I have been asked by some journalists and others to comment on the recent actions taken against Comcast and their policy of interfering with peer-to-peer application traffic. Of course, the problem with journalists and policy makers is that they don’t want to understand the real issues involved; they simply want to setup a black and white polemic and decide which side is right. In this case, everyone is wrong.
The whole thing began about a month ago when the AP reported that Comcast was blocking traffic associated with BitTorrent, GNUtella, and other file-sharing applications. In a semantic parsing that would please even the most jaded pentagon technocrat, Comcast denied that they were blocking any traffic. In actuality, Comcast wasn’t really blocking traffic; they were simply imitating traffic in order to get the sharing computers to ignore the data sent between them. This approach is quite a bit sleazier then actually blocking the traffic, as it forces the hosts to keep establishing their connections to one another. Nonetheless, the die was cast, and consumer groups filed a complaint with the FCC and called for congress to impose Net Neutrality regulations. Meanwhile, hordes of libertarian network operators began complaining about how the government shouldn’t interfere with how they run their networks. Three days ago the story got bigger when a California resident filed suite against Comcast for breach of contract, arguing that Comcast does not deliver the promised Internet speeds it advertises, and actively interferes with the performance of certain applications.
The issues and problems surrounding this debacle are an outgrowth of the severely flawed telecommunications policies of the FCC and the federal government’s failure to deal with those bad policy choices. Comcast should to have the right to regulate traffic allocation on their own network. The nature of the HFC architecture employed by cable Internet providers means that limited bandwidth is shared within local distribution areas. This means that if your neighbor is using huge amounts of bandwidth to download an episode of Lost, there is less overall available bandwidth for you. Cable operators want to ensure that burst bandwidth is available to users, so they set the cable modem’s overall limiting quite high (usually between 4 Mb/s & 8 Mb/s); however, this leads to the problem of active users consuming large amounts of bandwidth for extended periods. In the case of peer-to-peer applications, Comcast was trying to ensure that there was excess burst bandwidth available to more casual users of common Internet applications. However, Comcast should have informed their customers that they were limiting specific traffic and applications. By not doing so, they operated in duplicitous and deceitful manner. This is a clear case of Comcast wanting to have it all: they want to pick up subscribers by touting high bandwidth numbers and then limit the users who actually use the bandwidth they’re paying for.
To allow the federal government, however, to dictate what is valid network traffic could lead to disastrous consequences. To be adaptable to the ever changing applications and protocols on the Internet any legislation would need to be written broadly. This could easily lead to situations in which it becomes technically illegal for service providers to mitigate spam, intervene in a virus outbreak, or prioritize voice or video traffic. For many years the Internet community of operators and developers have done an exceptional job of regulating and expanding the applications and data on the Internet. This was primarily due to the need of numerous network operators being forced to work together to exchange data and adhere to standards. Recently this has started to change; however, as the number of autonomous carriers has begun to shrink. This has placed business pressures on the remaining networks to try to keep more traffic and services on their networks and worry less about exchanging data with others.
The overall problem is that there is a lack of competition in the marketplace. If subscribers had multiple choices of broadband providers they could choose a provider based upon their application needs. Network Neutrality only becomes an issue because last mile monopolies have been encouraged by the FCC. With the loss of data line sharing requirements for copper, coax, and fiber, consumers are left with very few choices between Internet providers. Additionally, the deregulation of last mile data facilities means that no company can enter into the market to satisfy customer demands. For instance, a service provider who wishes to target peer-to-peer users cannot, economically, gain access to the copper or coax wire entering your home. This means that consumers will always be tied to one or two service providers and their policies. If competition was encouraged in this market, questions of Network Neutrality would not even arise. Consumers would simply change providers from those who do not satisfy their needs to those which do. The FCC, with their unique brand of logic, keeps insisting that fewer providers means more competition and better products for consumers. In any other market this logic would be dismissed as laughable: do we really believe we would have better automobiles if there were only two or three manufacturers? But in the world of telecommunications this ass-backwards logic seems to be accepted as gospel –proselytized with massive political contributions.
Without re-regulation of last mile facilities the only hope consumers have is Network Neutrality legislation. Network operators and admins should work with lawmakers to try to ensure that any regulations are adaptable enough to address their concerns. If operators, and the companies they work for, simply continue to oppose Neutrality regulation they will soon find themselves having to interpret poorly written regulation and hope that no one complains when they get it wrong. This is simply a case where consumers are not going to stand for biased monopolies, and the monopolies will have to get used to operating in a more neutral fashion.
I saw the best minds of my generation destroyed by
madness, starving hysterical naked,
dragging themselves through the negro streets at dawn
looking for an angry fix,
angelheaded hipsters burning for the ancient heavenly
connection to the starry dynamo in the machinery of night. . .
So begins, arguably, one of the greatest American poems written in the last 100 years. Today marks the 50th anniversary of the landmark ruling in People v. Ferlinghetti allowing the sale of Allen Ginsberg’s Howl. In 1957 the local authorities in San Fransisco had charged poet, publisher, and bookseller, Laurence Ferlinghetti with obscenity over his publication and sale of Howl. On October 3rd, Judge Clayton Horn, who was a Sunday School teacher and had recently sentenced five shoplifters to read and write essays on the Ten Commandments, wrote:
Would there be any freedom of the press or speech if one must reduce his vocabulary to vapid and innocuous euphemism? An author should be real in treating his subject and be allowed to express his thoughts and ideas in his own words. . . . If the material has the slightest redeeming social importance it is not obscene. . .
Fifty years after Judge Horn’s opinion New York Public Radio changed it’s mind and decided not to air the poem on the grounds that it might be deemed obscene by the FCC. With their new found power to fine stations hundreds of thousands of dollars under obscenity rulings, the FCC has created a climate of censorship which would make any authoritarian proud. How, exactly, the FCC can deem something obscene which the courts have explicitly held is not, is a leap of legal logic which boggles the mind. The great irony, of course, is that the society Ginsberg railed against in Howl is stronger today then when he wrote the poem — and that society which was able to tolerate his words fifty years ago seems unable to do so today. So what are we to say to the FCC and the puritans who would gladly sacrifice poetry, literature and art on the pyres of purity? Are we to acquiesce and accept their fatherly admonishments of what’s proper and decent, or are we to fight and cry, as William Carlos Williams did in his introduction to Howl: “Hold back the edges of your gowns, Ladies, we are going through hell.”
I have written several times in the past about AT&T’s questionable treatment of content in order to further their own business agenda. Now comes word that AT&T is officially enshrining their policies in their Terms of Service agreement with AT&T users. As Slashdot reported a few days ago, the updated ToS includes the following terms:
AT&T may immediately terminate or suspend all or a portion of your Service, any Member ID, electronic mail address, IP address, Universal Resource Locator or domain name used by you, without notice, for conduct that AT&T believes (a) violates the Acceptable Use Policy; (b) constitutes a violation of any law, regulation or tariff (including, without limitation, copyright and intellectual property laws) or a violation of these TOS, or any applicable policies or guidelines, or (c) tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.
The breadth of this statement is amazing. As AT&T partners with the Chinese government, would it now be a violation of an AT&T service agreement to criticize the Chinese government? Could one have their DSL connection terminated for publicly questioning their telephone bill?
The AT&T apologists and defenders immediately jumped on this change of the ToS, claiming, once again, that this is obviously an over-reaching mistake by some middle manager, and that, under common-carrier laws, the ToS is unenforceable and would be struck down in court. My response to these people, the same one’s who claimed the Pearl Jam incident was simply an over-reaction by a middle manager, is to ask: how many of these anti-consumer actions does it take constitute evidence of a subtle or general anti-consumer corporate policy? one?, three?, twelve?, twenty? Let me know an I will assemble the requisite documentation. As to the issue of common-carrier regulations, commentators are correct that under those regulations AT&T must remain neutral to general content. However, it is most likely that should push come to shove that AT&T will claim itself to be a Media Organization not held to common-carrier standards. After all, no one would expect Viacom to carry content which damaged their brands, why should AT&T?
There are a number of people whom I respect who disagree with me on the issue of Net Neutrality. Most of them believe that market forces will respond and correct any anti-consumer moves by Internet providers. I believe this would be true, if there existed diverse competition in the marketplace. The problem remains that a very few number of large carriers control last mile access to the Internet. Among these carriers there is little geographic competition, except in major urban centers. Opponents of neutrality site RF distribution as a way to alleviate this problem. However, given the FCC’s recent rulings on the spectrum auctions it seems most likely that the same large companies which control hardline distribution will end up in control of the RF spectrum as well. As congress has done very little to mitigate media and telecommunications consolidation, and will certainly not address this issue in the near future, the only solution left is to impose a Network Neutrality law upon Internet carriers. It is the only solution left for an industry which appearing more and more monopolistic every day is not afraid to flex it muscles on content control.
A few days ago, I wrote about how AT&T censored anti-administration lyrics from Pearl Jam’s webcast. The Chicago Sun Times is now reporting that this was not the first instance of AT&T’s squelching of music questioning the Bush administration:
AT&T’s Blue Room Webcast also had silenced comments during two performances at the Bonnaroo Festival in Tennessee last June, cutting remarks by the John Butler Trio bemoaning the lack of federal response to Hurricane Katrina and comments about Bush and the war in Iraq by singer Wayne Coyne of the Flaming Lips.
“The sound did not cut out at any other time — only when someone was talking about George Bush or the government in a negative way…” AT&T did confirm that other, unspecified political comments have been cut from its Webcasts.
The Daily Swarm is also collecting anecdotes and evidence of further AT&T censorship. A number of the comments suggest that the practice is even wider spread then first thought.
As Jon Stokes pointed out, AT&T’s argument against Net Neutrality legislation has been simply “trust us.” AT&T’s actions have shown, many many times, that they cannot be trusted. It should concern all of us that AT&T — with the encouragement of the FCC — continues its unregulated, monopolistic, expansion. They have shown that they are more then willing to censor political content. Whether the censorship is done for either business or ideological reasons is still unclear, but AT&T has greatly benefited from the administration’s FCC board members. As I said previously, AT&T has completed most of the wall to censor content on the Internet, it is now simply beginning to filter at the gates now.
Last weekend during the Lollapalooza webcast AT&T decided that some improvisation by Pearl Jam was just too questionable to be sent out over the Internets. AT&T decided that when Eddie Vedder sang out, to tune of Pink Floyd’s The Wall, “George Bush, leave this world alone;” “George Bush, find yourself another home.” it would offend some listeners and simply cut the audio.
To anyone who is familiar with AT&T, or with the debates on Net Neutrality, the only surprise should be that AT&T choose this moment and this event to exercise its authority. AT&T has been notorious in aiding the government in it’s wiretapping efforts and has received unparalleledsupportfrom the FCC to create a contentcarriermonopoly. In fact, one is hard pressed to think of a major FCC decision in the past five years which was not in AT&T’s favor. I am not suggesting that there is overt collusion between the two parties; simply, that AT&T knows which side it’s better off supporting in order to expand its business and eliminate competition.
AT&T’s decision to censor Vedder was probably a mistake, at this time. The result of a content manager overly eager to begin his new job as Internet supervisor. To their credit, Pearl Jam issued a strongly worded press release condemning AT&T and calling for greater support for Network Neutrality legislation and greater competition. Of course, the irony that AT&T choose to censor improvised lyrics to The Wall should not be lost on any of us. The album’s themes are ripe with overtones of fascism and repression. As Gerald Scarfe, the great illustrator, said of the album: “In the shadow of the wall, flowers turn into barbed wire; men turn into monsters.”
Make no mistake, AT&T will continue to use their facilities to control content in order to censor any type of speech which could be seen as detrimental to their business aspirations. For them, it is not a political issue, or a free speech issue but simply one of business growth and market control. For those of us who see the Internet as the new hope of free speech AT&T’s actions should strike terror into our hearts. At this time they have nearly every right to control and monitor any content delivered on their network; there is no law preventing them from simply discarding any traffic which delivers content critical of them, or the government whose support they so need. A wall of censorship has already been erected by the lack of action by our government — we are only awaiting the closure of the gates. It is time we demanded that the wall be torn down.
Today two FCC commissioners, Jonathan Adelstein and Michael Copps, refused to rubber stamp the DoJ’s unconditional approval of AT&T’s acquisition of BellSouth. This could be a landmark event. As FCC chairman Martin, who has never seen a consolidation he didn’t love, finds himself with a split board. Commissioners Martin and Tate are pushing hard to approve the acquisition without any stipulations; while Commissioners Adelstein and Copps have expressed realistic concerns about the DoJ’s approval, and what effect the consolidation would have on competition. Commissioner McDowell has to abstain, under FCC regulations — due to previous employment with both AT&T and BellSouth. Without support from one of the Democrats, the merger is dead. Martin, of course, won’t allow this to happen, and he is, no doubt, more then willing to trade off conditions to allow the merger to proceed — he has already proposed allowing competitors access to 30 commercial buildings in Bellsouth territory; a facile concession at best.
There can be little doubt that enormous pressures are being applied to Adelstein and Copps tonight, as the commission is scheduled to meet again tomorrow to deal with the two most important items from today’s agenda: the acquisition, and Net Neutrality.
There is some, small chance, that Copps and Adelstein will hold out for a enforced Net Neutrality stipulation to allow the merger to proceed. It is critical that the commissioners be contacted about these issues:
Update:
Apparently, not enough arm twisting was applied to Copps and Adelstein last night. Commissioner Martin canceled today’s special meeting — meaning he was unable to get the one of the two holdouts on board. Martin has rescheduled the vote for November 3rd. This gives every one plenty of time to contact Comissioners Copps and Adelstein, and inform them of our concerns regarding the future of both the Internet and telecommunications in the US.
This week presented a great deal of news about our friends at the FCC. Fresh from their imbroglio surrounding a surpressed report showing that media consolidation adversely effected local news coverage, the FCC board, tenacious as ever, has issued an updated agenda for its meeting on October 12th; an agenda which is forecasting more bad news for consumers.But first, a study by Ars Technica has concluded what most of us has suspected: that any large number of indecency complaints to the FCC are generally the product of a special interest groups, and not that of a greatly offended viewing public. The following graph illustrates the overall trend, by comparing the same quarter across a four year period:
As Ars points out:
In April, May, and June of 2002, for instance, only 141 people in the entire country filed an FCC complaint. In the same three months of 2003, 351 people objected. Then, in 2004, something remarkable happened: 272,818 people filed complaints in a single quarter. Had television suddenly started peddling prime-time pornography? Of course not. What had happened was a certain “wardrobe malfunction” at the 2004 Super Bowl. The brief flash of Janet Jackson’s pasty-covered breast outraged conservatives across the country. More importantly, it outraged the Parents Television Council (whose children, remember, are watching), which mounted one of its many campaigns to flood the FCC with complaints. By all accounts, it was successful; an FCC estimate concluded that more than 99 percent of the complaints received came from the PTC.
What, exactly, the PTC believes is ‘decent’ television seems illusive, but their viewer guide offers some insight into what they believe television content should be comprised of:
PTC Picks of the Week
Friday, October 6, 2006
Wheel of Fortune, 7:00 p.m. (Eastern) ABC Contestants compete for prizes.
Scooby Do! Pirates Ahoy!, 7:00 p.m. (Eastern) Cartoon Network Scooby-Doo and the gang have a scary adventure while taking a creepy voyage in the Bermuda Triangle. Animated.
Jeopardy!, 7:30 p.m. (Eastern) ABC Contestants supply questions for answers.
Everybody Loves Raymond, 7:30 p.m. (Eastern) TBS Ray vows to win the grand prize of the Frontier Girls cookie drive when Ally’s troop leader targets his parents’ house.
Deal or No Deal, 8:00 p.m. (Eastern) NBC A Washington waitress tries her luck at becoming a millionaire.
Little House on the Prairie, 8:00 p.m. (Eastern) TVLAND A fat, sensitive boy withstands classmates’ taunts but gets angry when Nancy spurns him.
Twitches, 9:00 p.m. (Eastern) Disney Channel Reunited on their 21st birthday, twin sisters use their magic powers to save their kingdom from the forces of darkness.
The Andy Griffith Show, 9:00 p.m. (Eastern) TVLAND Opie tries to win a present for Andy at a carnival.
It is striking to realize that the PTC believes we should all be watching either game shows, or re-runs of programs which have been off the air for 10 or more years. The overall problem, however, lies with the FCC’s overreaction to complaints from such groups. It has been well documented that the major networks have felt pressured by FCC rulings to withhold or censor programs such as documentaries dealing with 9/11, World War II, and Jazz. Reality, the actual lives and experiences of Americans, is just too indecent to people at the PTC to be shown on television. This is a microcosmic example of the problems within our nation: the overall premise for the past five years has been that representation creates reality. If no one swears on TV, then it can’t be happening in our country; if we all believe things are going “swimingly” in Afghanistan, then, by definition, they are. While conservatives constantly hype the moral relativism of the left, they have been busy trying to construct a reality composed of desire and simulation, rather than evidence. The FCC was chartered, in part, to ensure the public airwaves were used for public benefit. The FCC must come to the realization that the public benefits from seeing the world represented as it is, with the occasional profanity and sex that exists in it, and not as some people wish it was. Only then, can we all confront the actual problems which face our nation.
As much as the FCC bends over backwards to pander to groups wailing about indecency, it turns a deaf ear to groups advocating access and competition. While the FCC is more then willing to jump in and protect us from dangerous breasts on our televisions, it seems impotent to protect us from monopolies and price gouging. On Thursday, the FCC published it’s agenda for its October 12th open meeting. Two specific items on the agenda bode ill for American consumers:
4. WIRELINE COMPETITION
TITLE: AT&T Inc. and BellSouth Corporation Application for Transfer of Control (WC Docket No. 06-74)
SUMMARY: The Commission will consider a Memorandum Opinion and Order regarding the transfer of control application of AT&T and BellSouth.
5. WIRELINE COMPETITION
TITLE: Broadband Industry Practices
SUMMARY: The Commission will consider Notice of Inquiry regarding broadband industry practices.
It is no coincidence that these items appear in this order on the agenda. Item 4 indicates that that the FCC will gives its final approval to the acquisition of BellSouth by AT&T. This will, once again, reduce the number of exchange carriers in America. Leaving customers with fewer choices and competition seems to be the current modus operandi of the commission. With the loss of BellSouth we are left with only three national carriers (Verizon, Qwest, AT&T) - I have good reason to believe that Qwest will soon be eliminated from that list. AT&T with its acquisition will now control exchange services for the majority of the United States. With this unprecedented, unregulated, control AT&T needs to make an all out effort to expand its services. This means a quick passage of COPE (HR.5252), without Network Neutrality protections, is essential to AT&T’s growth plan. The FCC’s notice that it will be considering a ‘Notice of Inquiry’ on broadband competition is the first step in neutering the Neutrality issue. In the world of the FCC, a Notice of Inquiry means that the commission will study and consider the issue — it is about the absolute lowest form of interest the FCC can take in any issue. Once the FCC has done this, the lame duck Congress can press for COPE to be passed under the protection of the argument that the FCC is studying Net Neutrality.
COPE radically changes the laws governing cable franchises and telecommunications services in this country. Without Network Neutrality protections it insures a monopoly on next-generation network services for the carriers and potentially threatens the free exchange of ideas on the Internet. Network Neutrality regulations are critical to ensuring that competitive and innovative services continue to evolve online. AT&T and others are banking on their monopoly to drive services and revenues, but that same monopoly ensures the type of broadband stagnation we have been experiencing in the US for the past 10 years. At a time when software developments are beginning to overcome this stagnation in telecommunications, AT&T and others wish to subject most of America’s Internet to same types of policies which have so ill served consumers across this country.
It is vital that any pressure felt by the current Senate to withhold COPE be doubled in the upcoming lame duck session. If not it is almost certain that the bill, as it stands, will be passed, and America will have lost both in consumer protection and economic innovation for years to come.
Contact your Senators regarding this issue
I have been asked by some journalists and others to comment on the recent actions taken against Comcast and their policy of interfering with peer-to-peer application traffic. Of course, the problem with journalists and policy makers is that they don’t want to understand the real issues involved; they simply want to setup a black and white polemic and decide which side is right. In this case, everyone is wrong.
Comcast, fcc, Net Neutrality
