I can live with the internet as a best efforts network. I can live with the internet as a regulated utility. What I absolutely cannot stand is the idiocy of the current regulatory scheme that allows broadband access providers to justify the deregulated state of a competitive best efforts environment because they need to provide a public utility.
Case in point, Comcast’s recent actions of cutting off “bandwidth hogs” and purportedly throttling BitTorrent traffic to its subscribers (Comcast denies it targets BitTorrent traffic). Comcast in its user agreement explicitly reserves the right to cut off users using “too much bandwidth” — although Comcast refuses to say how much bandwidth is “too much.” Comcast defends its actions (including the secrecy of the bandwidth limit) on the grounds that “bandwidth hogs” overload the system capacity and thus slow down everyone’s use of the system.
As I discuss below, Comcast and the other broadband providers are speaking out of both sides of their mouths. They claim they have no liability for anything and should not be regulated because they are providing “best efforts” services and everyone knows it. But when they want to cut off users, tier traffic, or indulge in other behavior that sticks it to subscribers they haul out the “Quality of Service (QoS)” and “critical infrastructure” arguments. “What about voice?” They cry. “What about poor crippled Tiny Tim and his medical monitoring unit, cut off by some bandwidth hog downloading pirated child pornography and Al Qeda instructional videos (which, we will admit, makes a very interesting mash up when viewed via deep packet inspection)? You have to let us do whatever we want and charge whatever we want because people are relying on us for critical services.”
Of course, historically, companies that provided critical services were “public utilities.” At which point, the telcos and cable cos amazingly morph back into laissez faire “best efforts” providers and subscribers need to know there are no guarantees and that which we tell you three times may or may not be true.
My further analysis of the amazing regulatory chameleon, the private public utility, below….
Once upon a time and long ago, we had these things called public utilities. They provided all manner of nifty services, such as electricity, voice telephony, water and so forth. Because we absolutely relied on this infrastructure for our quality of life, the government either provided it directly or closely regulated it as a “public utility.” Indeed, they were so important they were “affected with the public interest.” In exchange for a healthy guaranteed rate of return (usually about 10%-15% profit), these public utility providers had to provide service equally to everyone, at reasonable prices derived in an open and transparent way under the watchful eye of the regulator. Most importantly, because our physical and/or economic well-being depended on the system working all the time and in predictable ways, public utilities needed to be reliable. They even had a special saying about this reliability: “five nines reliability.” That means 99.999% reliable. That’s a higher standard even than Ivory Soap, which as we all know is only 99.44% pure.
Then along came the Internet (back when it was still capitalized, as in “the Internet is a network of networks”). The Internet was very explicitly a “best efforts network.” People providing internet service offered to try to send your packets and to try to deliver packets intended for you. That was it. Heck, the service provider didn’t even offer speed. That was up to the subscriber and how much the subscriber wanted to spend on a modem (and whether the subscriber had a decent phone line). If you wanted something more reliable, like in public utility land, then you used something else or paid through the nose for a service that was a “telecom service” and therefore regulated as a public utility.
Because the internet (now so common it lost it’s proper noun status and became a mere common noun, although it got to keep its article as a consolation prize) enabled so much good stuff, it became very popular. Lots and lots of people subscribed to companies providing “internet access.” People began to move more and more of their business and daily activities “online.” Soon (surprisingly soon), the internet became a critical part of the economy and necessary to our quality of life. Also, as the result of various regulatory decisions, the number of providers of high speed internet service (aka “broadband”) dropped to a modest handful — usually a cable provider and a telephone provider.
But despite the lack of competition and our increased dependence on high speed internet access, it remains a best efforts network. Indeed, it remains so deregulated that the providers make you sign agreements to waive away any rights you might think you have to rely on their advertising promises. So even though Comcast advertises that you have an “always on” broadband connection that will let you “surf the web” and do whatever you want and super-speeds for a totally “Comcastic” web experience, Comcast can still cut you off without warning, throttle your traffic, block specific content or applications, all at its own discretion, without informing you, with no rights of appeal, and subject to change without notice. Hey, if you don’t like it, you can always switch, right?
One would think that if I sign a service agreement that promises me 5 megabits per second download all the time — and goes out of its way to focus on all the wondrous high-bandwidth things I can do with this always on connection — that I could rely on the system working as advertised. Sure, there is a little asterisk directing me to fine print or a quick mutter on a commercial that my speeds vary based on network traffic. But none of that tells the average unsophisticated user who is being targeted with promises of always on high speed that Comcast can, without warning, cut off services or traffic because your attempt to use the network as advertised is screwing everything up.
The Technical Limit
Comcast and the other cable cos have technical limitations, arising in part from the fact that they primarily built their networks to be one-way “push” cable networks, and only layered on broadband as an afterthought. The ability to provide broadband services was a happy addition to the upgrades to increase channel capacity (to meet the competitive threat of DBS). Area connections are centralized in cable head ends, and the overall architecture requires all users in a head end to share total network capacity. So if I am slurping in huge amounts of data, there just isn’t as much room left for my neighbors to slurp down different data.
Why build a network like this? In part, because networks were historically built with an assumption that user traffic was “bursty.” I send something, wait for a reply, download the information (like a web page), then my computer interprets the info, then I may reply. Because no single user is taking up more than a few minutes of time actually sending or receiving data, I can safely share capacity around. And, since this is best efforts, users get used to the idea of congestion delays when traffic management problems do happen.
All networks build this assumption into their design — unless you want to get a dedicated commercial grade connection and pay through the nose for guaranteed speeds (and even here, you’re just getting better best efforts, because there is too much of the network the provider doesn’t control). Networks give their speed assumptions as the average speed, with expected peek load speeds much slower and expected low-use times somewhat faster. Also traditionally, the delay didn’t matter that much, as most services were fairly tolerant of delay. But increasingly, people have shifted stuff to the internet that (a) they depend on, and (b) has little tolerance for delay (“latency”).
Some networks are better than others at handling these issues. Cellphone companies, for example, are pretty wretched on this. The demands and wireless capacity of a network designed for voice don’t work real well with the demand for all you can eat data traffic. FIOS handles things rather well, OTOH, because it is fiber and built from the get-go to handle the combination of data, voice and video traffic. Even here, however, you run into inevitable limitations in the network on capacity — not necessarily last-mile capacity, but the capacity of routers and the broader network to handle non-stop high-traffic volumes.
Public utilities addressed the demand problem by being extremely reliable and having differentiated billing to encourage people to spread the traffic around. For example, long-distance calls used to be a small fortune by day, and only modestly outrageous at night. And you paid on a per minute (or “metered”) basis. Electricity does the same thing, with the cost of energy higher in high-demand times then at lower demand times. Please note this was not tiering by application or by source or any of the other things that broadband providers want to do absent network neutrality. It was indeed metered, but everyone paid the same metered rate no matter who you called. Indeed, it was one of the critical aspects of public utility regulation that rates were “reasonably non-discriminatory.”
The Market Constraints
Cable and telcos aren’t trying to go back to metered pricing for a very good reason — their customers hate it. Despite a boatload of economists who will explain to you that you should like metered pricing because you only pay for what you get, people prefer to buy capacity through a one-time monthly payment. They will cheerfully buy bundles of minutes and overprovision to prevent overcharges in the mobile wireless world to have the certainty and convenience of a monthly payment. They will accept a limit on speed as long as they are paying one price per month and getting what they are promised. But they don’t want to go back to differentiated metered pricing that would prompt them to shift traffic demand.
Or at least, that is the popular perception among people offering service. I suspect this is in fact true for once. But I’ll add that given the current competitive state, I’ll never know.
So what happens in the market? Well, until now (or at least until the FCC deregulated broadband), we had a virtuous cycle of increased demand for speed driving a combination of last-mile upgrades (sold for higher prices) and edge-based efforts to address speed and latency issues (caching, virtual private networks, BitTorrent and other peer-to-peer distribution systems). Sure, things always seemed to get clogged up again as people got used to higher bandwidth, but that kept the cycle going and brought widespread benefits both to providers (who kept selling new products) and to the network as a whole (which got more robust and efficient, because increasing bandwidth or making traffic more efficient yielded rewards).
Enter the Regulatory Menagerie
We now see the emergence of the broadband providers as a regulatory chameleon. On the one hand, the broadband provider trumpets all of the public utility stuff that we care about as why the broadband ISP needs the freedom and flexibility to do tiering, cut off customers without warning, and do whatever else it wants willy-nilly. Of course we need to be able to cut off “bandwidth hogs.” After all, we are providing valuable and important services! No, we can’t actually tell people how much bandwidth is too much or let them buy packages to get more. That would some how make it difficult for us to maintain “QoS,” which we need to do to support VOIP (although there is a perfectly good voice network if you want this kind of reliability for voice) or other really cool public safety or public health applications that don’t exist yet — but will if we can offer QoS.
But if this infrastructure is so critical, shouldn’t we require that these broadband ISPs make their terms of service clear, so people can plan their lives accordingly? And shouldn’t we have some sort of consumer protection, because everyone is depending on this. And while we’re at it, shouldn’t we require a minimum level of service and deployment to everyone on equal terms, because this service is no so essential to our economic well being, public safety, and over all quality of life? Suddenly, the regulatory chameleon changes back from a critical infrastructure to a “best efforts service” in a highly competitive market. “Heaven forbid we should regulate this highly competitive best efforts service!” Says everyone from the Department of Justice to the regulated industries themselves (and who should know better). “If we did that might deter investment, and then where would we be?”
Customers Through The Looking Glass
Unfortunately, our poor customer now finds himself or herself through the regulatory looking glass. Having subscribed on the explicit promise of an always on high-speed connection, Customer is quite eager to follow the directions of broadband content and broadband service providers saying “eat me” and “drink me.” But the Regulatory Chameleon, the broadband access provider, suddenly appears out of nowhere and warns: “don’t grow too large, lest you be taken for a bandwidth hog. If that happens, we will kick you off the system and you’ll be trapped with the Mad Hatter, the Doormouse, and the rest of the dial up users for whom time has stopped.”
“Goodness,” says Customer. “I certainly should not wish to be taken for a bandwidth hog. But kind Chameleon, pray tell, what does a bandwidth hog look like? For I should not like to be mistaken for one and therefore lose access to these extremely critical services. And, if you are unregulated, how shall I hold you to your promises of high QoS (since your current customer service record leaves a lot to be desired).”
At this point, the regulatory chameleon shifts again to an even more opaque color, and launches into this supposedly explanatory rhyme:
‘Tis Brilig, and the Bandwidth Hogs
Do gyre and gimbel on the ‘net.
All mimsy is the Q-O-S,
So who knows what you’ll get.
Beware the TorrentPhreak my son,
The peers that peer, the files that share,
Beware the video stream and shun
The frumious VOIP-o-ware
“But that doesn’t make any sense!” Cries the frustrated Customer. “Look, you promised me an always on connection! So either tell me what my actual terms of service are or let me assume that I can rely on your explicit advertising about ‘always on wicked fast speeds.’ Otherwise, I shall have to take some recourse.”
“And that would be?” Asks Regulatory Chameleon.
“I shall switch to some other provider.”
“But here we are all regulatory chameleons. Yes, some are snarks and some are boojums, but we are none of us bound by our agreements. It’s in the fine print after the asterisk.”
“Well I’ll complain to my local franchising authority!”
“But the FCC has preempted your local franchise authority over me, because I’m so essential.”
“But if you’re so essential to me, why did they preempt my local franchise authority’s ability to hold you accountable for your promises?”
“Because I’m not that essential. I’m just best efforts. And besides, you wouldn’t want to frighten me off from deploying. And if you don’t like my service, you can always switch to another network.”
“But you just said that wouldn’t do any good!”
“Well, it won’t. But that’s not the point. The fact that you could switch means there’s no market failure. So there!”
“What does that have to do with enforcing your promises or telling me what my terms of service are?”
“I don’t know either, but it always works in DC.”
“Well I shall complain to the FCC then.”
“You can’t. I’m no longer a regulated public utility. I’m an information service.”
“Then I shall complain to the Federal Trade Commission.”
“You can’t. I’m a carrier and exempt form their jurisdiction, because I have a ‘telecommunications component.’ Federal law gives jurisdiction over telecommunications providers to the FCC.”
Here Customer tries to work it out. “But if you have a telecommunications component, aren’t you a telecommunications service regulated by the FCC?”
“No, because I don’t chose to ‘offer’ the telecommunications. I just ‘provide’ it to you as part of my information service. But since I don’t ”offer“ you the telecommunications part, but merely ‘provide’ the ‘telecommunications component’ as a necessary element of the ‘information service’ I do offer, I’m not in the business of offering a telecommunications service and therefore not a ”telecommunications service provider“ regulated by the FCC. But I am still a ‘telecommunications provider’ for purposes of CALEA and therefore, I say, also exempt from the FTC (although the FTC disagrees, I expect the DC Circuit to back me up on this.)”
“But that doesn’t make any sense.”
“It does to the Supreme Court. So there.”
Now Customer is thoroughly confused. “So the FCC can preempt local authority, then declare you are an ‘information service’ and preempt itself, but because you still have a telecommunications component, you claim you are also exempt from the FTC. And everyone knows the Department of Justice Antitrust Division will do whatever you ask. So where do I go to find out your terms of service or hold you accountable for your promises?”
At this point, the Regulatory Chameleon starts to grin and asks: “How is a raven like a writing desk?”
The frustrated Customer replies: “What’s that got to do with it?”
At this point, the Regulatory Chameleon slowly begins to vanish, while its grin gets bigger and bigger: “The rights of a customer with a broadband provider are the same way a raven is like a writing desk.”
“But a raven is nothing like a writing desk.”
And the Regulatory Chameleon has now entirely faded away, except for its grin: “And a broadband customer has no rights.”
“Well,” says Customer crossly. “I’ve often seen a Chameleon without a grin, but rarely a grin without a Chameleon. Although given everything this Chameleon has going for it, I shouldn’t wonder why it grins so hugely.”
An End to the Tale?
So as I say, I find the current regulatory structure and the amazing Regulatory Chameleon a most unsatisfactory state of affairs. I can live with best efforts networks that say what they mean and mean what they say, including the problem of congestion and latency. I either learn to live with it or keep paying extra for higher speed. And I can live with broadband being regulated as a critical piece of infrastructure. But don’t tell me your entitled to regulatory goodies and flexibility on the promise of QoS then act like you’re a best efforts network. Or at the least, loose that damn ear-to-ear grin that comes from screwing over customers with nowhere else to go. Keep it up long enough and enough voters with vorpal blades may declare hunting season on Regulatory Chameleons.
Stay tuned . . . .