No Harm Yet for Content, VoIP from Network Owners, Bells Say

Parties aren’t asking for a “heavy-handed approach” to network neutrality from Congress or the FCC to protect the integrity of the traffic on the pipes, VON Coalition Exec. Dir. Jim Kohlenberger said at an FCBA program Thurs. But with job growth and productivity increasingly hinging on an expansive broadband market, it makes sense that “we go out and fix the roof before the storm comes.”

The discussion at the event focused mostly on the potential to generally degrade performance from services using the network, not on the Bells and cable providing their own services. That sparked criticism from Georgetown U. Law Prof. Greg Sidak, who said “there would not be these big economic stakes” concerning net neutrality if degraded service were the only concern.

Degradation of 3rd-party services, generally associated in the U.S. with the Madison River port-blocking incident, is far more common abroad, Kohlenberger said, citing incidents in China, Oman and Canada. Arguments about the need to manage network traffic to protect quality of service for all are moot with VoIP, which tops out at 90 kbps: “It’s just a trickle” on high-speed connections, Kohlenberger said.

Senate Commerce Committee Chmn. Stevens (R-Alaska) earlier compared defining net neutrality to defining a vacuum, said Progress & Freedom Foundation (PFF)’s Randolph May. With that ambiguity, “the adoption of a common carriage model for the broadband era” is likely if net neutrality principles are enacted into law. May cited Sen. Wyden’s (D- Ore.) net neutrality bill (S-2360) for its reference to “just, reasonable and nondiscriminatory rates” - central terms from common carriage policy. Case-by-case adjudication of disputes -- “I'm sure there will be claims of abuse” -- would let the FCC handle the issue “in a much more tailored way” than a blanket rulemaking or legislation, he said. PFF is supporting Sen. DeMint’s (R-S.C.) Digital Age Communications Act (S-2113), largely based on PFF’s proposal and in direct contrast to Wyden’s bill.

Shareholder pressure on the Bells and cable belies the promises of the network owners to leave traffic alone, said Media Access Project Senior Vp Harold Feld. He called such management “Whitacre tiering” after AT&T CEO Ed Whitacre, considered the first executive to announce that network owners should be compensated by application providers. “Companies don’t care about things that don’t maximize revenue,” and rightly so -- but if owners can squeeze more out of 3rd-party firms to deliver the status quo, they will, he said: “Broadband is the oil of the 21st century.” Such tiering will introduce “a hell of a lot of uncertainty into the marketplace” by sending 3rd-party firms scrambling to make access deals with multiple ISPs, he predicted. Feld embraced “common carriage” as a goal for net neutrality, saying it “couldn’t have been all that terrible,” considering the infrastructure buildouts over 2 decades under that regime.

There’s still no evidence network owners would degrade service for certain traffic, said Brent Olson, AT&T asst. vp- regulatory policy. The Bells and cable have “all publicly committed to not block or degrade,” and there’s no definition vacuum, he said, citing the FCC’s 4 freedoms. “If you look under the hood, there’s no ’there’ there,” Olson said: “Let’s not make this a case of medieval medicine” with a remedy that exceeds the malady. Incumbents are all pushing fiber to or near the home, both to provide TV and increase Internet speeds, said Link Hoewing, Verizon asst. vp-Internet & technology issues. If they micromanage traffic, “not only the FCC, but Congress will get involved,” he predicted. Hiding traffic distortion is nearly impossible: “It will be found out in a heartbeat” by “geeks” who will spread the word online, Hoewing said.

CompTel Senior Vp-Regulatory Affairs Jonathan Lee said it was ironic that the incumbents would push litigation as the preferred remedy for service degradation, adding that after-the-fact investigation “does not deal effectively with exclusionary behavior.” He seconded Feld: “I don’t think common carriage is a boogeyman.”

Asked if incumbents face legal barriers to charging application providers for regular service, Olson said no. But commercial transactions for hosting and other add-on services are a reality, and not controversial, he said. “What we're talking about is allowing companies to differentiate their services,” Hoewing said. Net neutrality supporters responded that Bells and cable can’t speak for hundreds of small ISPs, many in rural areas, whose status as the only game in town could give them a strong incentive to degrade traffic. And with open-access conditions on incumbents expiring in 2008, competitive providers will have no power to tilt transactions to their benefit, Lee said: “Isn’t the other side of common carriage mercantilism?”

An overlooked problem in the absence of a net neutrality regime is silencing of speech -- a disproportionately large risk to small entities, Feld said. Comcast accidentally blocked antiwar website AfterDowningStreet.com, he noted: “It took a week [for the site to get back up] when they were trying to organize a time-sensitive rally.” Olson said politics isn’t a network provider issue, referring to Google’s delicate dance with the Chinese govt. to provide search there. May said Feld was “inverting the First Amendment” by saying speakers have a right to use someone else’s network. Does that mean Comcast’s president should be able to block sites he doesn’t like? Feld asked. May said “yes,” since he owns the “soapbox,” but “the marketplace wouldn’t allow it.”