It would be a mistake to regard this as a defeat for the companies. Their decision to file an appeal at this point was a precautionary move taken because of the complex procedural tangle that surrounds issues of finality and appealability.  [For the details, see Which Court Gets to Hear the Net Neutrality Appeal? (Jan. 21); More on the Verizon Appeal of the Net Neutrality Regulation (Jan. 24); Update: Appeals of the FCC Net Neutrality Rule (Feb. 3).]

Had the companies failed to file, they would have left the door open for the FCC to argue later that they should have filed earlier, and that their failure to do so had forfeited the chance to argue that the appeal must be heard in the DC Circuit because it involves licensing. Now, that possible attack is barred, and the court’s opinion explicitly left undecided the issue whether the DC Circuit is the only appropriate forum for the appeal. The crucial language in the opinion is: “Regardless of whether the order is reviewable by way of a petition for review, 47 U.S.C. § 402(a), or a notice of appeal, 47 U.S.C. § 402(b), the prematurity is incurable.”

So the appellants are well-satisfied. They would have preferred an immediate and total win, of course, but that was never a likely or expected result.

In my paper Last-Mile Dilemma, I noted that,

“Neutrality of the Internet is rather the idea that individuals on differing systems of connectivity and differing speeds of delivery should still have the ability to communicate with each other without applications or locations on the Internet being blocked or the traffic purposefully slowed.  This is what Tim Berners-Lee was describing when he said, “If I pay to connect to the Net with a certain quality of service, and you pay to connect with that or greater quality of service, then we can communicate at that level.”

That seems to be a different sentiment than his new stance that the Internet should be “free” and that users should have open access to all types of content that exists on the net.  The idea that the principle of net neutrality is free and open access to anything on the Internet is one more notch in the belt of an ever changing definition of what net neutrality is.

Tim Wu has recently added an addendum to his ever growing list of Internet rules as well stating that the government should create “term limits” for successful technology and Internet companies.  And in his comments he makes no bones about his ideology of state socialism commenting that if a “company has clearly shown that it’s corrupt” then the federal government should “just nationalize their source code.”  Wu fails to explain who would be making these decisions or advocate the federal governments authority to carry out these decisions. Being a legal scholar it would seem that this would be an appropriate and rational step.

Both Berners-Lee and Wu seem to be opposed to the app model now booming on many Internet devices and additionally based on their comments find services that have a pay wall to be a violation of net neutrality principles being that certain groups, i.e. those that are not subscribed, are blocked access from that service.

Proponents of net neutrality regulation repeatedly proclaim the notion that regulation will improve and encourage innovation on the Internet.  What we have however are two individuals who have now been caught saying two different things.  Net neutrality regulation will encourage innovation, yet if the innovation is too good and uses a subscription wall then it is a violation or if it becomes too popular and ventures into a zone that, based on some arbitrary system, someone declares monopolistic and corrupt then it is in violation.

Clearly those are not safe market conditions that a company could work within taking risks and making investments, and it is certainly not a free market.  These notions are rather a utopian fantasy land in which companies operate under the whims of a federal authority and who would not be in the business of striving for financial success and profit, but rather offer all services free of charge and who run out to their money tree in the back yard whenever bills come due.

The 150 GB cap applies to AT&T’s slower DSL customers while the 250 GB plan applies to AT&T U-Verse and Comcast cable broadband.  Note that for customers not on U-Verse using the older DSL technology, it is unlikely that they have a 6 Mbps connection required for the 4.8 Mbps option because 6 Mbps U-Verse plan is cheaper.  Furthermore, normal DSL is effectively a little faster than 5 Mbps for actual data throughput because the 6 Mbps sync rate has protocol overhead.  I have tested 6 Mbps U-Verse accounts getting 7 Mbps of data throughput on speedtest.net.

Netflix doesn’t give offer a 2.2 Mbps HD option which works better than 4.8P 2.2 Mbps mode, but I’m fairly certain that 3 Mbps connection using the “best” mode could still watch “HD” at sub 3 Mbps speeds with slightly lower quality.  This is what I have confirmed on my home connection.

UPDATE – It should be noted that many of the movies in Netflix are not available in HD which means they’re low bandwidth to begin with.

“We’re happy to work one-on-one with any of your readers to walk through the measurement tool and address any questions,” AT&T spokesman Seth Bloom tells Broadband Reports. “We’re already addressing ways we can make the labels and information on the online tool more clear for customers between now and May…I can also assure you our team is performing checks everyday to ensure accuracy.”

“Other tools may measure at different 24-hour periods than we do, and most likely do not take into account the standard network protocols (e.g. Ethernet, IP) that are used to provide applications and content to our customers via the Internet,”

It’s one thing if a journalist wants to question a company’s statements, but it’s wrong to twist a company’s words and claim that “AT&T says they’re working on meter accuracy“.  Bode’s portrayal of AT&T’s statements suggests that AT&T is admitting to problems and that they are trying to fix them.  But looking at AT&T’s quoted statements above, it is clear that AT&T did not admit there were inaccuracies.  What AT&T said is that they will look into complaints, they will continue ensuring accuracy, and they explained why users might be getting different measurements.

If users measure a different 24-hour interval than the daily metric shown by AT&T’s usage reports, that will produce daily inconsistencies but it has no effect on the monthly metric which is the only relevant number.  There are no daily usage overage penalties and after I checked AT&T’s usage meter, it only shows previous months and the current month’s running tally.  Based on my own usage of around 50 GBs (which is a few times higher than average), I saw nothing that would indicate any problems with AT&T’s usage meter.

As for the complaint that AT&T measurements include IP and Ethernet overhead, that’s sort of like complaining the supermarket sold you a 10 lb watermelon which included the 1 lb of peel and seeds.  With IP and Ethernet overhead, we’re talking about a difference of 2.4% with large file transfers which makes up the bulk of usage.  Most users aren’t even going to see the difference except for people looking for something to make an issue with.  Broadband transparency is good and these details should be in the terms of the contract, but arcane details like IP and ATM PPPoE overhead probably won’t make it on some “nutrition label” because it’s too confusing and insignificant.

The contention that the two authors share on Facebook is that they see it taking over everything that we as content consumers/producers do online in one giant all encompassing box.  Facebook has transitioned from a site that simply allowed friends to connect, share pictures, and send messages to something entirely different, something that is very reminiscent of America Online.

In the mid to late 90′s AOL was king of the hill offering entrants into the online world a virtual sandbox of things to do and try.  The service is often referred to as a gateway to the Internet.  Personally I think that notion is incorrect.  AOL was simply a gateway to AOL.  In fact it wasn’t until years into the life cycle of the product that the company even provided a browser within the software to allow users to venture out into the wilderness of the “real” Internet.  The notion always reminds me of that conversation Morpheus has with Neo about reality in the first Matrix film.

For those of us using AOL in those days the “real” Internet held this reputation of being the Wild Wild West.  It was dangerous and mysterious.  It’s possible that it was not safe.  What if you were caught out there and were stranded?  How would you get back to the safety and security that AOL had built.  Within those walls you had everything you needed anyway, right?  It was so beautiful inside, almost botanic.  Why would anyone ever need to leave and go anywhere else?

What transpired was that we all (well, mostly, I’m still trying to break my mom free) figured out that we could get all of that stuff we were paying for free somewhere else. Email? Check. Chat? Check. Games, social content, message boards, research, shopping, and so on all cropped up for free on the “real” Internet.

Over the next almost half decade we all went running a muck across the free market of ideas in the Internet space.  Some ideas were amazing, some were terrible.  Some succeeded and some failed.  Some really great ideas also failed, and some really bad ideas still exist.  That’s just the reality of the market.  But for the most part the best ideas rose to the surface and not all of these exist simply in a traditional computer experience.

iTunes, Netflix, Xbox Live, Facebook, Kindle, and app stores; all of these in some way are walled gardens.  We helped to build them.  We drove business toward them.  And these ideas are not alone.  The thing is that we are using them more, not less.  They are getting more popular, not less popular.

In Tim Wu’s, The Master Switch, Wu argues that the Internet is headed toward this “app store” type environment that will create walled gardens and move away from the magical land of fairies and unicorns that he paints as the “open Internet”.  This is generally part of his Net Neutrality barking and along with this usually comes blame for big business and infrastructure corporations.  But the reality is that it is the content creators that develop these models on the net, not infrastructure.

Not only did content creators build the modern net as walled gardens, but we the consumer encouraged it.  When we ask Facebook to give us easier ways to communicate and they add chat, and then messaging, and then email, and then we ask for things to do with friends and they give us games, and other forms of interaction we helped to create AOL all over again.  Is that truly a terrible thing as Biddle and Dvorak decree?  Not if that’s what people want.  Facebook or any other popular website or platform is not fool proof.  And if something better comes along it can be stopped.

Take one of those non-computer specific models for example.  7 years ago Sony dominated the gaming space and were leaps and bounds in front of the competition with their move into online gaming with the Playstation 2.  Over the next half decade Microsoft learned from its earlier mistakes, innovated, developed a walled garden for gaming, music, movies, and communication with their Xbox Live product and left Sony scratching their heads.

If we face the truth, walled gardens attract users because they are easy to use, they have lots of integration, lots of options for what people do online are in one place, and frankly if user numbers are the indicator of success, then some of the top preforming online websites, applications, communities, and platforms are walled gardens.  The fact simply must be faced, we love them, they work, and they are successful.  In the near future we will begin to hear about how these models like the iTunes app store and maybe even Facebook need to be opened up.  But we simply can’t regulate a winner.  That’s a market decision, and the market is asking for pretty flowers and a guard gate.

There’s been much media criticism of the wireless industry for alleged spectrum hoarding, but the problem isn’t that simple.  Former FCC chief economist Thomas Hazlett who has studied the spectrum market for years stated the following when asked about spectrum hoarding by the wireless industry.

Thomas Hazlett -

The 534 MHz (auctioned to the wireless industry) is way over-stated.

First, through 2009, only about 200 MHz was being used by mobile carriers. That includes 50 Cellular, 120 PCS, and about 20 for SMR (the former dispatch licenses turned into mobile phone spectrum by Nextel).

Second, there were (finally) big auctions in 2006 (AWS) and 2008 (700 MHz). These yielded 90 MHz of licensed spectrum (AWS) and 70 MHz (700 MHz – counting previous auctions in 2002/03). This bandwidth was encumbered. The 700 MHz licenses had TV stations broadcasting on many of them until to June 2009, and still have wireless microphones and (maybe) low power TV broadcasts. It’s not a big issue because most of the bandwidth, owned by AT&T and VZ, is being used for LTE — and this is not yet rolling out. The AWS spectrum is encumbered by government users, and it’s a problem for T Mobile and other carriers who paid the $13.9 billion in 2006. They’re still clearing the band.

Third, there are the 2.5 GHz licenses that Clearwire and some smaller players are aggregating to provide WiMax services. There is up to 190 MHz available here. But it is fragmented insanely, and the companies have to piece together most of the bandwidth via long-term contracts with non-profit educational institutions — Catholic churches, community colleges, etc. How much can be effectively deployed is not publicly known. Clearwire claims that it has something like 90 MHz covering about 120 million pops. And they’re the biggest play, by far, here. Given the licensing problems and the technology problems (WiMax not scaling, not blowing away 3G let alone LTE), and the inherent cost disadvantage in building new networks from scratch (against carriers upgrading 3G to 4G), this spectrum is not yet effectively competitive in the wireless space.

So, when you get down to it, we now have something like this:

190 — deployed by cellular carriers
190 — 2.5 GHz potentially deployable for wireless broadband
160 — likely to be soon deployed by carriers (AWS, 700 MHz)
—–
540

Tossing in the 190 for the 2.5 GHz licenses is dubious, and the fact that the FCC waited so long to auction the AWS and 700 MHz licenses makes this spectrum a future play rather than currently deployed bandwidth. The additional 50 MHz is from AWS-2, and I don’t know how fast the FCC is going to move on that. Could be years. It’s already been four years since the AWS-1 was auctioned.

This isn’t to excuse the comments by Dish Network executives, but Hazlett highlights the fact that the problem of spectrum hoarding is complicated and that it is often overstated.  Bad behavior isn’t the norm in the wireless industry and the major wireless carriers use their spectrum very efficiently and they are in the process of deploying newly auctioned spectrum.  We should address spectrum hoarding and speculation in future auctions but it should not be a reason to halt spectrum waste reclamation in TV broadcasting.

Professor Hazlett offered a detailed proposal for reclaiming that wasted spectrum by eliminating broadcast TV and paying the private sector serve the roughly 10% of our population who don’t have subscription TV from one of the existing MVPD providers.  I offered a slightly different proposal that would leave 40 MHz intact and reclaim 254 MHz of spectrum which gets most of the spectrum back but eliminates the need to create an alternative to broadcast TV which carries the risk of a permanent TV service entitlement.  I like Hazlett’s proposal but I am biased towards my own, but both proposals are vastly superior to the status quo.

This attack highlights a much more fundamental problem with X.509.  A lot of large companies will say “oh but we use more reputable certificate authorities for SSL”, but it doesn’t matter because the fundamental weakness of X.509 allows any one of the many certificate authorities to compromise the entire SSL PKI system.  Any nation (including rogue states) have access to the master keys.  Anyone willing to spend around $40,000 can simply buy themselves access to a root certificate (essentially a “master key”) that would allow them to create any SSL certificate they desire.  Although the terms of the root certification signing authority contractually forbid buyers from abusing their root certificate, it’s a useless trust based on the honor system.

DNSSEC is a new secure Domain Name System (DNS) that also has the ability to replace the fundamentally weak X.509 PKI system.  DNSSEC security is vastly more secure because of the following design principles.

• Only the DNSSEC roots have master keys.  By comparison, there are dozens of root authorities for X.509 and anyone with $40K or anyone who compromises one of the many root authorities have access to the master key.
• Each DNSSEC root doesn’t have a full master key.  The .com root can’t sign for the .ca or .cn root.
• DNSSEC delegates limited signing authority to each domain owner.  Each domain owner can sign their own certificates for their own servers and users, but they can only sign it for their own domain which eliminates the threat of cross-domain signing abuse possible with the current X.509 PKI system.
• Domain owners don’t need to pay hundreds of dollars for each server or user certificate like the current X.509 PKI racket.  Not only does this save companies money, it removes barriers for the adoption of secure communications.  Certificate Authority companies should earn their money providing services of value, not signing a few bits for customers who had no choice before DNSSEC.

Ford takes a look at the information gathered by the National Telecommunications and Information Administration after the goals set by 2009′s American Recovery and Reinvestment Act.  Ford says that the data gathered will allow for the quantification of socio-economic factors and broadband availability across the nation.

Even though he feels that the NTIA should be praised in their efforts, there is concern that the mapping data carries with it errors, and there is more concern that there even exists errors yet to be discovered.  Ford feels that mapping data “should be viewed with skepticism” until some of the problems can be discovered and remedied over time.

Ford concludes that until measurement errors and sample selection errors can be worked out by researchers over the coming months and years, that it would be wise for the time being that the NTIA data was not used as hard and fast evidence in directing policy goals.

You can read the full paper here.

The feature has now become a pawn in the high stakes battle between browser designers Microsoft and Mozilla.  Microsoft’s newest iteration of Internet Explorer has included the technology, and Mozilla’s Firefox 4 due in a few weeks March 22nd will also carry the feature.

Mozilla CEO Gary Kovacs has said that he doesn’t believe these types of privacy features need to be regulated, stating that, “It probably doesn’t need to be regulated, but it probably will be.”  His reasoning is that consumers are demanding privacy features and to remain competitive in the broadband market, browser makers are answering the call.

Regulation may force the implementation of these features into browsers if there is consumer demand for regulation.  It is uncertain at the moment whether regulation is necessary.  Several things will need to be taken into account.  Currently it is not know whether all browser makers will implement these types of features as Google and Apple have not announced any plans for Do Not Track privacy protections in their Chrome and Safari, respectively, browsers.

If all major players do this on their own the likelihood of disappointed users asking for these types of features to be enforced may be unlikely.  If their are hold outs, however, then Kovacs may be correct in that we may see regulation on the issue even though it is most likely unnecessary.