More than a year ago, I put up a post expressing my pleasure about how the “net neutrality” discussion had evolved over time. Specifically, I focused on the comments of Vint Cerf between 2006 and 2008, when he seemed to move from arguing that the Internet must be “open and neutral,” to saying that “the real question… is not whether [broadband networks] need to be managed, but rather how.”

My thoughts on the argument were confirmed for me by a panel at CES this past January, entitled “The Internet – How Do We Keep The Road Open.” If you read this account, you’ll note agreement among the panelists that managing networks is important, but so is transparency.

I understand that, as the FCC examines the issue of “net neutrality” (or the “Open Internet”), it isn’t just about network management, but I welcome having a more sophisticated, complex discussion.

So, imagine my dismay when two of my favorite cable shows – The Rachel Maddow Show and The Daily Show – recently took on the net neutrality issue and described it the way it was described back in 2006.

All About Blocking?

On October 23rd, Maddow said, “Telecom companies want to be able to slow down access to some parts of the Internet and to block some others. Essentially, they want the right to privilege the content that they want to privilege for their own telecom corporate purposes.” Maddow’s guest, Boing Boing editor Xeni Jardin, said that net neutrality is about everyone having equal access to all Internet content: “No cable companies, no telcom, should be able to slow that down because what you want access to is against their competitive interest.” [Watch the whole Maddow/Jardin segment here.]

The following Monday, October 26, Jon Stewart devoted a whole segment on The Daily Show to the same topic. He said, “The Internet Service Providers – your Comcast, your AT&Ts – would like net neutrality not to happen so they would have the ability to decide which content and websites get the preferential treatment.”

Let’s start right there. The charge is leveled that cable companies will slow down content that competes with their interests. FCC Chairman Julius Genachowski, in his September 21 speech at the Brookings Institute, listed reasons that he thought net neutrality regulation might be necessary. Blocking competitive content was not one of those reasons. Nor am I aware of any instance of a cable company ever doing such blocking. NCTA’s President & CEO Kyle McSlarrow has said on a number of occasions that our member companies don’t block and won’t block lawful content.

All Bits Are Not Treated Equally.

In addition, Xeni Jardin is being disingenuous and Jon Stewart (I presume) doesn’t know any better. Jardin says, “All packets are created equal.” Stewart says, “Currently everything moves through those tubes at pretty much the same rate. Like, if you’ve got a packet of information from a major corporation like Google that information gets exactly the same treatment as, say, a packet from a little startup company…”

But, in fact, all packets aren’t the same. You wouldn’t want a voice packet, a video packet, an e-mail packet or an image packet to be treated the same. TCP/IP isn’t neutral and never was. There are times when you need to prioritize different packets.  George Ou at Digital Society has done some great work explaining the difference between low-bandwidth and high-bandwidth applications. If you want a dumb pipe, with every bit treated the same, that will significantly affect telemedicine and other advanced services which may require priority treatment. If creating some method of optimized delivery was such a terrible thing, what does this say about services like Akamai, that help make content distribution more efficient, benefiting both consumers and content producers?

Stewart posed the question, “Why are all these people so opposed to this innocuous, populist legislation?” If all that was being discussed was the right of consumers to visit any website they want, or use any legal Internet service they desire, there would be no problem. NCTA has gone on the record many times that our member companies are in favor of this. When Chairman Genachowski proposed the two new principles in his Brookings speech, we applauded efforts to preserve an Open Internet. The trick is that the conversation is more about how and when networks can be managed.

Jardin proposes, “Whenever there’s a fight on the Internet, it’s always good to side with the geeks who actually built the Internet, rather than, sort of, fat-cat telcom lobbyists. You have guys like Vint Cerf… he’s coming out, saying this is a dangerous thing.”

• Point One is that Mr. Cerf has worked for Google since 2005; that company is hardly a little garage start-up, nor are they a disinterested party in telecommunications.
• Point Two is that Professor David J. Farber (the “Grandfather of the Internet”) thinks that net neutrality is not such a good thing.
• Point Three is that we agree that network management is an issue best addressed by engineers rather than policymakers. The cable industry has a lot of engineers of its own. For the past 15 years, cable companies have been able to offer high-speed Internet access thanks to the hard work of these engineers, who still have to manage these networks on a daily basis. Let’s cast our minds back to 1994 and remember that it’s those cable engineers that helped drive all the broadband we currently enjoy.  It was cable that developed the DOCSIS standard and first laid significant amounts of fiber out in the field, ahead of the phone companies.

(It’s ironic that Maddow, who is so publicly a fan of infrastructure, seems to miss this last point.)

The Challenges of Creating Neutrality Rules

As long-time telcom reporter and industry analyst Gary Kim pointed out, the need for management is exactly why net neutrality poses some difficulties:

It is very hard to define and covers a range of business discrimination issues, network management and performance practices as well as potential future services that consumers might very well want to buy, that provide value precisely because they allow users to specify which of their applications take priority when the network is congested.

Kim notes that it’s a good thing for ISPs not to discriminate against the competition, but he is concerned “whether ‘affirmative’ packet handling, as opposed to ‘negative’ packet handling, will be lawful in the future.”

Swing too far in one direction and you create broad draconian rules that stifle innovation. Swing too far the other way and you end up with vague principles that don’t let anyone know for certain what’s allowed and what isn’t.

Finally, let me observe that there is a lot of hubbub about what might happen without net neutrality. I am reminded about a recent tweet from Blogads.com Founder & CEO Henry Copeland.

RT @nickbilton What life w/out Net Neutrality will look like: http://j.mp/2UYL2H ++Umm, wait, there’s no NN law right now.

As he says, when you imagine what life might be like without net neutrality, you might want to remind yourself that we have no such regulation right now.

Earlier this week, Google’s Chief Internet Evangelist Vint Cerf said something that brightened my day.

…the real question for today’s broadband networks is not whether they need to be managed, but rather how.

We couldn’t agree more, since I’ve expressed that same sentiment once or twice or thrice. Network managers know that networks need to be managed. Cerf even explained why:

Network capacity (bits per second or data rate) is a limiting factor in all communications networks. Users cannot send traffic faster than the amount of network capacity available to them. But when users’ aggregate demand exceeds the available capacity of the network, network operators naturally seek to manage the traffic loads… The end result is the potential for traffic congestion, leading to service delays and even outages for consumers.

Cerf then goes on to discuss various methods, such as transmission rate caps, low latency prioritization and bandwidth constraints, but they’re all based on that phrase: “…not whether [networks] need to be managed, but rather how.” [Emphasis added.] I take great interest in these remarks, because I’ve been following his arguments over the last couple years.

For example, back on June 13 of 2006, he appeared on Public Radio’s The Kojo Nnamdi Show. You can find that episode online; if you skip ahead to about 23 minutes in, you can hear Cerf speak of net neutrality for a few minutes. At that time, he argued that innovation will be stifled and users will not be able to freely access content unless the Internet is kept “open and neutral.” He said that the government may need to provide protection. Two years later, it’s unclear what innovation was stifled.

By October of 2007, Cerf was speaking of other concerns, such as at his address at the WebbyConnect conference, which I attended. He said in his speech that “net neutrality” as a phrase has been distorted and that he would clarify what Google was asking for.

• It’s okay to charge for higher capacity.
• It’s okay to address denial of service attacks, viruses and so on.
• It’s okay to provide low latency services.
• As long as all of these practices are done in a non-discriminatory fashion.

Even at this point, Cerf was arguing that network management was necessary, but he had his opinion about what methods ought to be used.  That approach is much better than comments (like this one) that argue that the “management” argument is a scare tactic. There are those who would claim we should just build a bigger pipe. But then you read this quote from a Singapore ISP executive: “Even buying more bandwidth will not work since stuff like BitTorrent is designed to gobble whatever extra bandwidth we buy.”

Cerf specifically mentions that conversations with Comcast engineers have led him to a better understanding of the underlying motivation and rationale for that company’s network management decisions. As we often see, when people examine the capacity constraints we face and the unique challenges of running cable systems, it can contribute to the conversation.

Now that Cerf has confirmed that network management is a fact and a necessity, we can begin to have the broader dialogue about the network management that needs to take place. Cerf argues the “how” of network management is the important piece of the puzzle, but I would suggest the “who” is even more critical – as in, “Who decides what network management practices are reasonable?”

Cerf argues that government should. I think that is the wrong approach. I think it makes more sense for engineers and companies to make those decisions, not government bureaucrats. Those decisions should be based on what methods of network management might be most efficient and which ones would provide the best experience for the largest number of their customers. They should not be based on the dreams and schemes of politicians.

I recently heard one of these people describe network congestion as akin to a mail truck being full. This kind of talk makes my head hurt.

I shudder to think of the regulations that would be dreamed up by the US Department of Network Management.

Coverage of today’s meeting and some reaction to the decision…

• 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

During an Opening Meeting this morning, the FCC issued an adjudication in the matter of “Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications.” The FCC said that Comcast’s “degrading” of certain Internet content was in violation of “federal policies” and were against the policy of reasonable network management.

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.

This Friday, the FCC will hold an Open Meeting and the first agenda item is the complaint by Free Press and Public Knowledge against Comcast. According to an article in the Wall Street Journal today, the agency “will rule that the cable giant violated federal policy by deliberately preventing some customers from sharing videos online via file-sharing services like BitTorrent…”

As I wrote just last week, it’s critical that we can all agree with the principle that “some kind of network management is necessary to ensure a quality experience for our customers.” Once we get past that concept, we can discuss and debate what’s the best way to achieve the goal of a quality Internet experience, but we can hopefully also agree that the government is not the best body to make these decisions.

In this morning’s Washington Post, FCC Commissioner Robert M. McDowell poses the question: Who Should Solve This Internet Crisis? He outlines past network challenges and describes how “engineers, academics, software developers, Web infrastructure builders and others” came together to find solutions. He then answers his own question.

The Internet has flourished because it has operated under the principle that engineers, not politicians or bureaucrats, should solve engineering problems.

P2P apps present particular challenges for network managers, as McDowell acknowledges, and just building bigger pipes doesn’t fix the problem. That’s not to say that this challenge (and others) can’t be addressed. McDowell points out that we need to avoid creating a bigger problem.

Our Internet economy is the strongest in the world. It got that way not by government fiat but because interested parties worked together toward a common goal. As a worldwide network of networks, the Internet is the ultimate “wiki” environment — one that we all share, build, pay for and shape. Millions endeavor each day to keep it open and free. Since its early days as a government creation, it has migrated away from government regulation.

If we choose regulation over collaboration, we will be setting a precedent by thrusting politicians and bureaucrats into engineering decisions.