Network neutrality v. platform competition
After two days of impassioned speeches about network neutrality, I am beginning to think that we've been drawn onto the wrong battlefield.
The network owners can always talk about the benefits of vertical integration and the impossibility of calling network providers “essential facilities” (”we're not essential, because competition is always possible!”). They can say that although there's a duopoly in each local market (at best — sometimes there's only one choice of broadband provider), there's no concentration in the national market. They can say they have every incentive to promote innovation and interconnect. They can point to other regulatory structures mandating interconnection and nondiscrimination that appear to have impeded competition rather than encouraged it.
To talk in response about the glories of the end-to-end principle and the importance of facilitating end-user choice sounds weak. All we're saying is that we like the norms of our network better then the norms of their network. They have invested $1.1 billion over the last few years in lobbying designed to support their network.
I don't think the fight over “network neutrality” is one we're going to win.
We need to find higher ground. I think the real fight should be over rights of way and platform competition. There's a clear lack of competition in the last mile — that's where choice has to exist, and it doesn't now. Even the FCC's own figures reveal that cable modem and DSL providers are responsible for 98% of broadband access in the U.S., and two doesn't make a pool. If the FCC is getting in the way of cross-platform competition, we need to fix that. In a sense, we need to look down — at the relationship between the provider and the customer — rather than up at the relationship between the provider and the bits it agrees to carry or block.
Let the dinosaurs block applications. Listen to SBC CEO Edward Whitacre:
Q: How concerned are you about Internet upstarts like Google, MSN, Vonage, and others?
A: How do you think they're going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using. Why should they be allowed to use my pipes?
The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo!or Vonage or anybody to expect to use these pipes [for] free is nuts!
That's the voice of someone who doesn't think he has any competitors. Competition in the market for pipes has to be the issue to focus on, not the neutrality of those pipes once they have been installed. We'll always lose when our argument sounds like asking a regulator to shape the business model of particular companies.
Let's not assume that competition is impossible. There has to be a move towards higher ground that we can collectively make.
brief hiatus
Talking communications law today and tomorrow — back blogging in a couple of days.
The third leg of the stool
I'm focusing on the online implementation of three FCC “social policies” these days: E911, CALEA, and Universal Service.
Two of these three FCC adventures are already under attack:
Nuvio is saying it will sue over E911 (”'No service provider is going to be able to provide a nationwide solution for nomadic VoIP users,' Nuvio chief Jason Talley said in a statement, noting wireless phone providers were given 10 years to meet their E911 obligations.”)
CDT and universities are suing over CALEA.
Who will take on universal service?
In his address to the TELECOM 05 conference yesterday, Chairman Martin blithely said [pdf] that the Commission “needs to revise the way in which it collects universal service monies.”
Revise collection methods? Why not reexamine the entire fund's operation? Who will question what's being funded, and who will reveal where the money is actually going? Who will ask whether there are better, more modern ways to assure that people in rural areas and schools and libraries get the services they need? Who will do the investigative reporting that is needed to shed light on this entire subject? (This is where big media companies really come in handy.) The Federal-State Joint Board on Universal Service is at work — who will have the resources and the stamina to watch the details?
Because it's even more about money than the other two social policies are, universal service is a fraught subject. But continuing the current plan without rethinking it for the digital age would be shortsighted.
Very timely Pulver conference
The agile and perennial-nodes-in-the-network team of Jonathan Askin and Jeff Pulver have put together Peripheral Visionaries for November 10. If you're a student of mine who wants to go to the conference, let me know. It's in DC, but there are trains. And Jeff is flying in from Seattle some band named Herding Cats that you might like. Schedule is here.
I'm on the academic panel that will discuss important regulatory issues intently, intelligently, and earnestly from 4:30-6pm. Sure, the bar may be open then, but (of course) no one will want to miss our session.
Seriously, this is a well-timed and important conference. I feel very privileged to be included. See you there.
CALEA suits filed
A great group of companies and organizations filed with the D.C. Circuit today a petition for review challenging the FCC's CALEA order.
The case will be called COMPTEL v. FCC, and the petitioners are the American Library Association, the Association of Research Libraries, COMPTEL, the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Pulver.com, and Sun Microsystems.
The American Council on Education yesterday filed a separate petition for review of the same order.
It's great to see this initiative get under way. The FCC has arguably overstepped its statutory authority, likely under extreme pressure from law enforcement. More fundamentally, it's time to address whether the extraordinary costs of surveillance to innovation and economic growth are always worth it.
There's been no demonstration that the FBI is having trouble implementing wiretaps, and it cannot be that every other interest in America comes second to security — particularly when the government agencies involved don't appear to be skilled at actually working with the data they already gather.
New meme: catalysis
A catalyst reduces the activation energy needed for reactions. How does it do that?
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It forms bonds with one or more of the reactants and so reduces the energy needed by the reactant molecules in order to complete the reaction
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It brings the reactants together and holds them in a way that makes reaction more likely. When molecules come together in the correct orientation for reaction there is a big reduction in entropy.
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In other words, catalysts change the path of a reaction; they change its mechanism.”
Hmm. If catalysts reduce the energy needed to get a reaction going, and all spheres of human endeavor require speedy reactions in order for evolution to occur, we'd better be looking for catalysts in new places. What's a “catalyst” for music? Could it be rhythmic proximity? What's a “catalyst” for economic growth? (Let's assume catalysts are different from conditions, and worry about how to show that later.) What's a “catalyst” for creativity online?
I'm on a hunt for catalysts.
CALEA and must-carry
This week, the Times reported that colleges (at least) have woken up to the fact that the FCC's broad understanding of CALEA (applicable to all providers of broadband internet access service) covers them. This could cause colleges enormous expense as they reconfigure their systems at DOJ's request to allow them to be easily tappable.
Here's how the FCC's reasoning works: Although CALEA's language clearly excluded internet services (like email and other “information services”), and although the FCC itself has defined wireline broadband internet access service to be an “information service,” broadband access is covered by CALEA.
Why? Because it is a “replacement for a substantial portion of the local telephone exchange service.”
What does broadband access have to do (necessarily) with local telephone service? Well, people used to use local telephone service to get dial-up access to the internet. Now that particular function of local phone service – internet access — has been taken over by broadband internet access service. So under the “replacement” provision of CALEA (which the FCC lawyers are apparently reading while standing on their heads), anyone who is part of the chain of moving end user packets to the internet over their own facilities is covered by CALEA. No exceptions.
Additionally, the FCC argues that the place where law enforcement would necessarily want to intercept communications would be where “access to the public switched network” occurs. They say that the internet is a “public switched network,” even though Congress was clearly intending to talk about THE public switched network of 1994 — the telephone network. This is a huge logical step to take.
It will be very costly for universities to do this. According to the Times story:
Technology experts retained by the schools estimated that it could cost universities at least $7 billion just to buy the Internet switches and routers necessary for compliance. That figure does not include installation or the costs of hiring and training staff to oversee the sophisticated circuitry around the clock, as the law requires, the experts said.
More broadly, the effects of CALEA on innovation and new services cannot be overstated. In a second part of the order that deals with VoIP services, the Commission is saying that any services that provide the “capability” for users to connect to the traditional telephone network (whether they actually do or not) are covered by CALEA. This means these services will have to be designed so as to be easily tappable and generate familiar data for DOJ. This means that the FBI/DOJ will be involved in product design. This includes Skype. Jeff Pulver and Wired are noticing this too.
In a crucial footnote (we academics love footnotes), the FCC states that the “concept of 'PSTN' is one that can evolove over time” — which signals that services that have the capability to connect to the internet will likely eventually be covered by CALEA. Of course, there is no principled distinction between Skype and any other online application. Bits are bits.
A cab driver yelled at me last night (I was inside his cab, it was pouring rain, he was Russian) that Americans never fight back against government. He said “It's worse than communism here. I haven't seen a demonstration in 25 years.” The Commission's interpretation of CALEA takes several sentences to explain, and its implications may not be obvious. But it's worth demonstrating about.
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Since “net neutrality” efforts seem to be striking up against “quality of service” memes, maybe a more fundamental and less collaborative effort is required. I'm struck by Brough Turner's argument that the real fight should be at “Level 0,” at the public right-of-ways that the broadband providers are controlling.
Remember that cable systems have been required to carry local broadcast programming. Three rationales for this: (1) must-carry regulations are content-neutral, so subject to lower First Amendment scrutiny; (2) cable is more like a conduit than a newspaper; (3) risk of monopolization is greater with cable than newspapers.
Couldn't all three of these rationales apply to access to Level O? There's a great risk of monopolization of the home internet access point — there will be only one per each home. Home internet access is much more like a conduit than a speaker — it's just getting information to the user. And it's not as if we'd be requiring some kind of “right of reply” of these access providers. Their editorial control wouldn't be restrained. But if we cared about the vibrancy of online life (individual creative efforts, new applications, new forms of communication) with the same fervor that we once cared about protecting the broadcast industry, surely we'd apply a very broad form of “must carry” to broadband internet access.
In other words, perhaps the debate needs to be reframed from one about “neutrality” to one about “must carry.” Just a thought.
Why Depeering Matters
According to a couple of people who wrote to me, depeering is a big problem that will get bigger as the two mergers (MCI-Verizon and AT&T-SBC) roll on.
The key issue is cost, not (necessarily) content control, although content/application control may be a byproduct. Depeering will allow the two mega peers to make it very expensive for independent actors to reach the mega peers' subscribers. Both Verizon and SBC have voice and video services they want to protect, so it's in their interest to make it expensive for new large voice or video providers to reach their huge numbers of users.
Briefly, backbones connect either through either peering or transit arrangements. If they're peering, backbones agree to exchange traffic with each other (only each other's traffic) at no cost. If they have a transit arrangement, one network pays another for the right to connect. The transit provider then makes sure that the paying network's packets get to their destinations.
If the two mega-peers depeer, then other carriers will have to pay about twice as much to have other backbone providers carry their traffic. This will give all the carriers involved lots of incentives not to allow unauthorized bandwidth hogs (like competing video services) to ride across their networks.
Peering was always a matter of private contractual arrangements, so it's not clear what hook a regulatory agency would have to second-guess a mega peer. (There are no domestic or international regulations that govern how backbone providers interconnect.) You'd have to argue that the mega peer was acting anticompetitively, using its market dominance to extract high prices and drive its competitors out of business. But both MCI-Verizon and SBC-AT&T will argue they don't dominate the market for backbone access (although they may have the lion's share of internet subscribers).
And the mega peers can assert that they're changing the world by making the internet a “quality of service” network. This is the new raging meme. The internet never promised that your packets would get where they were going. Now backbone providers can promise new services (video, voice, data) only to their subscribers, and say they're going to work blindingly fast. Competing backbones won't necessarily provide the same services. This will fracture the internet, if the backbone provider can find ways to survive without interconnection (or by only connecting to networks that agree to the backbone provider's policies).
In the absence of dominant backbones, none of this is a problem. Markets will find ways to satisfy consumers, and users can believe that they're able to “see” the entire internet. It used to be in the interest of backbones to have many many peering relationships to keep their customers happy. But if one or two dominant backbones emerge, they won't feel the same pressure of externalities.
There are now only five Tier 1 (highest level) backbone providers (this is from a 2003 article by Michael Kende): Cable & Wireless, WorldCom, Sprint, AT&T, and Genuity. If the large ones get so large and powerful that they no longer feel the need to interconnect (and can charge high prices for their new services), they can depeer with all smaller backbones, exact high prices for transit, degrade the quality of their interconnection with the smaller backbones, or take any number of other anticompetitive steps to protect their private prerogatives.
So that's why depeering matters.
Should we fear mega peers, or just laugh it off?
In a Sept. 14 filing with the FCC, a company called Broadwing [warning, high Flash content] said the following:
We are concerned that the mergers of two significant Internet backbone providers (AT&T and MCI) with two of the largest providers of high-speed Internet access (SBC and Verizon) will result in two “mega peers” with the potential to de-peer competitors such as Broadwing and dominate the market.
Broadwing operates a fiber-optic network connecting U.S. cities, and offers services (VPNs, managed network services) to a variety of customers.
Verizon responded on Sept. 21, saying that the “transaction will not give the combined Verizon/MCI market power in the Internet backbone business. The combined company will carry less than 10% of North American Internet traffic, it will rank fourth among seven comparable or larger backbone operators, and operators other than those seven will carry approximately 35 percent of Internet traffic.”
What's the significance of a “mega peer”? Wikipedia tells us that peering arrangements are private contractual arrangements that exist between peers that have “roughly balanced” traffic. One peer doesn't charge another for carrying the other peer's traffic and handing it off to yet a third network.
What Broadwing is worried about is that extraordinarily large amounts of backbone will be controlled by two players, who will then decide to “de-peer” — disconnect their networks — from other networks whose favor or traffic they don't feel they need. The result for Broadwing will be that life gets more expensive. They'll have to pay the backbone provider — just like small ISPs have to pay upstream providers — to carry their traffic.
In the words of the Wikipedia hive mind:
De-peering usually results in degraded performance for customers as traffic is forced to take less optimal paths; in the worst case some parts of the internet can become unreachable to hosts on either side of the de-peered networks. This occurred in October 2005 when two backbone NSP's in the USA, Level 3 Communications and Cogent Communications, de-peered following a commercial determination by Level 3 that it was significantly larger and therefore Cogent should pay it to continue peering.
Another fear might be that sufficiently powerful backbone providers (especially those vertically integrated with major broadband providers) could just decide not to connect to the rest of the internet. Verizon/MCI could decide to connect only to AT&T/SBC, and to create a gigantic (but limited) U.S. walled garden for their own proprietary services (no Skype; only approved video — all the Barton-Dingell steps).
But this is absurd, isn't it? Wouldn't it be a terrible business decision for a backbone provider to cut off traffic? Why would any ISP want to do business with a backbone that doesn't actually have arrangements that allow it to ensure the carriage of packets around the world? Don't we have a flat world full of global transactions?
If email doesn't get where it's supposed to go, then people will find other ISPs and (indirectly) other backbone providers.
Laughable, right? There will always be other ways to go to get on the backbone network. If a “mega peer” tries to take advantage of its position to finally put a chokehold on the network of networks formerly known as the internet, people won't stand for it. They'll find other ways to get their packets where they're going. The thing about peering is that there are always other players to peer with.
Back me up here — isn't there sufficient competition in the backbone market? Won't it be impossible for any US “mega peer” to make our experience of ”the internet” into a single huge walled garden?
Visualizations
VisualComplexity is hypnotic. Someone told me recently about an idea relating the complexity of output/expression to the number of rules that generated the output. Maybe there's an ideal proportional relationship between rules and complex output.
From the author of the site:
Complexity is a challenge by itself. Complex Networks are everywhere. It is a structural and organizational principle that reaches almost every field we can think of, from genes to power systems, from food webs to market shares. Paraphrasing Albert Barabasi, one of the leading researchers in this area, “the mistery of life begins with the intricate web of interactions, integrating the millions of molecules within each organism”. Humans, since their birth, experience the effect of networks every day, from large complex systems like transportation routes and communication networks, to less conscious interactions, common in social networks.
Each of these visualizations makes us say, “Gee, how interesting.” But is it possible to claim authoritatively that one complex network is “better” than another? What makes a complex network great? Are there proportionality rules? Or are all complex networks equally interesting?