So, it is certainly not a surprise that the Free Press response to my last post smoothly skips over some fundamental points. On the Free Press homepage, the first thing you see is a technicolor box blaring “Tell Congress: Investigate the Unfair Internet Penalty.” In the Free Press response, this has now turned into a mere “inquiry.” Who could be against that? Especially when these plans are rolling out “under the radar.”

Huh? Time Warner Cable couldn’t have possibly been more transparent about their thinking over the last year, including repeatedly briefing members of Congress and reaching out to interested groups like . . . oh, Free Press. And they have repeatedly made clear that they were listening to constructive comments and views.

Thus, Time Warner Cable’s announcement today that they will spend more time on engaging interested parties, members of Congress . . . and most importantly, their customers by deploying metering tools that help all us become more educated consumers . . . is completely consistent with how they have approached this from the beginning. Bottom line: they have been and are engaged in exactly the kind of outreach and transparency interest groups profess to want.

And I have a lot of personal respect for Ben Scott, but I had to chuckle at the very lawyerly but ultimately inadequate attempt to explain why they were really against usage metering before they were for it. But I suppose I will end on a note of agreement: Ben now says, “As for whether metering is fair — it can be.” Right.

None of us knows with certainty what works best for consumers. As broadband providers, we face daunting and ever-changing challenges in ensuring that we do our level best to provide consumers with what they want, when they want it. But our goal has been, is, and will be to communicate with our customers in an open and transparent manner; to try new models that can be used to attract new broadband users and more equitably spread costs among high and low volume users, and – at the end of the day – to let the consumer make the ultimate choice of whether new models survive and thrive or are thrown into the dustbin of history.

Great. Hundreds of billions of dollars have been and continue to be invested by our industry in the deployment of broadband and now the deployment of next generation broadband; speeds have doubled or tripled in just the last few years; new and spectacular applications keep getting launched; no anti-competitive conduct has remotely occurred; and, in fact, compared to many other industries, the Internet ecosystem seems to be one of the few really healthy, growing, and creative parts of our economy with continued investment and innovation taking place every day. At a time of economic and financial challenges for our country, I for one would rather Congress spend its time on real problems, not fictional ones.

Despite Free Press’s hyperbole, the facts are these: Time Warner Cable has merely suggested that they are interested in conducting a limited set of trials of a new pricing model – in a careful and transparent manner – that may serve the vast majority of their customers better by reflecting the growing reality that some consumers utilize far more high speed bandwidth than others. They have engaged in an open conversation with their customers and other interested parties about how they are thinking through their plans, and I would expect that only after gathering input would they announce more specific plans for what, where and how such tests would be conducted.

While it is certainly appropriate for all of us and anyone interested in the deployment and use of broadband technology to monitor the results of these and similar experiments, we should recognize the Free Press petition drive as the publicity stunt it so obviously is.

Let’s not forget that Free Press previously suggested that consumption-based billing could be an appropriate pricing model for network providers in a filing on network management at the FCC:

[T]hey could also charge by usage (emphasis mine), provide more bandwidth to all users, or actually offer high symmetric broadband speeds.

As well as to the media:

“I don’t quite see [metering] as an outrage, and in fact is probably the fairest system going — though of course the psychology of knowing that you’re paying for bandwidth may change behavior,” said Tim Wu, a law professor at Columbia University and chairman of the board of public advocacy group Free Press.

And, while they have every right to change their minds, what hasn’t changed is that it is entirely appropriate for any actor in the Internet eco-system to test and examine new ideas and approaches that promote consumer choice and enhance the Internet experience for broadband users before making any permanent decisions. The right approach, as Time Warner Cable has done, is to conduct such tests in a transparent way, with full notice and explanation to their customers.

I don’t hold a brief for or against any particular pricing model. I simply do not have all the data to make an informed judgment about consumption-based billing; nor, with all due respect, does anyone else. The whole point of tests, it seems to me, is to learn what works and what doesn’t, and the details matter a lot.

But the “shoot, ready, aim” mentality seems all too prevalent these days. For example, it is somewhat tiresome to have Free Press repeatedly assert that every effort by network providers to examine any new approach or idea in our or related industries is somehow designed to protect against the supposed “threat” of “Internet video.” This is so stale, and so at odds with the facts, that it really should not be necessary to point out the obvious:

• Over the last few years, the use of broadband connections to view Internet video has grown at a faster rate than any other application. According to one estimate, traffic generated by YouTube video in 2008 alone was more than the sum of traffic crossing the Internet backbone in 2000.
• Far from fearing online video, our industry is courting and exploring partnerships to bring Internet video to the television screen;
• Our industry has worked — and continues to work — cooperatively with consumer electronics manufacturers to ensure TVs can receive Internet video by building in the necessary ports;
• Our industry is the largest provider of broadband in America, and we view the health and growth of the Internet ecosystem as fundamental to our success, which means the applications and services on the Internet must thrive too;
• Our industry is aggressively deploying next generation broadband across America in order to enable, not restrict, new applications.

Any one of these basic facts would have been evident simply by touring The Cable Show in Washington, D.C., earlier this month.

I would respectfully suggest that this is precisely the time in which we can and should test new ideas, especially when the evidence demonstrates that such tests are being planned with care and transparency.

• Richard Bennet of Broadband Politics: A sad day for the Internet
• Randolph J. May of the Free State Foundation: Hard Cases Make Bad Law: On Regulatory Bits and Torrents–Part II
• Barbara Esbin of The Progress & Freedom Foundation: Legally and Procedurally Suspect and Misguided as a Matter of Policy
• Scott Cleland of The Precursor Blog: Takeaways from FCC Decision on Reasonable Network Management
• Cynthia Brumfield at IP Democracy: FCC’s Copps: Apply Net Neutrality Principles to Wireless Carriers
• Stacey Higginbotham at GigaOM: FCC Punts on Network Neutrality
• Matthew Lasar at Ars Technica: Reactions to FCC’s Comcast decision come fast and furious
• Drew Clark at Broadband Census: FCC Hammers Comcast For Deception and Unreasonable Internet Practices

UPDATE: Will Richmond at VideoNuze: The FCC’s Comcast Sanction: More Problems, Fewer Solutions Ahead

In response, the NCTA  has released the following statement from Kyle McSlarrow, our President & CEO:

“One need look no further than today’s FCC decision for proof that engineering challenges on the Internet should be solved by engineers, not government officials. In second-guessing reasonable network management techniques (with no notice or guidelines in place) that benefit the overwhelming number of broadband subscribers in America, the FCC has inexplicably elevated the interests of a few bandwidth hogs over everyone else.”

As we further digest the decision, we will be following the reaction from others in the telecom policy sphere and will comment further and share what others are  saying.

To quote from NCTA’s media release:

With the FCC’s 2005 adoption of a Policy Statement concerning broadband service, NCTA said that the Commission has already taken the correct approach – one of vigilant restraint – to ensure that the rapidly changing marketplace for broadband services develops in a way that best meets the needs of consumers. Importantly, the Commission’s 2005 Policy Statement expressly recognized that its broadband principles were “subject to reasonable network management,” NCTA said.

These seem to be the two key phrases: vigilant restraint and reasonable network management. In other words, broadband Internet services have evolved over time, responding to marketplace needs, and for the FCC to impose regulations would be, as the filing says, “likely to do more harm than good.” Further, network management “makes it possible to offer consumers access to the broadest possible array of services, sites and applications.”

The issue of network management has arisen with the growth of peer-to-peer services which are designed not only to download large files for long periods of time but also make their computers available as servers that constantly upload files for use by others. The use of peer-to-peer services by only a small fraction of Internet customers can consume a very large portion of the network’s resources and capacity which can interfere with the use and enjoyment of the Internet by other customers. So, without reasonable network management techniques, heavy usage of peer-to-peer services can degrade the overall speed of Internet access for all customers.

The filing enumerates some of the key points behind this approach:

• Not all applications use bandwidth in the same way.
• Content agnostic management of a network is not “censorship” or an anticompetitive technique to harm other services.
• Approaches to managing networks are best decided by network providers, rather than by the government.

This discussion reminds me of a point made in a Washington Post editorial almost two years ago:

If you want innovation on the Internet, you need better pipes: ones that are faster, less susceptible to hackers and spammers, or smarter in ways that nobody has yet thought of. The lack of incentives for pipe innovation is more pressing than the lack of incentives to create new Web services.

Today’s filing concludes by pointing out that there are a number of open questions about the best way to improve consumers’ experience of the Internet. Regulation would only put up a roadblock on the path to figuring out the right approaches.