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I've been watching the net neutrality debate recently, and it has heated up. While the goals might seem reasonable—"to keep the Internet free and open to all"—a careful review of the pending legislation paints a different picture. The bills to amend the Communications Act and the antitrust laws would stifle the technological enhancement of the Internet, to the advantage of the big guys like Google, Amazon.com, eBay and Yahoo!.

Jeffrey Krauss
The little guys don't realize this. There's an enormous coalition supporting net neutrality, hundreds of individuals and organizations and companies that I have never heard of. But if you follow the money, you find that it's really Google, Amazon.com, eBay and Yahoo! that are behind this campaign. It started out with a reasonable goal—to prohibit ISPs from blocking user access to Web sites. Never mind that there is no evidence that any ISP was blocking access. But like many Washington campaigns, it soon evolved into a straight attempt by the big guys to tilt business relationships and prevent Internet technical improvements from creating business opportunities for the little guys.

I've looked at three pending bills, and they have nearly identical language dealing with service quality. Basically, they all say that if a network operator offers an enhanced service, that enhanced service quality must be offered to all users, for no additional charge. It has the effect of prohibiting quality of service enhancements. This language appears in H.R. 5417, Congressman Sensenbrenner's bill to amend the Clayton Act antitrust laws. It appears in H.R. 5273, Congressman Markey's bill to amend the Communications Act. And it appears in S. 2917, Sen. Snowe's bill to amend the Communications Act.

So these bills would prohibit you from designing a network that recognizes VoIP traffic and gives it higher priority than Web browsing or e-mail. They would prohibit you from employing devices that recognize peer-to-peer traffic, and give it a lower priority. What? You say that your voice telephone service, which uses the PacketCable specifications designed by CableLabs, gives better quality of service control than the versions offered by Skype or Vonage? That's prohibited. Too bad!

These bills give you the right to protect network security. They give you the right to offer parental controls to block indecency, and to offer software to control spam. But they don't give you the right to use network intelligence to block spam, or to identify and control peer-to-peer traffic. In other words, Google, Amazon.com, eBay and Yahoo! are perfectly happy with the way the Internet is right now, and they don't want it to get any smarter.

Maybe one of the original intentions was to prevent an ISP from, for example, giving subscribers a better user experience when buying merchandise from an ISP-affiliated Web vendor than their user experience on Amazon.com. But for most Web sites, the user experience is related to how long it takes to download graphics. And that is strongly affected by the vendor's server capacities and locations, and whether it has a contract with someone like Akamai to cache content at multiple locations. In other words, there are already commercial mechanisms in place that allow Web vendors to achieve improved quality of service, but these bills would prohibit ISPs from offering such services.

Small cable operators are in a particularly vulnerable position. They are already being held up by powerful broadcasters in retransmission consent agreements. These capacity-strapped systems are being forced to give up channel capacity to cable networks owned by the commercial TV networks. It's easy to imagine those broadcasters demanding priority placement for a broadcaster-affiliated Web site. So maybe when a subscriber launches her browser, and her personal home page comes up showing perhaps the latest news and weather, she will be forced to watch the ABC news or the NBC weather. That would violate these bills, if they were enacted. But nothing in these bills protects ISPs from powerful content owners imposing their priorities unilaterally.

The bills to amend the Communications Act will allow anyone to complain to the FCC about any offerings or business arrangements that the complainant deems discriminatory. If the FCC doesn't act within 90 days—easy to imagine once the complaint backlog grows out of control—the complaint would be automatically granted. Then the FCC could assess fines up to $75,000 against the ISP, as well as ordering the ISP to pay damages to the complaining party. Not only would they prohibit certain kinds of network operations, but these bills would also constrain network design and limit the deployment of new network capabilities. Even designing in the capability to detect different kinds of traffic, even without actually giving preference to one type of traffic over another, would become illegal!

The companies funding the legislative effort have dominant positions in today's market. If new technology or new services were to be deployed that allow competitors to leapfrog their dominant market position, that's bad for them. The goal of this legislation is to make sure that doesn't happen. Bad idea! We need to let the technology drive the evolution of the Internet, not legislation intended to restrict its evolution.

Have a comment? Contact Jeff via e-mail at: jkrauss@krauss.ws

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