Recently in Net Neutrality Category

FCC Open Internet Order

Last week, the FCC adopted (and then a few days later, released the text of) an order intended to protect the open nature of the internet: In re: Matter of Preserving the Open Internet. I'm just finally going through the Order, but here are some commentary from those who have read the Order and those who commented on the meeting before the Order's text was published:

Sen. Al Franken, The Huffington Post, Al Franken: The Most Important Free Speech Issue of Our Time: "As a source of innovation, an engine of our economy, and a forum for our political discourse, the Internet can only work if it's a truly level playing field. Small businesses should have the same ability to reach customers as powerful corporations. A blogger should have the same ability to find an audience as a media conglomerate."

Steve Wozniak, The Atlantic, Steve Wozniak to the FCC: Keep the Internet Free: "The early Internet was so accidental, it also was free and open in this sense. The Internet has become as important as anything man has ever created. But those freedoms are being chipped away. Please, I beg you, open your senses to the will of the people to keep the Internet as free as possible. Local ISP's should provide connection to the Internet but then it should be treated as though you own those wires and can choose what to do with them when and how you want to, as long as you don't destruct them. I don't want to feel that whichever content supplier had the best government connections or paid the most money determined what I can watch and for how much. This is the monopolistic approach and not representative of a truly free market in the case of today's Internet."

Barbara van Schewick, The FCC’s Open Internet Rules – Stronger than You Think "While Commissioners Copps and Clyburn did not get the exact protections for users and innovators they had asked for, they managed to improve the chairman’s original proposal quite a bit. In particular, the text of the order sets out important principles that will guide the commission’s interpretation of the non-discrimination rule and the reasonable network management exception; explicitly bans network providers from charging application and content providers for access to the network providers’ Internet service customers; stops just short of an explicit ban on charging application and content providers for prioritized or otherwise enhanced access to these customers (this second practice is often called “paid prioritization”); and keeps alive the threat of regulation with respect to the mobile Internet."

Ars Technica, It's here: FCC adopts net neutrality (lite) "The regulations ban content blocking and require transparency from ISPs. They also require network management and packet discrimination to be 'reasonable,' but they exempt wireless broadband from all but the transparency and blocking rules."

Brian Stelter, NY Times, F.C.C. Approves Net Neutrality Rules and Braces for Fight: "The debate over the rules, intended to preserve open access to the Internet, seems to have resulted in a classic Washington solution %u2014 the kind that pleases no one on either side of the issue. Verizon and other service providers would prefer no government involvement. Public interest advocates think the rules stop far short of ensuring free speech. Some Republicans believe the rules are another instance of government overreach."

Nilay Patel, Engadget, FCC: We didn't impose stricter net neutrality regulations on wireless because Android is open: "Now, we obviously love Android, and there's no doubt that Google's OS has been part of some wonderfully furious competition in the mobile space recently. But we're not sure any of that has anything to do with net neutrality -- it doesn't matter how open your OS is when you're stuck with a filtered and throttled connection, and it's a pretty huge stretch to think Android's openness (however you want to define it) has anything to do with network access itself."

Two quick internet policy links

Susan Crawford presented Rethinking Broadband at Personal democracy Forum '10, which is a brief overview and introduction to the current state of communications policy, the major policy questions and the interests of the various players. A very worthwhile and quick overview:

Aparna Sridhar, Free Press, The Truth About the Third Way: Separating Fact from Fiction in the FCC Reclassification Debate: "While we welcome a lively debate about the best way for the FCC to move forward with implementing the National Broadband Plan, that debate should be informed by the history of communications law and policy in this country and accurate facts about both the FCC’s proposal and the technological and market realities of today’s broadband world. It should not be based on deliberate misdirection and obfuscation. We offer this issue brief to shed light on some of the more obvious misconceptions circulating about the FCC’s proposal."

Yesterday, in an already widely discussed decision, the US Court of Appeals for the DC Circuit ruled that the FCC does not have the authority to regulate network management practices under its ancillary jurisdiction. Comcast Corp. v. Federal Communications Comm'n.

Because control over Internet access is such an important and personal issue, this ruling made the front page o the New York Times and Washington Post today. Time Magazine's television critic wrote a long blog post about this ruling.

The Communications Act grants the Commission authority to regulate broadcast and telecommunications with specific enumerated powers. And more than a decision on network management practices, the crux of the Comcast ruling is more to do with how the Commission decided to approach regulating broadband back at the beginning of this century. And this decision highlights some of the tensions between letting the Internet itself develop as a forum without too much government regulation and the need to regulate internet access providers in order to ensure that individual users have open access to the Internet itself.

The FCC has the authority to regulate common carrier communications under Title II of the Communications Act. These regulations are meant to ensure that telephone carriers act as common carriers. In a very broad and crude definition, common carriers are required to transmit exactly what they are asked to pass on. Title II requires that carriers not discriminate against or give any unreasonable preference to particular users of its telecommunications services.

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

Title II places other restrictions on common carriers, such as the requirements to charge only set rates, to contribute to the costs of rural telephone systems, and to allow interconnection with the facilities and exchanges of all other telecommunications providers. In order to allow the then-nascent broadband internet access market to develop in a competitive fashion, the Commission decided to classify cable modems as an information service, rather than a telecommunications service, so that they wouldn't be subject to all of the regulations on Title II services.

Information services are outside the scope of Title II regulation.

The term 'information service' means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

A simple way to think about the distinction between common carriers and information services is to think back deep into the past and consider accessing a BBS using a computer and dialing in using a modem. The phone line you use to place the call is a common carrier, but the computer that hosts the BBS at the other end is an information service provider. Even though it's accessed over the phone line, the BBS is not providing telephone communications services. All the telephone line is doing in this case is transmitting the data.

In 2002, the FCC ruled that cable modem service is properly classified as an information service rather than cable service or telecommunications service offering and therefore is not subject to common carrier regulation, but merely to regulation under the Commission's ancillary jurisdiction to regulation communications under Title I of the Act. In re: Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities.

The Supreme Court affirmed the Commission's ability to make that regulatory classification in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005). In a 6-3 opinion delivered by Justice Thomas, the Court overturned the Ninth Circuit and ruled that the Commission acted within the scope of its power to make such a regulatory classification and that the classification should be afforded judicial deference. (Previously: Brand X)

In 2008, the FCC issued a ruling that Comcast’s selective treatment of the BitTorrent protocol was a "discriminatory and arbitrary practice unduly [that] squelches the dynamic benefits of an open and accessible Internet and does not constitute reasonable network management." In re: Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Application No. 08-183.

The FCC's authority to regulate information services stems from its ancillary jurisdiction in Title I of the Communications Act; it gives the FCC authority to perform acts not contemplated in the statute that might be necessary to carry out the goals enumerated in the statute:

The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions. 47 USC §154(i)

In Comcast, the cable operator challenged the Commission's order, on theory that the FCC can not regulate a cable modem information service under its ancillary jurisdiction of Title I. The Commission argued that these regulations are necessary in order to promote the policy goals of §230(b), "It is the policy of the United States… to promote the continued development of the Internet and other interactive computer services and other interactive media."

The DC Circuit examines at whether the use of ancillary jurisdiction is permissible using a two-part test, "The Commission . . . may exercise ancillary jurisdiction only when two conditions are satisfied: (1) the Commission’s general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities."

The DC Circuit ruled that the authority in ancillary jurisdiction was not sufficient to be the sole authority for the FCC Order. "the Commission is seeking to use its ancillary authority to pursue a stand-alone policy objective, rather than to support its exercise of a specifically delegated power." Ancillary jurisdiction can be exercised for reasons stemming from other parts of the Telecommunications Act, but does not provide justification in and of itself for agency action.

By specifically exempting cable modem service from Title II classification in 2002, is the Commission now prevented from enacting network neutrality regulations? What does this mean for network neutrality? One view is that the FCC lacks the authority to regulate broadband providers to protect the free flow of information across the internet. Or, it could be that the FCC's decision to classify cable modem service as an information service should be reconsidered -- the information service aspects of internet access can be distinguished from the common carriage aspects. Because what is network neutrality, if not a form of common carriage?

Perhaps the reason that so many people are concerned about this ruling and the issue of network neutrality in general, is because the internet is used more for communications than for accessing information. Like the dial tone for the 20th century, access to the internet is the fundamental baseline for communications in the 21st century.

Links with better analysis:

Susan Crawford, "Ancillary jurisdiction" has to be ancillary to something, "The next time the FCC wants to issue an Order or otherwise exercise power over high-speed Internet access providers, it had better be very clear about the source of its power, and it can’t rely on just its 'necessary and proper' clause in Title I."

Jack Balkin, What's Next For Network Neutrality?, "It's possible that the FCC will simply see if it can get a reversal in the Supreme Court. That will take many more years of litigation. But the FCC might decide that the better solution is to retrace its steps, correct the mistake it made in 2002, and reassert Title II authority over broadband. Doing this would give the FCC the tools it needs to deal with the regulatory problems of the future."

Law Librarian Blog, FCC Loses Comcast Appeal on Net Regulation "The most likely scenario is for Congress to specifically grant authority to the FCC when it considers legislation to implement the National Broadband Plan. Members of Congress have spoken out on the issue of network neutrality. Nonetheless, it's going to take an intense lobbying effort by consumer and public interest groups to match the deep pockets of the ISPs and content providers who are against Internet regulation. It should be interesting to see how the players line up after this development."

Public Knowledge: Public Knowledge Explains: The Comcast-Bittorrent Decision, "The real tragedy of today’s ruling is that this entire issue is a self-inflicted wound by the FCC. When it decided not to regulate broadband Internet under Title II (by placing cable broadband into Title I and moving DSL broadband from Title II to Title I), it turned its back on a specific delegation of powers from Congress. There would be no debate about ancillary authority if the FCC were to recognize that broadband Internet is a Title II 'telecommunications' service. The FCC has the statutory power it needs if it chooses to use it."

Jenna Greene, National Law Journal, Uncertainty for FCC's 'Net Neutrality' in Wake of Comcast Ruling, "In the wake of a stinging defeat in court, the Federal Communications Commission finds its ability to regulate the Internet in question, its signature 'net neutrality' initiative hanging by a thread. Now, the agency faces several unpalatable options."

Economist Democracy in America Blog, Hey internet entrepreneurs, nuts to you "Ah, the joys of rent-seeking behaviour. The most likely result of allowing connectivity companies to charge discriminatory fees for different packets is what internet entrepreneur Alok Bhardwaj calls 'extortionary pseudo-services": fees to allow some of your packets to arrive ahead of others, or to allow your packets to arrive ahead of your neighbour's. Another likely result is simple profit-seeking control over content delivery."

Mehan Jayasuriya, Public Knowledge, The FCC Lacks the Authority to Protect Internet Users--Now What? "The roots of this problem can be traced back to 2001, when the FCC began a process that would effectively deregulate broadband Internet services, reclassifying broadband service as an 'information service' (Title I of the Communications Act), rather than a 'telecommunications service' (Title II). Though this may seem like a fine distinction it's not: in reclassifying broadband services, the FCC lost the ability to take action against broadband ISPs that engage in 'unjust' or 'unreasonable' practices."

Ryan Singel, Wired, Court Drives FCC Towards Nuclear Option to Regulate Broadband "A federal appeals court all but told the FCC Tuesday that it has no power to regulate the internet, putting large chunks of the much-lauded national broadband plan at risk. And the FCC has only itself to blame."

Franken on Net Neutrality

I missed the Future of Music Policy Summit this year, but Senator Al Franken gave a keynote address that summarizes concisely the key concerns about the need for net neutrality, framed in terms of a First Amendment free speech concern and secondly about creating entrepeneurial opportunities (rather than enabling and entrenching incumbents.) Al Franken Keynote Address to Future of Music Policy Summit 2009, "The stifling of openness on the Internet isn’t always about censorship. In the future, it could simply be a product of business at work – of ISPs turning a profit."

C-SPAN, The Future of Music Policy Summit 2009 - Keynote by Sen. Al Franken (D-MN), REM Songwriter Mike Mills, and FCC Chair Julius Genachowski participate in the Future of Music Policy Summit 2009, which examines the direction of the digital music industry.

FCC Set to Adopt Open Internet Rules

In a speech on Monday at the Brookings Institution, new FCC Chairman Julius Genachowski proposed that the FCC adopt a stronger position and be more actively involved in regulating an open Internet.

To date, the Federal Communications Commission has addressed these issues by announcing four Internet principles that guide our case-by-case enforcement of the communications laws. These principles can be summarized as: Network operators cannot prevent users from accessing the lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.… Today, I propose that the FCC adopt the existing principles as Commission rules, along with two additional principles that reflect the evolution of the Internet and that are essential to ensuring its continued openness.…

The fifth principle is one of non-discrimination -- stating that broadband providers cannot discriminate against particular Internet content or applications. This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers’ homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed.

The sixth principle is a transparency principle -- stating that providers of broadband Internet access must be transparent about their network management practices.

The FCC launched OpenInternet.gov to share information.

Reactions and Reporting:
William McGeveran, Info/Law, FCC to Propose Net Neutrality Rules "This will be a major fight, probably the most significant battle we have seen within the federal government over the structure of the internet."

Marguerite Reardon, CNet, Verizon, AT&T: Net neutrality not OK for wireless "Verizon and AT&T, which operate the nation's largest and second-largest cell phone networks, respectively, say the rules should not apply to wireless Internet access."

Comcast Executive Vice President David L. Cohen asks Does the Internet Need More Regulation? "The Internet in America has been a phenomenal success that has spawned technological and business innovation unmatched anywhere in the world. So it’s still fair to ask whether increased regulation of the Internet is a solution in search of a problem."

Nate Anderson, Ars Technica, ISPs react, sort of support network neutrality—with caveats: "In one important sense, the 'openness' advocates have already won the first round of the debate: the way the issue is framed. As you can see from the statements below, no companies will come out against the idea of being 'open,' at least when it comes to wired networks."

Ryan Singel, Wired, FCC Backs Net Neutrality — And Then Some: "FCC chairman Julius Genachowski delivered Monday on President Obama’s promise to back ‘net neutrality.’ But he went much further than merely seeking to expand rules that prohibit ISPs from filtering or blocking net traffic — he proposed that they cover all broadband connections, including data connections for smartphones."

Saul Hansell, The New York Times, F.C.C. Chairman Seeks to Protect Free Flow of Internet Data: "Perhaps most significantly, Mr. Genachowski will propose that the net neutrality principles be formally adopted as commission rules, a lengthy procedure that involves several rounds of public comment. His predecessor, Kevin Martin, avoided making formal rules, arguing that the industry changes too quickly. He preferred to respond to complaints when they were filed."

David Weinberger, NPR, Net Neutrality And Beyond: "But [regulation is] only necessary because the way we deliver Internet in this country waves at least three major Temptations to Discriminate in the faces of the access providers. 1. A provider may want to gain advantage over a competitor's services — like Apple not allowing Google's phone service on the iPhone. 2. It may honestly believe that its users want it to give the delivery of (for example) video priority over the delivery of e-mails or search results. 3. Or, it may view discrimination as triage necessary to handle high volumes of traffic."

And finally, a new blog focusing on these rulemaking proceedings from law professors Jim Speta (Northwestern), Tim Wu (Columbia) Christopher Yoo (Penn) is at Net Neutrality Rules.

The Wall Street Journal reports that President-Elect Obama plans to nominate his technology adviser, Julius Genachowski, to chair the FCC. Genachowski Picked to Head FCC - WSJ.com: "During the campaign, Mr. Genachowski served as the top technology adviser to Mr. Obama, putting together a detailed technology and innovation plan that expressed support for open Internet or 'net neutrality' protections; media-ownership rules that encourage more diversity; and expansion of affordable broadband access across the country."

Over in Congress, Rep. Rick Boucher (D-VA) will chair the U.S. House Energy and Commerce Committee's Subcommittee on Communications, Technology and the Internet. In the 111th Congress, Rep. Boucher "will oversee the digital television transition and work toward reform of the federal universal service fund, promote broadband deployment and work to enable local governments to offer broadband in communities not fully served by commercial carriers."

Today at 2:00 EDT, The Judiciary Committee Antitrust Task Force will hold a Hearing on Net Neutrality and Free Speech on the Internet.

Damian Kulash Lead Vocalist and Guitarist OK Go

Michele Combs
Vice President of Communications
Christian Coalition of America

Rick Carnes
President
Songwriters Guild of America

Caroline Fredrickson
Director
ACLU Washington Legislative Office

Christopher S. Yoo
Professor of Law and Communication and Director
Center for Technology, Innovation, and Competition
University of Pennsylvania Law School

Susan P. Crawford
Visiting Associate Professor of Law
Yale Law School

It will be webcast live (which I will miss while I'm on a plane sxsw-bound.)

Reps. Ed Markey (D-MA) and Chip Pickering (R-MS) introduced the Internet Freedom Preservation Act of 2008 (H.R. 5353).

This bill would "establish broadband policy and direct the Federal Communications Commission to conduct a proceeding and public broadband summits to assess competition, consumer protection, and consumer choice issues relating to broadband Internet access services."

It amends the Communications Act of 1934 to include open access principles and establish the importance of the internet for the economy of the US.

  1. to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;

  2. to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;

  3. to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and

  4. 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.

Even though there are four principles, these are somewhat broader than former FCC Chairman Michael Powell's four freedoms.

The bill requests a report from the FCC about broadband network providers. The information the bill specifically requests is (language somewhat simplified to be less precise, but easier to read. See the original text of the bill for the precise language):


    (A) whether broadband network providers refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to--
      (i) access, use, send, receive, or offer lawful content, applications, or services
      (ii) use lawful applications and services of their choice; and
      (iii) attach or connect their choice of legal devices, provided such devices do not harm the network;
    (B) whether broadband network providers add charges for quality of service, or other similar additional fees or surcharges, to certain Internet applications and service providers, and whether such pricing conflicts with the policies [set out earlier in this bill]
    (C) whether broadband network providers offer to consumers parental filters, spam filters and similar consumer services;
    (D) practices by which network providers manage or prioritize network traffic, including prioritization for emergency communications, and whether and in what instances such practices may be consistent with such policies of the United States;
    (E) with respect to content, applications, and services--
      (i) the historic economic benefits of an open platform;
      (ii) the relationship between competition in the broadband Internet access market and an open platform; and
      (iii) the policy choices and results of global competitors with respect to access competition and an open platform;
    (F) whether the need for enforceable rules governing openness, consumer rights, and consumer protections or prohibiting unreasonable discrimination is lessened if a broadband network provider provides significantly high bandwidth speeds to consumers; and
    (G) the potential of policies promoting openness in spectrum allocation, universal service programs, and video franchising to expand innovation through protection from unreasonable interference by network owners of an open marketplace for speech and commerce in content, applications, and services.

Finally, the bill would require the FCC to hold at least 8 broadband summits in geographically diverse locations around the US.

Rep. Markey's press release: Internet Freedom Law Will Keep Internet Open For Future Innovators: "The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers. Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers."

Howard Feld, The Markey-Pickering "Net Neutrality" Bill: Grinding Out One More First Down In The Internet Freedom Bowl: "This is a good bill — probably the best that can get through in the current Congress. It advances the ball forward in a substantial way, and would make a good law if passed. It doesn't solve all the problems, but it doesn't pretend to do so either. It deliberate lines things up for the next step — assuming we get that far."

Derek Slater, Rep. Markey’s new net neutrality legislation: "Net neutrality is too often painted as just about particular companies’ competing interests, but that’s missing the point. Rather, net neutrality and broadband policy are — and should be — about what’s ultimately best for people, in terms of economic growth as well as the social benefit of empowering individuals to speak, create, and engage one another online using the wide panoply of innovations available to them. In other words, broadband policy should come from the bottom up."

The Wall Street Journal, Officials Step Up Net-Neutrality Efforts: "Big broadband companies are headed for a clash with Washington over whether consumers have a right to get as much as they want from the Internet, as fast as they want it, without paying extra for the privilege." Maybe this is better framed as whether the broadband providers have an obligation to disclose how they restrict customers' use of the internet and whether the public interest should require providers to offer access that does not discriminate against content, source or protocol.

In November, Comcast was found to be blocking and degrading certain P2P and groupware network protocols. The issue with Comcast is not that it is imposing limits on users' bandwidth, but that it imposes those limits on the use of certain protocols and applications while failing to disclose that the limits exist and the extent of those limits.

Vuze, a online video provider whose software uses the BitTorrent P2P protocol to distribute content filed a complaint with the FCC about these practices Petition to Establish Rules Governing Network Management Practices by Broadband Network Operators. Free Press and Public Knowledge also filed a Formal Complaint against Comcast for Secretly Degrading P2P Applications and a Petition for Declaratory Ruling.

The Commission sought Comments for Declaratory Ruling Regarding Internet Management Policies and Comments on Petition for Rulemaking to Establish Rules Governing Network Management Practices by Broadband Network Operators.

The FCC has received more than 28,000 comments. Here is Comcast's comment. Some of the other recent comments include Verizon and Verizon Wireless, Qwest,
Time Warner Cable, RIAA, American Library Association and CDT.

The FCC is planning on holding a hearing on February 26 in Cambridge, MA on Broadband Network Management Practices.

ISP Filtering

One of the big issues in tech and IP policy this year will be the role of ISPs. To what extent should they be common carries of information, enforcers of digital copyright, or delivery networks giving special priority to preferred media providers?

The NY Times published an AP report that the FCC will investigate complaints that Comcast blocks BitTorrent traffic on its networks, F.C.C. to Look at Complaints Comcast Interferes With Net: "The Federal Communications Commission will investigate complaints that Comcast actively interferes with Internet traffic as its subscribers try to share files online, the commission’s chairman, Kevin J. Martin, said Tuesday."

From another session at CES, the Times' Bits blog reports that AT&T is looking to act as an enforcement agent for copyright owners, AT&T and Other ISPs May Be Getting Ready to Filter

"'What we are already doing to address piracy hasn't been working. There’s no secret there,' said James Cicconi, senior vice president, external & legal affairs for AT&T.

Mr. Cicconi said that AT&T has been talking to technology companies, and members of the MPAA and RIAA, for the last six months about implementing digital fingerprinting techniques on the network level.

'We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this,' he said. 'We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.'"

Reaction from David Isenberg, isen.blog: Konflating Kopyright and Kongestion: "The two issues should be separated. Network congestion has some very simple solutions."

Type "nytimes" into your browser's location bar. Unless you have a local server on your network called nytimes, some web browsers (including Safari) will automatically add "http://www." and ".com" to bring you to The New York Times at "http://www.nytimes.com." Other current browsers will search for the keyword in the user's default search engine (including IE). That is, unless you get your internet access through Verizon.

Recently, Verizon has changed the way that its DNS servers react to these domain requests. Instead of sending the browser a "host not found" message, and following the individual user's preferences, Verizon returns its own search page:

verizon-nytimes.jpg

ConsumerAffairs.com, Verizon Overrides Internet Searches With Its Own Results: "The change has been advertised by Verizon as a way to help users reach the site they were trying to get to, but some are concerned that it's done more to gain revenue from advertisements placed on the Verizon search site."

In 2003, Network Solutions (the company that controls the .com and .net registries) made a similar change. While that change affected the entire internet's DNS system for .com and .net domains, this affects only Verizon's customers.

Susan Crawford, Monetizing Disorder: "Is this a violation of net neutrality? It certainly is a 'system expectation violation.' We don’t expect ISPs to be filtering our web browsing requests and inserting themselves into the conversation. There’s some concern that the ISP could be doing more than presenting a response page, as we’ve seen from the Comcast flap. Although in a larger sense it’s just what all the other players in the chain want to do - make money from disorder - we want to avoid having the plumbing, the transport, do this without a user’s acquiescence."

Ed Felten, Freedom to Tinker, Verizon Violates Net Neutrality with DNS Deviations, "This is a clear violation of net neutrality: Verizon is interfering with the behavior of the DNS protocol, in order to drive traffic to its own search site. And unlike the Comcast scenario which might possibly have been justifiable as legitimate network management, in this case Verizon cannot claim to be helping its network run more smoothly."

Verizon Censors Abortion Messages?

In The New York Times, Adam Liptak reports, Verizon Blocks Messages of Abortion Rights Group - New York Times: "Saying it had the right to block 'controversial or unsavory' text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program." Verizon does not appear to be blocking text messages based on content, but discriminating on access to messaging features for advocacy of particular causes. The company prohibits "controversial speech" in its text message broadcast program and seeks to prevent its customers from being able to subscribe to controversial text message lists, against its own financial best interest. Frank Pasquale, Concurring Opinions, Cell Phone Gag Rule: "This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless's new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure." While not directly enabling this kind of carrier preference, two recent FCC rulings touch on issues relating to the question of whether short-number broadcast text messaging services are part of wireless carriers' common carrier obligation. Last month, the Commission ruled that text messaging is part of the level of mobile service that subscribers expect to use while roaming, In re: Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers. In March, the Commission classified mobile broadband services (200 kpbs and greater) as information, rather than telecommunications services. In re: Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks. Update (9/27) Verizon reversed course. Adam Liptak, NY Times, Verizon Reverses Itself on Abortion Messages: "Reversing course, Verizon Wireless announced today that it would allow an abortion rights group to send text messages to its supporters on Verizon's mobile network." David Lazarus, LA Times, Corporate propriety yields to free speech: "The company was now trying to work out a new policy that would accommodate the widespread use of text messages but also prevent ostensibly offensive material from traversing Verizon's network -- hate speech, for example, or porn."

Internet Access and Competition Policy

The Department of Justice weighed in on the net neutrality debate and filed ex parte comments with the FCC, In re: Broadband Industry Practices, suggesting that the FCC "should be highly skeptical of calls to substitute special economic regulation of the Internet for free and open competition enforced by the antitrust laws." The filing argues in favor of avoiding regulation and letting the market sort things out.

Letting the market sort out broadband internet access might be less than optimal public policy, if the market for broadband access is not competitive.

When broadband providers have market power in a local market, it creates the possibility for those providers to discriminate against content creators.

In a recent ISP Planet reports, Top 21 U.S. ISPs by Subscriber: Q2 2007, the top 5 providers nationally (SBC, Comcast, AOL, Verizon, Roadrunnner) accounted for 56.5 percent of the total market.

But on a local basis, each local market may be even less competitive. A Consumer Reports survey found that in many markets, there is no competition for broadband service, "The consumer broadband market has been a seller’s market, often limited to a single provider. Our survey underscored the lack of choice: Of readers who used any type of broadband service, 22 percent said they had chosen their type because it was the only broadband option available."

Unlike in other contexts, in telecommunications, does deregulation not encourage competition? Is local broadband service more competitive than sources for organic food?

More links:
Frank Pasquale, Concurring Opinions, Questionable Advice On Net Neutrality: "The DOJ Antitrust Division's just-released public comment on net neutrality (available here) has been getting a lot of press. Unfortunately, it appears that the shoddy analysis that Jack Goldsmith saw in the DOJ's torture memos may also be infecting its approach to net neutrality."

Brett Frischmann and Barbara Van Schewick, Network Neutrality and the Economics of an Information Superhighway: A Reply to Professor Yoo: "Network neutrality has received a great deal of attention recently, not just from legal academics and telecommunications experts, but from our elected representatives, the relevant agencies and the press. Our representatives have held multiple hearings on network neutrality and are actively considering whether to include a provision aimed at preserving network neutrality in pending telecommunications reform legislation. The Federal Communications Commission and the Federal Trade Commission are also considering the issue. The press has been drawn to the debate by declarations that the fate of the Internet as we know it is at stake."

And some coverage of net neutrality issues at the Future of Music Policy Summit:
News.com, Senator: Net neutrality push ain't over yet "Some people say, well, but it's a competitive marketplace, if one of the big interests tries to charge for its pipes..the customer will go elsewhere, it's a competitive world," Dorgan said. "Well, I'll tell you what, you're studying different economics than I am if you think this is competitive

FMC Summit Policy blog: Leveling the Playing Field: how does broadband policy affect musicians?