=2LearnHSI&pos=Nav (last visited Feb. 25, 2009).

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adding new bandwidth.64 If cable modem users feel that they are not receiving the premium service that they are paying for, they are likely to switch to the less expensive and usually slower DSL service.65 Although not everyone has a choice, the new numbers of deployment are nearing 100% of homes passed for both cable and telephone companies in the United States.66 Another issue is that there are multiple network operators involved. Tier 1 Provider A is a network service provider for an ISP. The ISP has an interest in managing its network, and prioritization at this level is often ignored.67 Although they are not directly providing broadband services to the public in this particular scenario, the effect of traffic prioritization across the Tier 1 Provider A network is similar to the effect of prioritizing traffic across any given broadband network. Because end-to-end prioritization is difficult to achieve,68 prioritization schemes will most likely end at the edge of the network on which they are implemented. However, if a particular content or application provider is a customer of the same Tier 1 provider as the broadband service provider, Internet traffic traveling between the customer and content provider may possibly never pass through more than one Tier 1 provider, and there may be a greater advantage to prioritizing traffic through that Tier 1 provider. Therefore, any public policy regarding traffic shaping technology must consider the role of all network providers involved, not just broadband ISPs. B.

Hypothetical B – Losing Your Voice

Suppose the ISP in Fig. 3, a broadband ISP, offers Internet service over coaxial cable lines. The ISP is the only player in the cable modem market, and offers higher speeds than DSL, WiFi, or dial-up access in the

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See Keith Reed, Comcast Upgrade Speeds up Downloads, BOSTON GLOBE, June 2, 2006, available at http://www.boston.com/business/technologyarticles/2006/06/02/Comcast_upgrade_speed s_up_downloads. High Speed Internet, DSL vs. Cable, http://high-speed-internet-access-guide.com/dsl-vscable.html (last visited Feb. 15, 2009). See Competitive Analysis of DSL and Cable Modems, COMMC‟N MEDIA ANALYSIS GROUP QUARTERLY ANALSYS (Pike & Fischer, Silver Spring, MD.), 4th Quarter 2004, available at http://www.broadband-daily.com/crossIA.asp. These are 2004 deployment numbers and the numbers have increased since. This observation is based on the author‟s personal experience. End-to-end prioritization is difficult to achieve because all networks from one end to another must agree to carry the prioritization scheme in order for the scheme to work, and these networks are often owned by different entities with competing interests. Although end-to-end prioritization is difficult to achieve, there are instances in which it may occur. If a content provider can ensure prioritization by buying bandwidth from a provider that the ISP buys from, they may be able to make a deal with the provider to carry the prioritization scheme.

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area.69 The ISP exchanges traffic with the general Internet through the use of leased lines from network providers like hypothetical Provider E, a Tier 1 provider,70 but manages the connections up to the Provider E backbone, where prioritization schemes are lost. VoIP Provider offers VoIP service and wishes to maintain a higher quality of service for its own VoIP traffic than other types of traffic, such as email and web browsing. The VoIP service requires that the user have access to the Internet via an IP network such as the one provided by ISP. (See Fig.3)

Many feel that prioritization schemes are not inherently against public policy, but some try to solve what they consider to be a fairness problem by setting boundaries for the use of prioritization technology, and call for legislation requiring that prioritization be based only on traffic type. The issue in the hypothetical situation above is whether or not source based traffic shaping technology is inherently against public policy. The danger of restricting a particular use of technology is that legitimate reasons may exist to use technology in the prohibited manner.71 This dilemma often comes into play during the development of new technology. For example, a company may be working on the next “killer application” for the Internet, but it may require prioritized bandwidth because it is susceptible to packet loss. However, broadband ISPs may not agree with the market value of the application, and may therefore be unwilling to 69

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See Comcast, Prices and Choose Packages, https://www.comcast.com/Localization/Localize.ashx?Referer=%2fShop%2fBuyflow%2 fDefault.ashx%3farea%3d6%26SourcePage%3dInternet (last visited Feb. 25, 2009). Common Tier 1 providers include AT&T, Verizon, and Level 3. See Gilroy, supra note 59.

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implement changes to its network to accommodate the necessary prioritization scheme, because it is a privately owned network. If the ISP is able to charge for its efforts, and the developers are willing to risk a cash investment in the prioritization scheme for implementation and increased network capacity costs, then those who are willing to “put their money where their mouth is” will drive innovation while respecting the rights and boundaries of network operators and users. But, if the broadband provider is required to offer the same scheme to all other developers on the same type of application, then the ISP may refrain based on a possible administrative nightmare. Restraint may lead to less innovation, or applications that are slow to market, since some applications will have to wait until neutral network bandwidth meets the minimum requirements for the application. The better solution is to let the market sort out those who have applications worth prioritizing without imposing an undue burden on the network owner. Still, some may continue to argue that if traffic shaping is used to prioritize packets of a particular type, such as VoIP, then all packets of that type should be prioritized. Such a policy would hurt the network operator that may wish to prioritize its own traffic. This is the equivalent of saying, “If you want your own VoIP packets to travel in a fast lane, you need to let our VoIP packets use the fast lane as well, at no cost to us.” Under this policy, it would not be in the interests of any VoIP provider to be the first to contract for priority service, because this would effectively open the same rights to their competitors for free. Additionally, broadband service providers are much closer to the home, so their packets do not need to traverse the Internet to reach the point at which the packets are converted to work on the general telephone network. This leaves the broadband provider with little incentive to allow prioritization of VoIP traffic, because the broadband provider benefits much less from the prioritization than other providers by virtue of their ownership of the network. The best way to cure this stalemate is to allow other providers or users to purchase prioritization as they see the value. Furthermore, this approach sparks additional innovation, since there will be motivation to create new technology that is less affected by packet loss.72 The result of this policy becomes clear when the broadband service provider is also the Incumbent Local Exchange Carrier (“ILEC”), or telephone company. Because they would be slow to invest in VoIP technology, offering any prioritization of VoIP traffic may seem ridiculous when considering the plans of their telephone service business unit. 72

As a veteran web developer, I used to negotiate bandwidth requirements and loading time with clients when creating websites. I continued to optimize web pages for fast loading and efficient bandwidth use, but clients simply assumed that websites would load quickly because of the increasing number of Internet users with broadband Internet access. Increasing network speeds took optimization off the table. Many web developers have become lazy and less experienced web developers often skip optimization altogether. When bandwidth has no cost to the application provider, there is little incentive to innovate in a way that saves bandwidth.

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Ironically, prioritization of VoIP traffic may be more important on DSLbased broadband connections due to the lower available bandwidth. If the market allowed a small surcharge to the user for VoIP prioritization, however, a customer who is satisfied with browsing the web at the slower speeds of a DSL connection may be able to ensure a quality VoIP connection without paying for more expensive cable modem service. This may help to level the playing field between cable and DSL, as well as between VoIP providers and the ILECs. There are other anticipated scenarios that seem fundamentally wrong. For example, what if a broadband provider affirmatively slowed down or halted traffic to other VoIP services in order to sell their prioritization services? This scenario became a reality when Madison River, an ISP, blocked ports used for VoIP traffic.73 C.

Hypothetical C – Over the Pond in the Fast Lane

ISP offers high-speed Internet access over coaxial cable lines. European Content Provider offers video services over IP with a strong market in Europe, but the connection is insufficient to serve the U.S. market. Content Provider can buy more bandwidth from its current provider, but wants to target customers with a high speed connection since the video files are large. Content Provider strikes a private peering agreement with ISP to connect an OC-3, a fiber-optic leased line, directly to ISP‟s backbone from the small Content Provider network, providing a 155 Mbps private pipeline.74 This allows a “fast lane” for ISP users seeking Content Provider‟s traffic.75 (See Fig. 4)

73

74

75

See Madison River Communications, LLC, 20 F.C.C.R. 4295, 4297 (Mar. 3, 2005) (consent decree). See generally Christopher S. Yoo, Network Neutrality and the Economics of Congestion, 94 GEO. L.J. 1847, 1862-63 (2006) (outlining the historical progression of Internet usage from simple email programs to high volume file-sharing and other high bandwidth usage programs). See generally Douglas A. Haas, Comment, The Never-Was-Neutral Net and Why Informed End Users Can End the Net Neutrality Debates, 22 BERKELY TECH L.J. 1565, 1579-82 (2007) (describing how Sprint, UUNET, Advanced Network Services, BBN Planet, MCI, and AT&T entered reciprocal peering agreements to form the backbone of the Internet as high bandwidth content overloaded individual private networks).

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This sort of private peering arrangement is motivated by different purposes than mutual peering by Tier 1 network operators.76 Tier 1 network operators privately peer with one another to overcome traffic congestion at IXs and public peering facilities.77 Here, we have a content provider that wants to pay for a network connection that directly links the Content Provider network to the network of a broadband service provider. The advantage of this scenario is twofold. Content Provider is able to deliver high quality content to a target audience with the bandwidth to take advantage of the content, and ISP is able to relieve its uplinks and the public Internet of bandwidth that would have been consumed by requests for Content Provider‟s content. Moreover, bandwidth to competing sites will not only be unhurt, but will benefit from the newly freed bandwidth due to the diversion of traffic to the private network created in accordance with the private peering arrangement. In reality, direct links are costly and unconsumed bandwidth may go to waste.78 A content provider could instead work with a content distribution network or connect to an IX that already has a relationship with the broadband service providers they wish to target.79 This strategic positioning

76 77

78 79

See Yoo, supra note 74, at 1871. See AT&T, AT&T Global IP Network Settlement Free Peering Policy, available at http://www.att.com/peering (last visited Feb. 25, 2009). See Yoo, supra note 74, at 1871. See Equinix, Equinix Peering Portal, http://www.equinix.com/peering (last visited Oct. 29, 2008).

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of network resources does not seem to bother some of the corporations that are adamant about net neutrality.80 This hypothetical illustrates that by virtue of strategic network presence at many of these private peering points and content distribution networks, those with the resources can buy performance, even if content is not prioritized.81 As Lawrence Lessig stated at the Gilder-Forbes Telecom Summit in October, 2006, “There‟s of course an advantage that eBay and Google have because they have very fast caching servers located all over the world. So their ability to serve content is better than their competitors.”82 Thus, even on a net neutral Internet, some content providers are more equal than others.83 This is not to say that neutral content delivery does not solve the problem, but rather, that the nature of the Internet rewards individuals and organizations in proportion to their investment and planning. D.

Hypothetical D – Peer to Peer

Electric Company offers high-speed Internet access over electricity lines at asynchronous speeds of 2.0 Mbps. Electric Company finds a way to increase the capacity of the network for their customers to 5.0 Mbps, and plans to implement the change as soon as they complete a traffic analysis. Electric Company discovers that a large portion of the traffic on their network is Peer to Peer Application traffic coming from a very small percentage of their users. Electric Company, fearing that Peer to Peer Application traffic will affect the experience of other users on the network, decides to limit the bandwidth available for Peer to Peer Application clients to 3 Mbps, even though the current maximum bandwidth available is 2Mbps. Electric Company, months later, implements the new technology, increasing the network speed to 5 Mbps, while leaving the network management policy in place for Peer to Peer Application. Should Electric Company be able to implement an application-based bandwidth limit of 3 Mbps on a network with a maximum available bandwidth of 2 Mbps? This hypothetical demonstrates with a somewhat absurd hypothetical that, as a matter of public policy, we are concerned about 80

81

82 83

See e.g. Comcast, Comcast FAQ, http://www.comcast.com/Customers/FAQ/FaqDetails. ashx?Id=4390 (last visited Oct. 29, 2008). See Hands Off the Internet, Lessig is More, HANDS OFF THE INTERNET, Oct. 23, 2006, http://www.handsoff.org/blog/tiered-service/lessig-is-more . Id. Id. But c.f. Letter from Tim Wu, Associate Professor, Univ. of Virginia Sch. of Law, and Lawrence Lessig, Professor of Law, Stanford Law Sch., to Marlene C. Dortch, Secretary FCC (Aug. 22, 2003), available at http://freepress.net/files.wu_lessig_fcc.pdf. (discussing ex parte the current policy of the FCC in regulating the Internet to bolster competition). The beneficiaries of net neutrality are supposed to be the “little guys” that do not have the money to compete. Id. But, in a net neutral world, the content providers with the means to build data centers logically close to the broadband users have an advantage; unless, that is, we accept the idea that the network operators have to actually provide the infrastructure to level the playing field for the have-nots. Id.

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the effect of network management and traffic shaping, rather than the traffic shaping technology itself. 84 Electric Company knew that the available bandwidth would soon increase, so it is obvious that Electric Company meant to implement a policy that only allowed a particular percentage of bandwidth to be used for Peer to Peer Application traffic. Electric Company users will likely be happy with the increased bandwidth, but unhappy if they find out that their favorite application cannot take full advantage of the network‟s new capabilities. Furthermore, customers who use Peer to Peer Application infrequently are being rate-limited simply because of the application they are using. Tim Wu, a respected professor at Columbia Law School who studies net neutrality, feels it is helpful to look at other networks implicitly built on a neutrality theory when thinking about neutrality on the Internet.85 On his website, Wu states: The electric grid does not care if you plug in a toaster, an iron, or a computer. Consequently it has survived and supported giant waves of innovation in the appliance market. The electric grid worked for the radios of the 1930s works for the flat screen TVs of the 2000s. For that reason the electric grid is a model of a neutral, innovation-driving network.86 Setting aside the fact that Electric Company is delivering Internet access via the electric grid, we can see the main problem with this hypothetical is the associated business model. The electric grid, as well as the water network and other networks implicitly built on neutrality are usually metered.87 Although a person may plug an LED nightlight, toaster, or plasma television into the electric grid and expect it to function properly, that person does not assume that 24 hours of plasma television usage will cost the same price as browning two pieces of toast, or even running the LED nightlight for the same period of time. On the contrary, consumers expect to pay more when they use more resources such as electricity. The business model of consumer targeted ISPs, however, is built on fixed pricing.88 If ISPs charged users based on the number of bytes downloaded, then the problem raised in this hypothetical would likely never arise. ISPs 84 85

86 87

88

Id. Tim Wu, Net Neutrality FAQ, http://www.timwu.org/network_neutrality.html (last visited Feb. 15, 2009). Id. See Brett M. Frischmann, An Economic Theory of Infrastructure and Commons Management, 89 MINN L. REV. 917, 957-59 (discussing infrastructure from a demand perspective, and the strength and substance of arguments for maintaining certain infrastructure as “open access.”). See Yoo, supra note 74, at 1853-54.

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would encourage users to download as much as possible, through any means, in order to collect more money from users in return for the usage. In fact in that scenario, it is hard to see why Electric Company would limit the bandwidth available to Peer to Peer Application traffic, and it is easy to see why an electric company would want to take network management measures to reduce usage if it were to offer an unmetered electricity plan. That is not to say that forcing ISPs into a metered pricing plan is the solution, rather, this hypothetical simply illustrates that some network management issues are related to the fixed-price services consumers have come to expect and enjoy.89 VI.

CURRENT LAW

The decision in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs.90 resulted in classifying cable modem based Internet service as a data service, relieving it from the requirements imposed upon common carriers. 91 Shortly thereafter, the FCC deregulated DSL, reclassifying it as an information service.92 As common carriers, cable and DSL providers would have been required to “carry for all people indifferently.”93 Brand X and the subsequent deregulation of DSL left the Internet community with an expectation that removing cable and DSL providers from common carrier status would invite abuse.94 Many speculated on how the narrowing of competition would affect the marketplace, and network neutrality became a key subject of debate.95 Although the FCC did not adopt rules to ensure network neutrality, it issued the following policy statement to four principles “to encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet: 1. consumers are entitled to access the lawful Internet content of their choice; 2. consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; 3. consumers are entitled to connect their choice of legal devices that do not harm the network; and

89 90 91 92

93

94 95

Id. at 1863-66. 545 U.S. 967 (2005). See id. See Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 F.C.C.R. 14853, 14862-98 (2005). Nat‟l Ass‟n of Regulatory Util. Comm‟rs v. F.C.C., 533 F.2d 601, 608 (D.C. Cir. 1976) (quoting Semon v. Royal Indem. Co., 279 F.2d 737, 739 (5th Cir. 1960)). See Frischmann, supra note 87, at 1013-16. See Jerry Ellig & Alastair Walling, Regulatory Status of VoIP in The Post-Brand X World, 23 SANTA CLARA COMPUTER & HIGH TECH L.J. 89, 121 (2006).

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4. consumers are entitled to competition among network providers, application and service providers, and content providers.”96 Some argue that the policy statement has no teeth, but it is a clear signal to cable and DSL broadband service providers that the FCC is aware of the ability of broadband providers to abuse their newfound freedom.97 However, the FCC can change direction with any given administration; therefore, any outcome resulting from enforcement of this policy may be difficult to predict. Madison River, an ISP, blocked ports used by Vonage for VoIP service, causing the service to fail.98 The FCC initiated an investigation into Madison River‟s actions on February 11, 2005, but entered into a consent decree on March 3, 2005.99 Madison River paid $15,000 to the FCC and reopened the ports for use with Vonage VoIP service.100 Although Madison River makes it clear that the FCC believes it has the power to regulate this behavior, some felt that an actual ruling would have been beneficial in defining the limits for network providers and ISPs.101 Additionally, the FCC cited compliance with § 201(b) of the Communications Act of 1934, as amended,102 as the basis for the initial investigation, but § 201(b) applies to telecommunications services and not to data services.103 This, and the fact that the Madison River investigation was initiated and decided just months before the Supreme Court ruling in Brand X ,104 leaves commentators with uncertainty on how the FCC might react in a similar situation today.105 It is possible that the FCC will cite Title 1 ancillary jurisdiction over data services106 and hold service providers accountable for the policy statements made following DSL deregulation. 96

97

98

99 100 101

102 103 104 105 106

Press Release, Federal Communications Commission, New Principles Preserve and Promote the Open and Interconnected Nature of Public Internet (Aug. 5, 2005), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260435A1.pdf. United Power Line Council, 21 F.C.C.R. 13281, 13294 (Nov. 7, 2006) (concurring statement of FCC Commissioner Michael J. Copps, “[W]e are nowhere near finished defining what being an information service actually means.”). Mr. Copps seems to take the position that this is what he inherited with implied disapproval, but hopes that broadband over power lines can be a third true competitor in the broadband market. Id. Madison River Communications, LLC, 20 F.C.C.R. 4295, 4297 (Mar. 3, 2005) (consent decree). Id. Id. See Neal Hannan et al., Note, Net Neutrality and the FCC: What’s Being Done to Preserve It., COLUM. SCI. & TECH. L. REV., Mar. 29, 2007, http://www.stlr.org/html/engadget/? entry=005. 47 U.S.C. § 151 (1996). Madison River Communications, LLC, 20 F.C.C.R. at 4296. See id. at 4295. Nat‟l Cable & Telecomm. Ass‟n v. Brand X Internet Servs., 545 U.S. 967 (2005). See Am. Library Ass‟n v. F.C.C., 406 F.3d 689 (D.C. Cir. 2005). The FCC has “authority to promulgate regulation to effectuate the goals and provisions of the Act even

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At the time this paper was written, Comcast, one of the largest providers of broadband Internet access in the nation,107 was under fire for throttling BitTorrent108 traffic.109 BitTorrent allows for distributed file downloads and is known for its widespread use by consumers for illegally downloading copyrighted information, 110 although the technology useful for purposes other than copyright infringement.111 The technology was created to save bandwidth for file distributors, by allowing users to download from locations and other users that are logically closer.112 Although bandwidth may be saved for providers as well, it is unlikely that bandwidth in the more limited and expensive last mile will be saved.113 Furthermore, such technology encourages peer to peer transfers, which will likely increase the use of more expensive last mile links while decreasing the use of less expensive leased lines connected to the ISP. But, since this increases the use of the valuable upstream bandwidth, such applications are likely to be met with network management by network owners. We are likely to see some definitive answers from the FCC regarding the throttling of BitTorrent and other applications soon. VII.

COMPETITION

Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa stated that: [w]hile prioritizing websites or applications may hold some economic promise, the lack of broadband competition and insufficient transparency surrounding these actions will

107

108 109

110

111

112

113

in the absence of an explicit grant of regulatory authority, if the regulations are reasonably ancillary to the Commission‟s statutory powers and responsibilities.” Id. at 698. See Brian Stetler, Comcast to Place a Cap on Internet Downloads, N.Y. TIMES, Aug. 29, 2008, available at http://www.nytimes.com/2008/08/30/technology/30comcast.html. See BitTorrent Home Page, http://www.bittorrent.com (last visited Sept. 17, 2008). See Declan McCallagh, FCC Finalizes Comcast Filtering Penalties, CNET NEWS, Aug. 20, 2008, available at http://news.cnet.com/8301-13578_3-10021222-38.html?tag= mncol. See Tom Spring, BitTorrent’s Battle for Bandwidth Intensifies, PC WORLD, Nov. 21, 2007, available at http://www.pcworld.com/article/139854/bittorrents_battle_for_ bandwidth_intensifies.html. See Anthony Bruno, BitTorrent, Joost Put Download Tech to Legal Use, REUTERS, Feb. 25, 2007, available at http://www.reuters.com/article/musicNews/idUSN251892242007 0228. See BitTorrent FAQ and Guide, http://www.dessent.net/btfaq (last visited Sept. 18, 2008). The “last mile” represents the final link in a broadband network. For cable modem networks, the last mile is the coaxial cable link from the node that converts the fiber-optic digital signal into an RF signal. See The TOP Project, Telecommunications Glossary, available at http://top.bev.net/archive/tamp/8-Telecomm_Glossary/Telecomm_ Glossary.pdf (last visited Feb. 25, 2009).

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rightly lead to growing calls for regulatory reform that grants legal protection for the principle of network neutrality.114 However, this lack of competition argument does not sit well with others.115 In fact, many overstate the opposite, saying that there is plenty of competition and that there are new broadband technologies on the horizon. As with many arguments in the network neutrality debate, there is a middle ground. The broadband market today is largely a duopoly. Most broadband service subscribers receive service from either their local telephone or cable company.116 A duopoly, however, is still competitive, even if it is not perfect competition.117 William G. Laxton, Jr. pointed out that “[e]conomic research in 2001 found that the cross-price elasticity of DSL and cable services was positive, indicating that consumers view the two products as substitutes.”118 Both telephone and cable companies are at nearly 100% availability for broadband services, with availability for cable at over 97% of homes passed and telephone at over 92%.119 In the United States, Verizon,120 Cingular, and AT&T have already started to deploy wireless technology capable of delivering 2.0 Mbps to computers, handheld devices, or smart phones, with actual user experiences ranging from 741 Kbps to 1.2 Mbps in certain markets. The mobile market shows an interesting blend between the traditional Internet and wireless services that are typically seen on mobile phones. Even adamant proponents of network neutrality feel that it is unclear whether net neutrality applies in this space.121 But, as the devices we attach to mobile networks evolve, so will our view of the Internet through those devices. Ultimately, the distinction may disappear altogether. Then, there are leased lines, such as T-1 circuits, which may seem odd to bring into the competition argument, but the price for a T-1 circuit has

114 115

116 117 118 119

120

121

Geist, supra note 18. See William G. Laxton, Jr., The End of Net Neutrality, 2006 DUKE L. & TECH. REV. 15, § I (2006). Internet and Non-Discrimination Act of 2006 S. 2360, 109th Cong. § 2(6) (2006). Lampert, supra note 1, at 528. See Laxton, supra note 115 (discussing the economics behind network neutrality). Pike and Fisher, Competitive Analysis of DSL and Cable Modems: Quarterly Analysis 4th Quarter 2004 (2004), http://www.broadband-daily.com/crossIA.asp. However, note these are 2004 deployment numbers and they have since increased. See Sascha Segan, Verizon Wireless BroadbandAccess EV-DO, PC MAG, Mar. 2, 2005, available at http://www.pcmag.com/article2/0,1895,1770829,00.asp (containing a detailed survey of the Verizon service on the East Coast). Marguerite Reardon, Sony Eriksson Teams with Google, ZD NET, Feb. 28, 2006, available at http://news.zdnet.com/2100-1035_22-6044057.html. Google will apparently be the search engine of choice for Sony mobile phones. If any of the proposed net neutrality legislation were to pass, this would be a clear violation unless Sony gave other search providers equal access to the customer.

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been steadily declining.122 There is additional perspective gained by entertaining leased lines as market substitutions for cable modem and DSL service. A T-1 line traditionally offers speeds of 1.544 Mbps on both the upstream direction as well as the downstream direction.123 The price of a T-1 line is relevant because it represents the true market cost of unmetered, neutral bandwidth at speeds somewhat comparable with consumer broadband networks.124 Wireless “Super-T” service is also available at a similar price for those in areas where dropping a T-1 line is not convenient.125 The price of an unmetered asynchronous wireless connection of 1Mbps through a dumb pipe is nearing the point of market substitution, at least for power users. A residential broadband consumer is expected to use only a portion of the bandwidth. In a residential setting, those who use less bandwidth typically pay the same for their service as those using a large amount of bandwidth. Thus, the low bandwidth user subsidizes the high-bandwidth user. This allows service providers to escape from pricing models that charge by the amount of data traversing the network on the user‟s behalf, or even worse, the early AOL model of charging by the minute.126 Consumers that constantly use all or most of the bandwidth allotted to them on a broadband network raise flags.127 These users may be affecting the experience of other paying users of the network. Such use is not necessarily an indication that the user is unethical or doing something illegal, but may be an indication that the service the user has chosen is inappropriate for his usage requirement. A user who intends to leave BitTorrent running constantly to serve files to others should choose a T-1 or Wireless Super-T service.

122

123

124

125

126

127

Quote from Covad Communications on Feb 7, 2008. An unmetered T-1 line to my home currently costs $329 per month for a 3 year commitment and $359 per month with a one year commitment. Installation charges will be waived. See J. Martin Network Working Group, Ohio State Univ., There’s Gold in them thar Networks! or Searching for Treasure in all the Wrong Places, RFC 1402, Jan. 1993, available at http://www.faqs.org/ftp/rfc/pdf/rfc1402.txt.pdf. While 1.544 Mbps is slower than the 6-8 Mbps download speeds offered by Comcast, the 1.544 Mbps upload speeds are greater than the 384-768 kbps upstream offered by Comcast. See Comcast, What Speeds are Available with Comcast High Speed Internet, http://www.comcast.com/customers/faq/FaqDetails.ashx?ID=2580 (last visited Sept. 18, 2008). Quote from Covad Communications on Feb 7, 2008. (Unmetered 1Mbps wireless SuperT to my home at a cost of $199 per month for a one year commitment. Installation charges will be waived.) See Posting of Jon Healey to BitPlayer, AOL Parent Revives Usage-Based Billing, http://opinion.latimes.com/bitplayer/2008/01/aol-parent- revi.html (Jan. 17, 2008). See Comcast, FAQ About Excessive Use, http://www.comcast.com/customers/faq/ FaqDetails.ashx?ID=4566 (last visited Sept. 5, 2008).

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PROPOSED LEGISLATION

Several pieces of legislation have been submitted to Congress in hopes of addressing perceived problems related to network management principles.128 The only bill currently before Congress is the Internet Freedom Preservation Act of 2008.129 However, it is useful to survey legislation previously proposed in order to avoid possible misunderstandings and pitfalls in future proposals. The perspective gained by the hypothetical situations discussed above, as well as our review of network architecture and peering basics, should make some of these pitfalls clear. IX.

INTERNET FREEDOM AND NONDISCRIMINATION ACT OF 2006

The Internet Freedom and Nondiscrimination Act of 2006130 would create a problem that is common in almost all proposed net neutrality legislation. The Act would require that service provided to non-affiliated content be at least equal to service provided to affiliates, free of any surcharge.131 What, then, is the point of being an affiliate? The Act would further require that management of the network to protect the security of such a network cannot result in discrimination among content, applications, or services.132 Putting neutrality before network management has its own negative consequences,133 but putting neutrality before security is simply foolish. X.

INTERNET NONDISCRIMINATION ACT OF 2006

Internet Nondiscrimination Act of 2006134 does not allow discrimination in allocating bandwidth.135 This ignores the value in private 128

129 130 131 132 133

134 135

See Internet Freedom and Nondiscrimination Act, H.R. 5417, 109th Cong. (2006); Internet Nondiscrimination Act, S. 2360, 109th Cong. (2006); Internet Freedom Preservation Act, S. 2917, 109th Cong. (2006). H.R. 5353, 110th Cong. (2008). H.R. 5417. Id. at § 3(2)(a)(1). Id. at § 3(2)(c)(1). For example, if a network were near capacity, applications that rely on minimal packet loss would be seriously impaired, while email and other services would have minimal problems. Prioritizing the applications that need such treatment would have little effect on other services, but make a world of difference to the user of the application. See Kevin Fall & Steve McCanne, You Don’t Know Jack About Network Performance, QUEUE, May 2005, at 56 (defining “packets” and effect of packet loss on applications); see also Edward W. Felten, Nuts and Bolts of Network Neutrality, Center for Information Technology Policy, Princeton University, July 6, 2006, at 4, http://itpolicy.princeton.edu/ pub/neutrality.pdf. S. 2360. Id. at § 4(a)(2)(A).

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peering for content distribution purposes. Simply put, traversing the Internet with high-bandwidth content is not good for anyone. It creates an Internet traffic jam, much like the one that led to the demise of the NAPs.136 Content that is distributed through a private peering provider by way of a mutual agreement can help ease this burden.137 Another problem with the Act is that any exceptions, such as spam blocking, need to be under the control of the customer.138 This assumes that the network provider has no interest in blocking spyware, malware, spam, and the like, effectively making the network a dumb pipe at the mercy of its users. The Act also attempts to subject all information services, regardless of technology used, to this regulation.139 On-demand technology is specifically noted,140 and the Act‟s definition of such technology is listed as the definition in the Communications Act of 1934,141 but excludes cable services.142 The definition in the Communications Act is, “a service providing video programming to subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing video programming prescheduled by the programming provider.”143 This is disturbing because the network architecture of cable-based on-demand services fits this description.144 Such technology should be separated from network neutrality principles due to its non-public nature and logical separation from the Internet. Additionally, the Act allows providers to take “reasonable and nondiscriminatory measures to protect the security of the network of such 136

137

138 139 140 141 142 143 144

See Geoff Huston, Interconnection, Peering, and Settlements, Internet Society, ISP Column, at 10 (1999), http://www.isoc.org (search “Huston”; select “Interconnection, Peering, and Settlements” hyperlink) (providing more information on peering and the demise of the NAPs). See Equinix, http://www.equinix.com (click on “Investors”; then “Corporate Profile”) (providing more information on their private peering and content distribution services and stating Equinix is the leading global provider of network-neutral data centers and Internet exchange services for enterprise, content companies, and network service providers). S. 2360 § 4(9)(B)(1)(A). Id. at § 3(1)(A)-(B). Id. at § 3(4)(B). 47 U.S.C. § 522 (12) (1996). S. 2360 at § 3(4)(C). 47 U.S.C. § 522(12). While addressing schemes that are used to deploy on-demand services over cable networks, the requirements for providing such services are much different, and more investment is required. Additional local equipment is needed to ensure that a single channel does not broadcast the same information for every cable customer for example. Rather, on-demand technology relies on local control of channel maps, allowing a person in one city to use the same frequency as a person in another city to view different content of their choosing. See, mi2n, One in 10 Americans Show a Heavy Preference to Control Their Media and Entertainment, Music Industry News Network, Mar. 18, 2005, http://www.mi2n.com/press.php3?press_nb=77926 (providing a description of cablebased, on-demand services and viewer control).

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operator, if such operator faces serious and irreparable harm.”145 Those drafting legislation seem too willing to put neutrality principles ahead of security. Even if the harm is serious and irreparable, the operator can only take action in a way that is non-discriminatory.146 XI.

INTERNET FREEDOM PRESERVATION ACT

The Internet Freedom Preservation Act 147 also has problems. The Act states: Each broadband service provider shall...enable any content, application, or service made available via the Internet to be offered, provided, or posted on a basis that…is at least equivalent to the access, speed, quality of service, and bandwidth that such broadband service provider provides to affiliated content, applications, or services made available via the public Internet into the network of such broadband service provider.148 The problem with this language is that it puts the burden of an endto-end experience on only one player, the ISP.149 The Act also requires any prioritization be done by application.150 This requirement ignores the lack of incentive by the network owner to use prioritization, as discussed in Hypothetical B above.151 XII.

INTERNET FREEDOM PRESERVATION ACT OF 2008

The Internet Freedom Preservation Act of 2008152 seemingly has a different goal than the previous bills proposed to Congress.153 Instead of establishing rules to enforce network neutrality principles, it focuses on establishing public policy and directing the FCC to actively study network neutrality principles.154 Although the language seems fair on its face, and the purpose seems benign, the passage of this bill would likely set the stage for enacting legislation based on the policies in this bill.155 While the FCC has its own policy statement, the Act tries to add to these policies with conclusory 145 146 147 148 149 150 151 152 153 154 155

S. 2360 at § 4(b)(1)(C) (emphasis added). Id. S. 2917. Id. at § 12(a)(4)(B) (emphasis added). Id. at § 12(a). Id. at § 12(a)(5). See supra pp. 17-20. H.R. 5353. S. 2917, Pmbl. H.R. 5353 Pmbl. Haas, supra note 75, at 1635.

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language which suggests that legislation is required to ensure the open marketplace of ideas on the Internet.156 Specifically, the Act states: It is the policy of the United States...to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.157 This statement assumes what the assessment required in the Act sets out to prove: that net neutrality legislation is required in order to safeguard the open marketplace of ideas on the Internet. The Act further requires the FCC to gather facts related to network neutrality and management principles.158 Although the FCC‟s own policy statement would be invoked and the FCC would be asked to determine whether that policy is being followed, the FCC would also be asked to determine “with respect to content, applications and services, the historic economic benefits of an open platform.”159 Again, there is an assumption that an “open platform,” whatever the meaning, somehow provides an economic benefit. Although the Act will do little by itself to enact net neutrality legislation, it creates a policy that assumes legislation is required gets the ball rolling.160 Unfortunately, net neutrality is still a solution without a well defined problem,161 and the problems that can be defined are the result of business planning and market forces, not an evil technology that needs a leash. XIII.

ALTERNATIVE LEGISLATION

The Internet community is better off with a wait-and-see method, because it would give the FCC an opportunity to enforce the more flexible policy statement162 if the need arises. However, proper legislation with a set of rules that get to the heart of the public policy at issue could be created to support network neutrality principles. Such legislation would exchange the

156 157 158 159 160 161

162

H.R. 5353 at § 12(4). Id. Id. at § 4(a)(2)(A)-(G). Id. at § 4(a)(2)(A)-(E). Id. See Yoo, supra note 74, and accompanying text (citing Peter J. Howe, News from the Chicago Cable and Telecom Show, BOSTON GLOBE, June 16, 2003, at C2). See Press Release, Federal Communications Commission, New Principles Preserve and Promote the Open and Interconnected Nature of Public Internet, Aug. 5, 2005, available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260435A1.pdf.

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[Vol. 17

bright-line rule approach for a balancing test. This test should weigh at least the following factors: 1. 2. 3. 4. 5.

The property rights of the network operator; The architecture of the network involved; The effect on the network; The contracting rights of all parties involved; The content and application provider‟s right of access to the market; 6. The consumer‟s right to access the lawful Internet content of their choice; 7. The consumer‟s right to competition among network, content, and application providers; and 8. Competition in the marketplace, and whether completely neutral alternatives are available.163 Taking these factors into account will truly level the playing field.164 If a bright-line rule is drawn to make a particular technology or use of technology illegal, we risk the loss of innovation and legitimate positive uses for the technology that has been limited. We also risk stepping away from the public policy in an effort to create a law that is easier to draft and interpret, at the expense of justice, and possibly innovation. XIV.

CONCLUSION

The debate about network neutrality can be reduced to a desire for fairness. Although there is currently no apparent widespread abuse,165 content providers see an opportunity to swing the pendulum in their favor through the legislative process. This would undoubtedly result in some inequity, restricting network providers from using technologies deemed to be against public policy. Network providers ask for a wait-and-see approach, arguing that Congress should not try to solve a problem that does not exist.166 Currently proposed legislation stifles innovation and needlessly interferes with the market. While there is an alternative that may create a fair outcome,

163

164

165 166

There are many factors that can be weighed, but these, in the author‟s opinion, get the heart of the public policy at issue. Although this would not be the easiest rule to enforce, it would offer more justice. See Connected: An Internet Encyclopedia, OSI Seven-Layer Model, http://www.freesoft.org/CIE/Topics/15.htm (last visited Sept. 19, 2008); Ring of Saturn Internetworking, Seven Layer Model, http://networking.ringofsaturn.com/Protocols/ sevenlayer.php (last visited Sept. 18, 2008); Javvin Network Management and Security, OSI 7 Layers Reference Model for Network Communication, http://www.javvin.com/ osimodel.html (last visited Sept. 19, 2008). See Yoo, supra note 74 and accompanying text. See Felten, supra note 133.

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the FCC has adopted a flexible policy 167 that supports the basic network neutrality principles, and they should be given adequate opportunity to enforce those policies before forcing new requirements on network operators.

167

See Press Release, Federal Communications Commission, New Principles Preserve and Promote the Open and Interconnected Nature of Public Internet (Aug. 5, 2005), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260435A1.pdf.