Content Blocking Policy Memo
Rahul Gaitonde
Peter Barber
Andrew Muir
Andro Gigauri
Executive Summary
The end-to-end principal ensures that the internet stays an open place where there are no barriers between users and it continues the current trend of innovation. This principal mandates that users be allowed to use any service or application they deem on their connection. Over the past few years, there has been a rise in bandwidth heavy applications such as Voice Over IP which allows users to make phone calls, the viewing of High Definition Videos and increased Peer to Peer applications which allows users to share data. Internet Service Providers want to maintain high speeds on their networks but do not want to increase investment to add new lines or make current lines more efficient therefore they have begun to block or slow down some content and applications.
The most famous case of application blocking is when Comcast slowed down the peer to peer service Bittorrent. Users were outraged and consumer rights group petitioned the FCC to stop them, while they were successful in getting the support of the FCC there was little the organization could do to force Comcast. The Internet Regulation group feels that in order to preserve and ensure ongoing innovation the government needs to step in. After looking at a number of different proposals we feel that the best course of action is as follows:
1. Congress needs to codify the Internet Policy Statement which the FCC has issued
2. The FCC must then be given the authority to create a sub-agency Network Monitoring Committee (NMC), to monitor and prevent content and application blocking.
3. In order to obtain proper network data the FCC will selectively monitor the traffic of all ISPs to ensure they do not violate content or application blocking.
4. If users feel that applications or services are being blocked they can file a complaint against the ISP but the Attorney General of the state in which the blocking is occurring must bring all suits. These complaints will be heard by the NMC.
We feel that if the government does not act the internet will lose its openness and become a large walled garden. Users will be forced to pay for everything they want to do and innovation will be stopped. Additionally content creators will be forced to pay high fees to ISPs to allow users to access their content.
I. Problem Definition:
To ensure that:
1. Users are able to connect to the entire internet (no special rates to connect to video websites, to email, etc),
2. Users are able to connect any devices they want to their internet connections (laptop, iPod, video game console, video on demand units, VoIP)
3. Content providers (Google, NY times, and blogs) should be able to provide any service they please as long as it is legal.
These protections however exclude all illegal activity.
I. Introduction:
As Internet is based on the “end-to-end architectural principle,”[i] it is only function – as a network, is to transmit data without any prejudice to its size, type, composition and/or complexity. By looking more deeply into the context of this simple transaction, and bearing in mind the number of users and constant changing pattern of the transmitted data and applications, it becomes obvious that Internet transaction became very complex.
First and foremost, it is important to distinguish between three stakeholders of internet transaction: (1) Content Providers – companies and individuals who create data and applications; (2) Internet Service Access Providers (ISPs) – companies that have network infrastructure in place to transmit data packets; and (3) End Users – individuals and groups that use the transmitted data and applications. This paper centers on ISPs and defines problems associated with their response to some undesirable transactions.
Internet is a business tool and thus a source of income for ISPs. Their goal, just like in the case of any other business venture is to acquire maximum income with minimal expenditures. In order to advance their business objectives and protects their network infrastructure, the ISPs apply content blocking, as a tool. Broadly defined, blocking constitutes an intervention that aims to diminish and/or restrict transaction of content, application and/or services between Content Provider and End User. Blocking, “essentially, comes down to the broadband Access Provider erecting a barrier in either or both directions between an End-User and the Content Provider of his or her choice.”[ii]
In technical terms, blocking may occur because in the following five forms:
A) Blocking downloads from “bandwidth-hungry applications:“[iii] Block may be placed on the applications of Content Providers to disallow End-Users to download data. ISPs fears that a high volume of such will affect the network capacity downloads, which are initiated by the End-Users. There are a few examples of this phenomenon. In the case of Verizon and NAEAL, there was “a decision by Verizon to initially exclude NAEAL, a pro-choice group from using its text messaging service to reach its members.”[iv] On another occasion, “Verizon’s chief technologist said [that] delaying some peer-to-pear traffic may be necessary to prevent voice applications from being unusable.“[v]
b) Blocking downloads from new a Content Provider: A ISP could decide to block the content coming from a relatively new Content Provider. This is done as a preventive measure, with a fear that the bandwidth will lose significant capacity, due to a high traffic. On the other hand, an “ISP [may] have an incentive to first see how an independent Content Provider is coping in a new complementary market. Once this new market appears profitable, the ISP (ISP) could resort to blocking.”[vi]
c) Blocking for competitive reasons: Since ISP may at the same time be a Content Provider, it may benefit from blocking content coming from the other Content Providers (its competitors).[vii]
d) Blocking for legal violations: Blocking may occur when an ISP is convinced that a particular content violates criminal, copyright or other types of legislation. In this case, an ISP makes judgments based on its own interpretation of the law, which may indeed be questionable.[viii]
e) Blocking for non-business related reasons: Although logically blocking for non-competitive/non-business related reasons is not likely to occur, “it cannot entirely be excluded and there could be some situations where ISPs (ISP) would have an incentive to block (irrespective of any discriminatory intent).”[ix]
II. Why is this important?
Blocking results in negative consequences for at list two parties, End-Users and Content Providers. The “end-to-end principle”[x] of internet development “requires that all Internet traffic, whether an e-mail, Voice over Internet Protocol (VoIP) “call,” or a video stream, be treated equally and managed through “best efforts” connections.“[xi] The absence of this equal treatment leaves some End-Users (customers) unsatisfied with the services that they get for the money that they pay. An ISP makes an exclusive decisions regarding what content or application should be made available. On the other hand, Content Providers must enjoy the freedom to disseminate information/applications/content as they wish and the End-User must be able to have access. The New York Times editorial puts it this way “Freedom of speech must be guaranteed, right now, in a digital world just as it has been protected in a world of paper and ink.”[xii] The consequences of blocking may be brutal for some of the Content Providers, since “blocking leads to a loss of economies of scale or network effects which might eventually cause the blocked Content Provider to be excluded from the market entirely.“[xiii]
Federal Communications Commission (FCC) made numerous attempts to both regulate Internet and support network neutrality. Most of the FCC actions have been unsuccessful so far. In February of 2004, Michael Powell, the Head of the FCC made a speech, where he reiterated, that “possibilities arise from the Internet‘s open architecture“[xiv] and that all will benefit if customers get access to the content that they want. He challenged ISPs to preserve “Internet Freedoms,“[xv] by ensuring freedom to access content; freedom to use applications, freedom to attach personal devices and freedom to obtain service plan information (how do I quote this?). He concluded, that “preserving “Net Freedom” will preserve consumers’ freedom to access and use whatever content, applications and devices they choose based on the service plan they choose.”[xvi]
In September of 2005, FCC adopted a Policy Statement, and introduced the following principles: (1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and use 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 (4) consumers are entitled to competition among network providers, application and service providers, and Content Providers. (how do I quote this?)
Some may claim that since Internet is still not largely regulated, the FCC has no power to intervene, and thus it is upon the ISP to determine the operational policies that are applicable to its network infrastructure. In fact, in August of 2008, the “Comcast violated the law when throttling Bittorrent[1] transfers, marking the first time any broadband provider has been found to violate Net neutrality rules. Comcast is widely expected to appeal the FCC’s 67-page order to a federal court to a federal court.”[xvii]
The United States Congress has made several attempts to adopt a special bill and regulate Internet and support network neutrality, but in vein.
III. History
Finding the origin of the network neutrality debate is as easy as examining the innovation of the internet since its development. Companies that create the content on the internet such as Google, YouTube, Ebay have been working at the internet to develop new and innovative ways to attract users. The Silicon valley High-tech entrepreneurs have been producing various tools to contribute to a very large innovative playing field. On this field of innovation competition are the applications like Google Earth, YouTube, MySpace, and voice communication services such as Skype. The underlining theme of network neutrality is the advent of new technologies of content and applications attracting a huge amount of user consumption. Just like any other network in history, i.e. railroads, waterways, even air travel, consumers and providers are faced with the task of how best to cope with increased use. Ultimately, innovation whether produced by ISPs or Content makers is integral to the proponents of network neutrality.
The history of network neutrality and issue of network management began in the late 1990’s and near the top of many Washington agendas since. The aroused attention stemmed from the thought that internet provision could be too vertically integrated[xviii]. Meaning those who provide the internet service providers (ISPs) like Verizon were also responsible to the cable infrastructure in which the service ran through. Naturally, this idea was troubling because of the possibility of manipulating the network from one end (provision) to the other end (consumption), thus the network neutrality debate. It is essential to understand that this analysis is concerned with the limitation and/or blockage of the internet content to the users. The most effective way of creating network neutrality in light of the current circumstance would be a comprehensive restriction on ISPs that impede or discriminate user content or applications. This practice is interpreted as the most intrusive and offensive byproduct of the issue of network management. Also at the base of this issue is the basic user behavior in response to the rapidly changing internet environment. The three parties that this analysis mainly concerns itself have all made significant responses as a result of changing consumer behavior. Internet content users have began to value some information provided on the internet more so than others. As a result content makers, such as YouTube and Google have innovated to satisfy a significant demand. Also in this mix is the ISPs like Comcast who have work to extend service and increase speeds.
Tim Wu best conceptualized the network neutrality debate when he likened the issue to an electrical grid.
“The electrical 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”.[xix]
As a result of the internet’s blazing emergence, Network Neutrality advocates such as the client, seek for two things:
The overall prohibition of blockage of content and/or applications
The limitation or refrained ability of ISPs to vertically integrate into the production of content and/or applications.
The issue of blocking must also be considered from the perspective of the economists to best summarize the ISPs stance. Blocking is a fundamental way ISPs, just as content users do, value different packets of information consumed. The content user equally values certain packets of information more so than others found on the network. Why shouldn’t the ISPs have the right to also value those same packets of information from the broadband provider perspective.
In short the advocates of network neutrality wish to place a “ban on blocking of and discrimination against applications and content”. The fundamental element of the network neutrality issue can be boiled down to the idea of blocking and discrimination of content. Today, we have the numerous exchanges of proponents and opponents on the issue as well as the potential for legislation in the 111th Congress.
IV. Current Environment
Section 1:
The Supreme Court’s June 2005 Brand X decision made clear that content and applications providers could no longer count on regulation to guarantee access to cable modem and DSL systems. (Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 2005). This legal precedent does not bode well for our client. The Snowe-Dorgan act, which wanted to legally bar network providers from engaging in content discrimination and access tiering to “legal content” also failed to pass through the legislature. This means that technically, network providers can legally engage in access tiering as long as there is disclosure.
Section 2:
In the fall of 2007 many Comcast users began to notice that their download speeds would diminish precipitously when using the peer to peer client Bittorrent. Users were using this service legally but Comcast felt that it used up too much bandwidth so began to slow them down regardless of if it was a high usage period or a normal or low usage period. After a number of users complained and a story by the AP, the Free Press and Public Knowledge, a technology centric consumer rights group brought up a complaint against the company to the FCC. In turn, the FCC held numerous meetings with all parties involved, and external expert. The final ruling came in August of 2008; it simply stated that Comcast violated the FCC’s Internet Policy Statement and should stop however, the FCC lacked the ability to force them to stop since their power to regulate this issue is not clearly defined. Comcast responded to the request by appealing the issue and a new hearing date has not yet been set.[xx]
V. Stakeholders
Internet users-consumers of the internet nationwide whom use the technology for various production reasons. Users ranging from families, small businesses, and individuals using the breadth of the internet to facilitate needs. With the advent of email as a significantly accepted form of communication many find this as a near daily necessity. In addition to daily users of the internet are other accepted stakeholders such as Internet Service Providers (ISPs) whom create the technology and transmit in its various forms for consumption. These talented technicians produce the internet across a wide range of infrastructure with varying capabilities serving millions of consumers. The third stakeholder in the issue of network neutrality are the content makers. Innovators that have developed new internet technologies that has helped propel the internet as the fastest growing form of communication in history[xxi]. These content makers for example include innovators like Google, Ebay, voice over networks like Skype, and internet communties millions strong such as Myspace and Facebook. The insatiable appetite for the internet traces back to the content makers development of new innovations to attract content users. The maturation of the internet marketplace is also found within these same innovators. Companies like Ebay and Amazon have harnessed the power and popularity of internet use to establish a marketplace projected to yield $204 billion this year[xxii]. So as imagined, the diversity of consumption is wide, the requirements that each consumer maintains also contributes to the contentious character of the network neutrality issue. Historically speaking the debate maintains a two versus one model of network management and consumption. On the one isolated side of the model are ISPs and on the other side both content users and content makers contribute similar feelings on the matter of specific provision, value, and blockage of content.
Content Makers- composed on individuals and high-tech companies who seek to produce applications and information for the use on the network
Internet Service Providers- those companies with an established infrastructure, pipes, tubes, fiber-optics technology constructed to provide information packets for user consumption
End-Users-individuals and groups that utilize the aforementioned packets of information
VI. Criteria
Economic
· Cost-Benefit Analysis of policy implications
· Benefits
o The integrity of the end-to-end user is maintained.
o End users have access to all legal content on the Internet.
· Costs
o How much “red-tape” is created?
o How high are the transaction costs inherent in new legislation, a new agency or new FCC regulation?
Legal
· Does the proposal or regulation in compliance with Supreme Court precedent in reference to the Brand-X decision of 2005?
· Is legislation realistic or politically viable in reference to the recent Snowe-Dorgan legislation of 2006?
Technological feasibility
· Are proposals physically possible in regards to investment in infrastructure and technology?
· Is the oversight or lack of oversight associated with the specific proposal plausible? Can a new agency, new legislation, the FCC or the free market efficiently safeguard these end-user principles and allocate resources?
Equity
· Does everyone, especially end-users, have equal recourse in the new proposal?
· Is there transparency and accountability in the new legislation, agency, FCC and current environment?
VII. Policy Alternatives
1. Status Quo Policy Alternative
An important reason for the Internet’s growth over the last decade is the “end-to-end” principle that networks should confine themselves to transmitting generic packets without worrying about their contents.[xxiii] This idea is that low barriers to entry along with reliable and robust information already exist on the internet and any attempt to delineate from this model intentionally or unintentionally would have serious repercussions for the current viability of the internet in the future. The status quo is currently the most propitious environment for all content users and applications (like Google and Yahoo) to compete and vie for clients, information and technological advancement.
There are two imminent threats to the “status quo”. The first is from government itself. Ironically, most of the government intrusions to date seem intent on maintaining the integrity of this end-to-end principle. This past February the FCC was “considering taking steps to discourage cable and telephone companies from discriminating against content providers as the broadband companies (Verizon, AT&T, Comcast) go about managing heavy Internet traffic that they say is clogging their networks”.[xxiv] This is not necessarily a good thing. In 1887 the Interstate Commerce Commission (ICC) was touted as a way of protecting the public from abuses of the railroads, but in practice it reduced competition in the railroad industry, effecting transfers of wealth from the general public.[xxv] The potency of this argument is contingent on the premise that internet landscape is not a “2nd best market” and that “last mile-providers” have robust competition between one another for costumers and have relatively low barriers to entry.
The second threat to the status quo comes from more usual suspect, otherwise known as the broadband companies. The recent FCC clamp down on Comcast’s broadband discrimination of the peer-to-peer protocol, BitTorrent (a file sharing service that makes it easier for consumers to upload bandwidth-intensive videos), explicitly shut-down a legal content provider in order to buffer its own network. AT&T does the same thing but so far only to shut down illegal content users (i.e. hackers who crash servers, child pornography).[xxvi] Destroying property is as illegal on the internet as it is off the internet. The more pressing legal problem at hand is where to draw the line between unreasonable discrimination that are “pernicious” to economic vitality and reasonable network management.
These networks often have two very legitimate reasons for slowing down or even shutting down particular internet traffic. The first and most common reason is to free up one’s network of high bandwidth content users, like peer-to-peer protocol to upload video, music or other date, that subsequently clog a network. This is exactly the same reason Comcast tried to shut-down, unsuccessfully, its high-bandwidth users almost a year ago. This is a very legitimate argument, our government engages in this sort of discrimination every day. Drawing on more anecdotal evidence, the New Jersey Turnpike from Exit-10 to Exit-2 is split up into two physically separated lanes; one lane for tractor-trailers and another for passenger automobiles. The presumption is that the trucks take up more road (analogous to a network’s bandwidth) and therefore have to travel in the slower lane. What Comcast did last year though, was a little more “capricious and arbitrary”. It would be tantamount to asking all Ford Expeditions to drive in the slow lane, but allowing Chevrolet Suburbans drive in the fast lane.[xxvii]
The flipside of this is not to slow down a user’s access to the internet but rather to speed up one’s access, at a premium rate, essentially creating a “walled-garden” of sorts. This was exactly what AOL’s business plan was in the late 1990s, essentially a proprietary “fast lane”. Arguably, AOL failed because it could not keep pace with a rapidly expanding internet – there were millions of ISPs (Internet Service Providers) willing to do exactly what AOL did, but for free. Even a firm as large and well-capitalized as AT&T, Verizon or Comcast will have difficulty developing a stable of content and applications that will be as appealing as the content and applications available on the unfettered Internet.
The second conflict of interest is the potential for anti-competitive blocking, especially in the areas of telecommunications and video. For instance, AT&T in the 1930s promulgated a tariff that precluded consumers from attaching any device to their phone lines (regulated as a “natural monopoly”) that was not specifically approved by the company.[xxviii] The network providers also know as the “last-mile” services would have a strong incentive to block applications like YouTube or Skype that provide services that compete with the networks own businesses. At an extreme, blocking can keep a better or cheaper product like VoIP (i.e. Skype) from coming to the market at all. “Access tiering”, in which network owners charge Web sites and application providers more for premium service has the dangerous potential to be a guise for blocking legitimate and competitive applications like Google. The content discrimination that Comcast engaged in about a year ago is an incipient form access tiering.
The “status quo” proposal argues that the intrusion of regulatory agencies like the FCC is superfluous intervention in the market. In a 2005 interview with Business Week, Mr. Whitacre (then CEO of what was formerly SBC) created a firestorm of controversy when he argued that large Internet firms like Google, Vonage, and MSN should pay his company for the privilege of reaching SBC’s customers.[xxix] What he failed to realize was that Google does pay its relative share, and in fact adds intrinsic value to the network.[xxx] Who would want to use an ISP network that did not have Google? The presumption here is that a consumer or “content user” can readily switch network providers. In other words for this premise to work there needs to be a robust market for networks providers with little collusion. There is no need for regulators to draw some arbitrary line between “unreasonable discrimination and reasonable network management”, because the free market will do it automatically through its natural allocation processes.
2. Legislation and Judicial Policy Alternative
Regulation of Internet: This policy alternative suggests regulating Internet broadband through a Congressional legislative action. It is important to bear in mind though, that the subject matter of the regulation (internet broadband and its use) will change as Internet develops. Thus there is an assumption that the legislature may need to revisit the regulation.
Congress to Regulate: Discussions regarding net neutrality have gone all the way up to Congress. Nowadays, net neutrality represents a highly politicized public policy issue, thus it is believed that the resolution of the issue will have to take place in the agency of highest political power – Congress.
Protection for all parties involved: This policy alternative provides for the right of Content Providers and End-Users to file a claim in the court. Judicial review of the issue will guarantee that the rights of all three parties (including the ISP as a respondent) will be exercised and protected through a fair trial.
Policy Steps by Sequence:
1. Congress to pass a bill (amendments to the Communications Act of 1934), in which it will define and disallow blocking of content.
2. FCC to establish guidelines which determine actions that constitute blocking in detail (bearing in mind reasonable limits (restrictions) of internet usage):
a) Freedom to access content Restriction: -only legal content -limits to service contracts to ensure service quality[xxxi]
b) Freedom to use applications Restriction:-exceed service plan limitations -harm provider’s network[xxxii]
c) Freedom to attach personal devise Restriction:-service plan limitations-no harm to network no theft of service[xxxiii]
d) Freedom to obtain service plan information “One of the shortcomings of today’s broadband policy is that it does not seek to promote greater awareness of broadband offerings and enforce carrier representations.”[xxxiv] “the FTC can contribute greatly to broadband policy by promoting a truth-in-advertisement model”[xxxv]
3. FCC to establish a position of a Network Neutrality Defender (NND). NND to help public and groups with (a) mediating claims regarding blocking related issues with particular ISPs and (b) filing law suits against ISPs, if mediation is not successful.
4. Content Providers, and End-Users will enjoy the right to file law suits against a ISP. The court will be able to review the fact of blocking, based on the legislation and FCC guidelines and make a final decision regarding the subject matter of the dispute.
Note: The decision of the court could require an ISP to unblock the content and pay attorney and court fees for applicants. It is the recommendation of the team to avoid legitimization of the possibility of any legal compensation for damages caused by blocking, since this will push many Content Providers and End-Users to seek for the compensation and act in a way that would provoke ISPs to block particular contents.
Anticipated Results:
a. Network neutrality sustained (prevention of blocking because of a possible legal action against an ISP).
b. Legal rights of Content Providers, PAPs and End-Users protected through a fair and just legal process.
3. FCC regulation and oversight Policy Alternative
Currently the FCC has the authority to deal with all Internet related issues, however there is actually very little they are able to do about it. This poses a major problem for the organization, while congress has given them authority to regulate internet policy under section 230(b) of the Communications Act of 1934. FCC commissioner Robert McDowell said it best in his dissenting statement in the Comcast Bittorrent case:
“Nothing regulating Internet network governance has been codified in the Code of Federal Regulations. In short, we have no rules to enforce. This matter would have had a better chance on appeal if we had put the horse before the cart and conducted a rulemaking, issued rules and then enforced them.”[xxxvi]
While the FCC does not have the authority, we believe that they should be given it since they are in the best position to conduct any regulatory action. Congress should pass legislation that codifies the Internet Policy Statement, specifically these four main points:
· To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
· To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
· To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
· To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.[xxxvii]
Once these four points come into law ISPS will no longer be legally able to block content. In addition to these four points, they should also be given the power to fine violators.
In order to protect the ISPs against false claims of content blocking and if necessary to collect the data to prove content blocking the FCC should also install network monitoring devices or “black boxes”. These “black boxes” will be installed on connections of all of the major ISPs and will be installed in secret therefore the ISPs will not know where they are and will not be able to selectively block to locations. These “black boxes” are necessary due to the fact that ISPs have not been forthcoming on revealing their network data and have in the past claimed to only limit connectivity during “peak periods”; this has been found out to be false. In addition to providing necessary network information they will also allow the FCC to act proactively and stop blocking right away, instead of having to wait for complaints by customers. The black boxes will be paid for by using funds gathered from the Universal Service Fund.
Anticipated Results:
a. The ISPs knowing that they are being monitored will not block or slow down content.
b. Innovation will continue and thrive since there will be no shift from the current system.
c. In order to ensure faster speeds the ISPs will invest more in there infrastructure.
4. Independent Regulatory Agency:
This alternative recommends the commission of an independent regulatory agency formed with the legal authority to enforce regulatory practices. With special support from the Federal Communications Commission (FCC) regulatory policies this agency serves the interests of the network neutrality stakeholders. With the ever changing landscape of the internet, the issues of network neutrality and network management should be provided with a highly responsive entity to accommodate the complex requirements of its stakeholders.
The divestiture of FCC responsibility will serve multiple purposes to benefit the wide needs of the issue. The case against continued primary FCC oversight can be identified by three themes: time responsiveness, qualification, and the issues increasingly politicized nature. In order to facilitate the increasingly needs of the issues stakeholders, (ISPs, Content Users, and Content makers) the independent regulatory agency will be comprised of stakeholder representatives nominated by the FCC and with Congressional (House) approval.
The agency shall concentrate on the establishment of principles to guide the behavior of interested parties and to remedy issues and concerns of its members.
Furthermore the regulation practices administered by this agency in three forms:
1. By utilizing the agencies established rules to manage and exercise regulatory power
2. The agency receives necessary assistance from the FCC to protect stakeholders and agency itself from interest groups or other agencies
3. The commission will remain governed by consensual agreements regarding all decision making
Steps of administering regulatory practices:
1. Transparency of information and decision-making for all agency members
2. Democratic nature of agency members that creates timely responsiveness to groups involved.
3. The agency will concentrate on the procedural aspects of network management, deliberate response to facilitate the needs of the stakeholders. Not a substantive outlook, which would pay attention solely on the ideals of network freedom, freedom of information, or expression that, would create biases and possibly open up Pandora’s Box. A procedural approach that concentrates on the methods of working through agency specified principles to mitigate issues of concerns.
4. Institution mechanisms, such as commissioned review, requiring each member to provide reasons, justifying member actions.
5. Additionally these mechanisms should follow major procedures and principles set forth by the regulatory agency.
6. In addition, an establishment of FCC reviews of contentious decision and another authoritative body to mitigate issues.
Possible outcomes of instituting independent regulatory agency:
1. Divestiture of FCC responsibility will provide the controversial issue the attention it commands
2. It is possible that the agency will not be strong enough without the significant authority of a governmental agency
3. The commission could allow for unbiased, non-political, informed policy decision making that could significantly improve the net neutrality issue
4. A commission composed of engineers, users, and content makers will produce qualified, controlled, and authority on the issues at hand
VIII. Policy Recommendation
After looking at the problem and all of the different policy alternatives, it becomes clear that maintaining the status quo is not a viable option. Not only have the ISPs tried to block content they have succeeded in doing so until they were asked to by the FCC. More alarming is that the FCC or any other group or agency, does not have the power to mandate that they stop it only has the power to ask them to stop. We believe that in order for innovation to continue on the internet the ability to freely connect, send and receive data must be preserved and cannot be threatened. Allowing the status quo to continue is not in the best interest for our client and we believe that there needs to be government intervention.
Unfortunately, the solutions mentioned above each have weak links; however, by taking the best parts of each of the solutions a truly encompassing solution can be created. The first thing that needs to happen is that Congress must codify the Internet Policy Statement, which was recommended by alternative 2 and 3. Instead of having the FCC arbitrate conflicts the FCC should instead appoint and supervise a separate committee (Network Management Committee or NMC) which will be made up of experts. The NMC will have the jurisdiction to hear any complaints by end users, content providers, ISPs or any other interested party. (It is important to note that the complaint against Comcast for blocking user access was brought by the group Public Knowledge which is a private consumer rights group not the users who were effected or the representatives of the service that was being disrupted.) This group will be formed using the guidelines presented in the fourth policy alternative. The ruling of the NMC can be appealed to the FCC, which will be able to act, as a final decider. The FCC will have the option of not accepting an appeal if they believe that the outcome will not be changed or they feel that that a re-hearing is unnecessary.
In order to ensure that ISPs are not infringing on the rights of users the FCC will install network-monitoring devices on the connections of all of the major ISPs. These devices will not collect user specific data but only record the types of services, which are being used, and the speeds to ensure no blocking, or slow downs are occurring. These devices will be used to not only proactively go after ISPs but also as crucial data sources if a complaint is brought before the committee. Additionally these boxes will be places in secret locations to ensure that ISPs are not selectively giving better service to the boxes. The funding for these devices will come out of the USF and the staff / agents of the NMC will do the monitoring of the service.
The anticipated results of this are that innovation will continue to occur since content makers know that they will always be able to connect to users. With blocking of services out of the picture ISPs will be forced to increase investment in broadband lines in order to increase speed and they will be forced to find other ways to maintaining efficiency. By making the NMC a non-political committee of experts their decisions should always be in the best interest of consumers while ensuring ISPs are not also being discriminated against.
[1] Bittorrent is a peer to peer service that allows users to share videos, documents, pictures, and software across multiple users. It is mostly used to share very large files since the program allows users to accept small pieces from multiple users and then assemble the parts back into the whole.
[i] Filomena Chirico, Ilse M. Van der Haar and Pierre Larouche Network Neutrality in the EU (September 2007). TILEC Discussion Paper No. 2007-030, p 5. Available at SSRN: http://ssrn.com/abstract=1018326
[ii] Chirico, Filomena, Van der Haar, Ilse M. and Larouche, Pierre Network Neutrality in the EU, 5.
[iii] Ibis., 36.
[iv] Phil Weiser, The Next Frontier for Network Neutrality. Administrative Law Review, Vol. 60, No. 2, 2008; U of Colorado Law Legal Studies Working Paper No. 08-05. p 3. Available at SSRN: http://ssrn.com/abstract=1080672
[v] Declan McCullagh, “FCC finalizes Comcast’s filtering penalties”, CNET Networks, Inc. August 20, 2008, http://m.news.com/2166-7252_3-10021222-38.html
[vi] Chirico, Filomena, Van der Haar, Ilse M. and Larouche, Pierre Network Neutrality in the EU, 36.
[vii] IBID
[viii] IBID
[ix] Ibid
[x] Weiser, Phil,The Next Frontier for Network Neutrality, 9.
[xi] Ibis. 5.
[xii] Editorial, “The Verizon Warning”, New Youk Times, Opinion. October 3, 2007, http://www.nytimes.com/2007/10/03/opinion/03wed1.html?_r=1&oref=slogin
[xiii] Chirico, Filomena, Van der Haar, Ilse M. and Larouche, Pierre Network Neutrality in the EU, 37.
[xiv] Michael K. Powell, “Preserving Internet Freedom: Guiding Principles For The Industry”, FCC, February 8, 2004, p 3. http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf
[xv] Michael K. Powell, “Preserving Internet Freedom: Guiding Principles For The Industry”, 5.
[xvi] Ibis., 6.
[xvii] Declan McCullagh, “FCC finalizes Comcast’s filtering penalties”.
[xviii] IBID.
[xix]Tim Wu, “Network Neutrality Faqs,” Tim Wu, http://www.TimWu.org.
[xx] Federal Communications Commission, “Memorandum and Opinion RE: Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications”
[xxi] Tim Wu, Network Neutrality, Broadband Discrimination. Journal of Telecommunications and High Technology Law, Vol. 2, p. 141, 2003. Available at SSRN: http://ssrn.com/abstract=388863 or DOI: 10.2139/ssrn.388863
[xxii] Open Internet Coalition, “Testimony,” http://www.openinternetcoalition.com/index.cfm?objectid=C4D78BD0-1D09-317F-BBC0955F4B7DEEA3.
[xxiii] Timothy Lee Ph D., Princeton University. Network Neutrality. Cato Institute. May 2, 2008 p. 1
[xxiv] Stephen Labaton, New York Times. “F.C.C. to Act on Delaying the Broadband Traffic” Febuary 25, 2008.
[xxv] Tim Wu. Oxford Encyclopedia of Legal History. “A Brief History of American Telecommunications Regulation”.
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=159088
[xxvi] Eric H. Loeb, Vice President, International External and Regulatory Affairs, AT&T. GMU LECTURE ON INTERNET GOVERNANCE AND SECURITY. 10/2/08
[xxvii] Lawerence Lessig. Code. Basic Books. New York, NY p.1-25
[xxviii] Wu, Tim. Oxford Encyclopedia of Legal History. “A Brief History of American Telecommunications Regulation”.
[xxix] Roger O. Crockett. “At SBC, It’s All About ‘Scale and Scope.’” Business Week online extra, November 7, 2005.
[xxx] Yochai Benkler. The Wealth of Networks: How Social Production Transforms Markets and Freedom. Yale University Press, New Haven, 2006.p. 158
[xxxi] Michael K. Powell, “Preserving Internet Freedom: Guiding Principles For The Industry”, FCC, February 8, 2004, p 3. http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf
[xxxii] IBID.
[xxxiii] IBID
[xxxiv] IBID
[xxxv] IBID
[xxxvi] Robert McDowell, “Dissenting Statement RE: File No. EB-08-IH-1518, WC Docket No. 07-52”
[xxxvii] Federal Communications Commission “Policy Statement: FCC 05-151”
