Free speech doesn’t mean free as in free beer
A lively debate has ensued since the CEO of National Cable & Telecommunications Associations (NCTA) Kyle McSlarrow gave a speech that raised concerns about the threat to the first amendment rights of ISPs posed by the FCC’s proposed “Net Neutrality” NPRM regulations.
Specifically, the non-discrimination clause in paragraph 106 of the proposed NPRM would prohibit ISPs from offering any kind of “enhanced or prioritized” services to Content, Application, or Service (CAS) providers. The exact scope of the banned services and the type of “providers” that fall under this blanket prohibition is deliberately vague and open ended and it can stifle innovation if Paid Peering is outlawed, but the more fundamental problem lies in the fact that this is a blanket prohibition. The rule doesn’t just prohibit discriminatory services (which everyone opposes), it prohibits all fee based services that enhance performance and that’s where the first amendment rights of the ISPs and the CAS providers are jeopardized.
In response to McSlarrow’s speech, a chorus of protests came from the pro regulation crowd. Marvin Ammori went as far as saying that “It’s not their (ISPs) first amendment, but ours“. Oh Really! Who made Mr. Ammori the ruler of who gets the first amendment and who doesn’t? I thought the first amendment protected everyone under the Constitution including corporations. At least that’s how the courts have viewed it for over a century and it’s seems likely to stay that way when even swing voters like Justice Anthony Kennedy is in favor of free speech for corporations.
The ACLU says they believe that ISPs also have the obligation to ensure the first amendment rights of every Internet user and content provider such that their “speech flows” in addition to their own right to free speech. But the ACLU really didn’t make a good argument as to why they think the first obligation is mutually exclusive from the second obligation, yet they argue that these two roles somehow conflict.
Free Press made the argument that:
“What they (ISPs) are proposing would allow them to violate the core principle of Net Neutrality—letting them control the Internet by picking winners and losers in a pay-for-play scheme.“
In other words, the Internet should only be free as in free beer even though the Internet has always been and still remains a pay-for-play system. I certainly don’t expect my $50/month colocation service for our Digital Society server to have the same performance as Google Servers when Google pays billions of dollars a year for their infrastructure, yet Free Press has a problem with pay-for-play “schemes”. What Free Press is really arguing is that Free Speech can’t be realized unless it’s free as in “free beer” (unless you’re Google in which case you get an exemption from that obligation). And because the ISPs want to offer enhanced services for a fee, then this somehow violates the free speech rights of those who can’t afford it.
On a more balanced note, Scott M. Fulton of Betanews summarized all sides of the debate in his article yesterday. Other editorial coverage from Mathew Lasar of ArsTechnica echoed Free Press when he wrote:
“But it’s easy to anticipate the fears: that ISPs will offer different levels of network management quality and access to different content providers, depending on what they’re willing or able to pay. Of course, the rates will be the same for everyone—who can afford them.”
Again, the argument is made that these services are discriminatory because they are not free as in free beer. Yet Lasar goes on to admit that:
“deep-pocketed companies like Google can already buy better access by doing things like paying more for caching services, even co-locating caching servers in ISP data centers. But those arrangements do not require the ISP’s own routers to give priority to any particular Web traffic.”
So wait a minute, Google paying for enhanced and prioritized services in the form of edge caching (plus the fact that they’ve built one of the largest private Internet bypass fast-lane networks in the world) is somehow good but using priority queues in a router is bad? If anything, priority queuing in routers is a relatively weak enhancement mechanism compared to edge caching and private bypass networks. All the router priority in the world is useless without some sort of caching mechanism when it comes to delivering large-scale on-demand video over the Internet, but caching alone works quite nicely for on demand Internet video with the exception of real-time unbuffered audio or video communications or television services.
The reality is that Google’s private fast-lane infrastructure is the most effective “pay-for-play” system on the Internet and it has proven to be the most successful model. To argue that one is somehow good and the other is bad is hypocritical. Google’s attempts over the years to argue that their fast lanes are good but ISP fast lanes should be prohibited by Net Neutrality is a blatant example of rent seeking.
The fact is that free speech legally belongs to everyone. It is the obligation of the ISPs to offer their services in a nondiscriminatory manner that protects free speech, but the availability of enhanced pay services, regardless of the form it takes and who offers it, is not a violation of the rights of those who can’t pay. There is no justification for a blanket prohibition on enhanced or prioritized services.
Have to agree with McSlarrow when he said in his speech,
“By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government. Making these arguments is, ironically, almost proof that First Amendment rights are being implicated…let’s not forget that the First Amendment is framed as a shield for citizens, not a sword for government.”
George,
If you look back at the Telecommunications Act of 1996 one can see that the phone companies were required to open their networks to competition. This and the Mobile Phone Industry proliferation eventually led those companies to enter the Cable TV business, or otherwise continue to loose revenues.
I just do not understand the premise of using the Firt Amemdment as a basis of negating regulation unless the strategy is to challenge any new rules in the court system. I’m not against tiered services, just the argument of Free Speech from an industry that has this at its disposal in many different ways.
The argument certainly is not going to win any popularity contest with consumers or the FCC, for that matter. However, as an industry veteran my reaction is one of dismay that an innovative and successful industry has to pull from a basic right of all citizens to make its case. There has to be somethiing I’m missing here.
Leonard,
In my humble opinion the use of common carrier in the Telcomm Acts of 1934 and 1996 are not appropriately applicable today. In 1934 Western Union had a massive monopoly on telegraph lines. There was one major company running the show. In 1996 the break up on the Bells was arguably appropriate being that tax dollars built those networks. Today, while there is certainly limited choice, there is choice. And furthermore modern networks have been built by private investment. And forcing privately built networks to open their lines to companies that did not have to endure any start up cost is akin to the government coming to your house and taking your property at will via eminent domain.
What does the 1996 act have to do with today Leonard?
The problem is that the proposed FCC NPRM regulations have a blanket prohibition on existing and new business models that the ISPs have been and might want to offer in the future. These new regulations aren’t demanding nondiscriminatory services; they’re just flat out saying you can’t operate these businesses. That just seems blatantly wrong to me.
Thanks for enlightening me guys.
My reference to the 1996 Telecommunications Act is the fact that it happened to the phone companies and could happen again in another context.
What peaks my interest is the comment George made about blanket prohibition of existing and new business models. Surely this is not the proposal! I don’t remember this particular point being brought to light in recent NCTA speeches. George if you can give me a lead for more info on this, that would be great.
I do commend Digital Society for its research of the facts, which needs to be communicated in that manner. The average lay person does not know or understand all the implications.
Leonard,
Paragraph 106 of the proposed FCC NPRM says:
“We understand the term “nondiscriminatory” to mean that a broadband Internet access service provider may not charge a content, application, or service provider for enhanced or prioritized access to the subscribers of the broadband Internet access service provider, as illustrated in the diagram below.”
As I said in this post “The exact scope of the banned services and the type of ‘providers’ that fall under this blanket prohibition is deliberately vague and open ended and it can stifle innovation if Paid Peering is outlawed, but the more fundamental problem lies in the fact that this is a blanket prohibition.”
So there are a number of things it would ban
1. Ban on Paid Peering which I highlight here.
http://www.digitalsociety.org/2009/11/fcc-nprm-ban-on-paid-peering-harms-new-innovators/
2. A number of other services including ISP CDN caching services. http://www.digitalsociety.org/2009/12/a-meaningful-debate-on-nprm-regulations/
3. Some argue that the ban is limited to Assured/Express Forwarding services that run in the routing infrastructure. http://www.teliasonera.com/press/pressreleases/item.page?prs.itemId=426937
But they can’t say that because the NPRM is notably vague and open ended in the sense that it doesn’t specifically say what kind of “enhanced or prioritized” access it would ban, and it could apply to all of the above and beyond. The point is that even if the NPRM prohibitions are more limited in scope, they are still a blanket prohibition.
The other problem with the NPRM is that it seeks FCC powers to restrict what private businesses can do with their own infrastructure and dictate what percent of the network must be used for Internet services.
Nick,
Tax payers didn’t exactly build the infrastructure. It’s an extremely complex topic. What happened is that the majority of phone subscribers subsidized the infrastructure in high-cost regions in the form of inter-carrier compensation. That basically means the larger urban and sub-urban carriers and their subscribers subsidized the smaller carriers in the rural areas.
It means the majority of phone subscribers subsidized a minority of subscribers. It does not mean tax payers paid for the whole network.
George,
From reading the information provided it seems that the NPRM language is at the crux of the debate for those seeing paid-peering-agreements as essential to increased participation by innovative content providers, whether they are start-ups or seasoned providers. It seems to be open ended for interpretation, and that is scary to the ISP’s.
As private networks, the ISP’s should know their responsibilities regarding consumer and commercial traffic, and the ramifications of prioritizing, if any. Obviously, paid peering is needed for those whose products depend on it for business survival. The consumer wants the same whether they are streaming movies, or downloading PDF’s or just sending e-mail attachments.
So to me, it comes down to network infrastructure capabilities across a wide variety of circumstances and geographical locations which require different needs. In essence, what will it take for both large and small ISP’s to handle the varying traffic over their networks; upgrading to a standard that reasonably doesn’t degrade the user experience?
I think what is most in everyone’s thoughts are; will ISP’s that are vertically integrated favor their products over others, or their competition? The debate should not end as a deterrent to innovation and investment from the private sector.
However, it seems the FCC is leaving its options open at this point.
Leonard,
It’s pretty certain that the FCC NPRM *WILL ALLOW* ISPs to *CONTINUE* favoring their own services under “Managed Services” which includes IPTV, VoIP, or business class Internet solutions. I can’t overemphasis enough that ISPs have and will continue to favor their own services, and why wouldn’t they when they are the ones that have to pay the bills and sign the paychecks to over a quarter of a million people? These services are the ISP’s bread and butter and there’s no way they can continue investing billions of dollars in the network and keep employing hundreds of thousands of employees if regulators knee cap the ISP’s revenue streams.
But what is shocking is that the current NPRM says it should probably be illegal for the ISP to also favor all other VoIP providers to improve general customer experience with or without a fee. So the NPRM would allow ISPs to protect their own applications, but not allow them to use common sense to protect other applications. http://www.digitalsociety.org/2009/11/fcc-nprm-prohibits-good-network-management/
As I said, the blanket prohibitions against ISP offering services inside the NPRM are very problematic regardless of how narrow or wide the interpretation is. The fact that it is a blanket prohibition is the problem.
George,
With the wide range of content flowing through the pipelines, and increasing at a rapid pace, the network cannot become a (dumb pipeline). Network management seems to be an essential characteristic needed to handle the flexibility of constantly differing requirements from users. This is not a linear format with constant speeds and demands.
So, the network has to constantly adjust to those varying needs which may require one user to demand more capacity than others at unique times. This management, which I think you are saying, will not degrade the network for users. It is a matter of chossing one higher demand over a lower demand without degrading the demand for both. It manages the requirements of each user.
The Industry has learned and adjusted accordingly since the incident about throttling (bit torrents), which seemed to isolated.
I agree with you on the (bread & butter) metaphor.
Yes Leonard,
I define “True Neutrality” here as an intelligent network rather than something that people assume to be neutral in a dumb network that isn’t actually neutral.
http://www.digitalsociety.org/2009/11/what-is-true-neutrality-in-the-network/
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