Is ‘Net Neutrality’ Enforceable?

TMCnet’s Patrick Barnard sent me a blog entry as this doesn’t pass as an article in its current form. Pat doesn’t have a blog at the moment so I figured I would post it for him. There are some thought-provoking ideas here and I hope this post stimulates a debate on the issues below.

What really makes this post valuable is that many CLECs accused the LECs of underhanded behavior that caused them to fail. What the LECs were accused of doing often times were not easy to prove. So there is an analogy here. Take a read. I hope you like it.


TMCnet Associate Editor

I’ve been reading, studying, and thinking a lot about the “net neutrality” issue – in particular Sen. Ron Wyden’s Internet Nondiscrimination Act of 2006, which he introduced yesterday.

I might be wrong, but I think there’s a point that’s become lost in all of the debate: “Net neutrality” is already dead. As far as I’m concerned, it died with the advent of packetized data. In other words, the minute network operators were able to prioritize the flow of data across the Internet, via “packet prioritization,” true “net neutrality” was no more.

I’m not saying that the Bells’ proposal to create a second tier of the Internet – and then allowing them to charge content and service providers access fees to use it – is appropriate. I agree with the opponents who say that everyone, everywhere, should have unfettered access to all that the Web has to offer. I’m just saying let’s back up a little here. Is the Internet, as it operates today, really, truly “neutral?” I’m not convinced of that.

Furthermore, as I’m about to point out, there is no way to police the Internet to ensure that it is “neutral” anymore anyway. During a conference call with reporters yesterday, Sen. Wyden said his bill would require “strict enforcement” to ensure that network operators adhere to the rules. But just exactly who will enforce the Internet to make sure everyone is playing by the rules of “net neutrality?” It seems to me that at least some of his proposed legislation is unenforceable.

Sen. Wyden’s proposed bill states that network operators “shall not interfere with, block, degrade, alter, modify, impair, or change any bits, content, application or service transmitted over the network of such operator.” I can see how blocking, modifying and altering might be enforceable – but interfering and impairing? Aren’t these really subjective terms – particularly when looking at packet prioritization? How can anyone possibly enforce “interfering” and “impairing” when there are billions, if not trillions of packets traversing the Internet everyday? Who’s going to check? Furthermore, how do consumers know whether the data their receiving on their computers, televisions and telephones has been “interfered with,” or whether it’s been “impaired?” By the same token, how will service and content providers know that their data is being delivered to each and every customer in the best (i.e. high priority) manner?

You might say that the service and content providers, as well as the consumers, are the ultimate “enforcers” – in other words, they are the final line of defense in upholding the tenets of “net neutrality.” If the content doesn’t come through properly on the user’s end, then that will result in complaints – either from the service providers, the users, or both – right? But as I said before, consumers can’t tell whether the packets they are receiving have been properly “prioritized” – so, in the absence of these complaints, who will be responsible for policing the Internet to make sure network operators aren’t “degrading” signals – even to the slightest of degrees?

Here’s my lame analogy: My ear can’t tell the difference between music played back via the MP3 format and music played back from a CD. Yet I know that the CD provides a superior format for the delivery of audio signals (it’s just that the human ear can’t detect the difference). But if went to the store and bought a bunch of CDs, only to learn later that they were bogus copies burned using the MP3 format, I’d feel pretty gypped, wouldn’t you?

See my point? Just because you’re getting the signal – whether its voice, video or otherwise – how can you be sure that you’re really getting the whole signal? How do you know for sure that it hasn’t been “degraded?” How do you know that there aren’t a lot of missing packets? The truth is, most people can’t tell.

The real question here is, under Wyden’s proposed bill, is just getting the data to the customer good enough? (I know – I’ve inextricably linked QoS to the issue of net neutrality – and perhaps that’s wrong.) While it’s true that the main purpose of packet prioritization is to conserve bandwidth (while at the same time delivering quality signals), it seems to me that it also comes in direct conflict with the whole issue of “net neutrality.”

Wyden’s bill states that network operators must “treat all data traveling over or on communications in a non-discriminatory way.” The problem with this, in my opinion, is that network operators already have the ability to discriminate, via packet prioritization. In fact, they’ve already been discriminating – to their advantage – for years.

Wyden’s bill, however, does go so far as to explain how enforcement might take place. For one thing, it requires network operators to “post and make available for public inspection, in electronic form, and in a manner that is transparent and easily understandable, all rates, terms and conditions for the provision of any communications.”

But wait a minute. Isn’t that like putting a mouse in charge of guarding the cheese? Why should we trust them to provide us with this information?

Perhaps more importantly, the bill gives power to the Federal Communications Commission to hear complaints on a “prima facie” basis – and places the burden on the network operator to show that it did not violate any “net neutrality” laws.

That’s fine – providing the FCC has the resources (i.e. the technical expertise) to determine if a violation did, in fact, take place. (And won’t network operators, in at least some cases, be able to conveniently “hide” any violations they may have committed with regard to signal quality?)

Here’s another thing I don’t get: Wyden’s bill says network operators can do what is needed to protect their networks – but at the same time it doesn’t say they can adjust them as needed, via packet prioritization, to preserve bandwidth. The bill states that a network operator “shall not discriminate in favor of itself or any other person, including any affiliate or company with which such operator has a business relationship in (a) allocating bandwidth and (b) transmitting content or applications or services to or from a subscriber in the provision of a communications.” So what happens if a network becomes overrun with an outside service provider’s content, to the point where other data can’t make it through? Does the network operator have to just “sit there and take it?”

Maybe there’s a bunch of things here I’m just not getting. I’ve sent a question to Sen. Wyden’s office regarding this, and I’m eager to get a response. In the meantime, does anyone out there agree with me on any of this?

Or, better yet, if I’m completely off-base here, can you at least straighten me out?

k Barnard
is Associate Editor for TMCnet and a columnist covering the telecom industry. To see more of his articles, please visit Patrick Barnard’s columnist page.


If you liked this, be sure to read some articles on the Sen. Ron Wyden’s Internet Nondiscrimination Act of 2006 from Pat and Me.

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