PeerFlow

Sensing History: Yoo Re Cherry

Dave Farber posted a response by Chris Yoo to Barb Cherry's post about myths and historical errors. Here's Chris's reponse in full. To me, it seems that he is conceding that she's right about the history, that antitrust says nothing about ISP competition, and that a few ISPs control most of the Internet in the U.S. But read it for yourself:

From: Christopher S. Yoo [mailto:csyoo@law.upenn.edu]

I don't pretend to be an expert on the history of common carriage regulation. Barbara has spent far more time thinking about this than I have, so I always appreciate hearing her reactions and learn from reading her work. That said, here are a few thoughts.

It is true that common carriage long predates both the Granger Movement and the Interstate Commerce Act of 1887. That said, one of the central problems is that the historic justifications for common carriage have not aged very well. Often times the common carriage obligations were regarded as a quid pro quo for a government grant of some economic privilege. Other times they were justified because the industry was "affected with a public interest," a concept that is usually traced to the landmark Supreme Court case Munn v. Illinois (1876). The Supreme Court struggled to imbue that standard with content (along with a number of early treatises trying to make sense of the concept) and would ultimately abandon it as analytically empty in Nebbia v. New York (1934). Legal scholars, such as Thomas Nachbar and James Speta in addition to Barbara, have attempted to recover lessons from this era. I have never spoken to Barbara about this in particular, but both Tom and Jim have noted the difficulty in extracting any useful lessons from the history.

The rest after the jump.

Social Welfare: Reed Asks Yoo

David P. Reed asks a question and Christopher S. Yoo responds on Farber's Interesting People list. I'm posting both in full here, with my thoughts at the end; basically, law isn't a science, and anecdotes can turn into legal cases; some have already regarding net neutrality.

From: David P. Reed [dpreed@reed.com]
Sent: Saturday, May 10, 2008 11:50 AM
To: David Farber
Cc: ip
Subject: Re: [IP] re-distribution of op-ed on Net Neutrality -- a reaction and a reply from one of the authors

I read through the long comment by Chris Yoo below, and as a non-lawyer interested in policy, I ask the following simple question:

Is there a well-regarded (one might ask for scientifically reasoned) argument that antitrust law as currently interpreted and practiced has a substantial impact measured in some currency like $ on social welfare?

Otherwise this entire argument is about nothing more than vaporware proceeding from a faith that competition (however loosely defined) creates social welfare best. AFAIK, this is largely an article of faith, just as the "End of History" was a grand article of faith posited by many of the same people as "truth".

It is just not fair to imply that the core of "today's settled antitrust law" carries even the level of weight as Darwin's Theory of Evolution. There have been no replicable studies of its practice.

Law professors and lawyers who don't challenge its truthiness squarely are merely behaving as dogmatic mandarins always do - asserting authority of professional status, rather than rigor of reasoning, experiment, or argument.

I say this not as FOX News or Hillary Clinton would call an elitist, but as a person who genuinely is unconvinced by magical faith in authorities.

That's Reed's question. Yoo's response, and my thoughts, after the jump.

ISPs Escalate Ignoring FCC

Fox started the trend of ignoring the FCC when it does something they don't like. Now the duopoly has gotten up to the same trick:

Comcast, AT&T, Time Warner Cable, and cable research company CableLabs were all invited to participate several weeks ago, but declined, Martin said. The commission again reached out to Comcast after the announcement this week that it would develop a P2P bill of rights with Pando Networks, but they again sent their regrets, he said.

— ISPs Give FCC Cold Shoulder at Internet Hearing, by Chloe Albanesius, PCMag.com, 04.17.08

You may recall at the previous hearing, at Harvard, FCC chair Kevin Martin couldn't hear the difference between participant and consumer, while Comcast hired shills off the street to take up seats so people with things to say couldn't. Now the duopoly is painting the FCC as unduly critical of themselves, and the press is going along with that, including the hometown Silicon Valley newspaper, the San Jose Mercury News, which should know better:

Subpoena for Comcast from NY State

As I've been predicting since October:

“We have requested information from the company via subpoena,” Jeffrey Lerner, a spokesman for Attorney General Andrew Cuomo, said Tuesday.

Comcast said it was co-operating with the AG's office.

— New York subpoenas Comcast on traffic shaping, Associated Press, February 26, 2008 at 4:08 PM EST

So far it's just a subpoena. We'll see if it turns into a full-fledged lawsuit. And maybe Comcast could start cooperating with its own customers....

-jsq

PS: Why did the New York Times pick up this story only a day after the Canadian Globe and Mail?

WSJ Fears Innovation: Net Neutrality As Internet Wrecking Ball

Apparently this WSJ opinion writer couldn't actually argue with Ed Markey's net neutrality bill, so he made up a straw man:

Imagine a town that has all sorts of gasoline pipelines running by it but only one gas pump. Rationing is inevitable. So are price controls.

Everyone gets equal amounts, except of course first responders like police and ambulances, which should get all the gas they want. And, well, so should the mayor. And if you can make a good business case that you work 60 miles away, you can file paperwork and perhaps pull some strings for more gas. How about those kids hot-rodding around town who can't drive 55? They get last dibs, and maybe we can sneak in some gas thinner to slow down their engines and not waste gas.

— Internet Wrecking Ball, By Andy Kessler, Wall Street Journal, February 25, 2008; Page A15

What's especially amusing about this strawman is that it's what the duopoly is planning as they do away with net neutrality, except it's not first responders or governments that will get favored bandwidth: it's Hollywood. Meanwhile, Markey's bill doesn't say any of that. It doesn't include any regulation at all.

Kessler invokes Orwell:

This is the essence of the Ed Markey's (D., Mass.) Orwellian-named Internet Freedom Preservation Act of 2008, which would foist network neutrality on the wild and woolly Internet.

Kessler maybe wasn't around in the earlier days of the Internet, or he would know that net neutrality is what we used to have, until it got chipped away starting in about the year 2000, as the FCC failed to enforce the Unbundled Network Elements (UNE) of the Telecommunications Act of 1996, and reclassified cable modem access as an information service in August 2002, wireline broadband in August 2005, and wireless broadband in March 2007. The FCC stripped common carriage status from Internet provision, something never done before in the U.S. So what Markey's bill is actually trying to do is to preserve the freedom the Internet used to have before the present administration and the duopoly systematically tried to do away with it. That's the opposite of Orwellian: that's the plain truth.

If Kessler did know Internet history, or had been around when we were making it, he would know not to write things like this:

Shills By Comcast at FCC Hearing

This appears to be the week for Comcast to really make a fool of itself.

Comcast acknowledges that it hired people to take up room at an F.C.C. hearing into its practices.

— Grassroots Support? Or Astroturf? by Sam Gustin, Portfolio.com, Feb 26 2008

Some reports said the shills were Comcast employees, but it turns out many of them were hired off the street. They were given yellow highlighters to put in their shirt pockets so they could identify themselves to each other.

Comcast, the company that claims to understand the Internet so well it thinks faking TCP Resets is good network management (which is what that FCC meeting was about), apparently thought in this day of cell phone cameras and blog posts that nobody would notice....

-jsq

Time Warner Volume Charging

Transparency via memo leak?

Metered Internet access is a fact of life for many broadband users around the world, but has been largely a nonfactor when it comes to wired broadband in the US. That may change, according to a memo leaked to the Broadband Reports forums. If the memo is to be believed, Time Warner Cable will be rolling out what it calls "Consumption Based Billing" on a trial basis in the Beaumont, Texas area.

Under the proposed scheme, new customers will be able to choose from a couple of different plans with varying bandwidth caps. They'll be given online tools to monitor usage and will be able to upgrade to the next higher tier of service to avoid charges for exceeding their monthly bandwidth limit. If the trial works well, Time Warner would then roll out bandwidth caps to current customers: "We will use the results of the trial to evaluate results for possible future nationwide rollouts," reads the memo.

Bandwidth caps have been a sore subject for some users who have found themselves bumping into mysterious, undefined limits. This past fall, a number of Comcast subscribers complained that their service was cut off after having reached Comcast's bandwidth limit.

— Leaked memo: Time Warner Cable to trial hard bandwidth caps, By Eric Bangeman, ars technica, January 16, 2008 - 04:12PM CT

If the memo is legitimate, it's good that Time Warner is going for more transparency. Although if they want transparency, why don't they just come out and announce what they're doing?

AT&T, Texas Football, and Legislators

AT&T tried to impress Texas legislators by streaming the football game in high definition:

"I'd never seen a football game on a big screen like that. It didn't look very good."

—Rep. Eddie Rodriguez, D-Austin, quoted in UNDER THE DOME Most Austin reps skipped football game - and lobby party, W. Gardner Selby, Austin American-Statesman, Saturday, December 01, 2007

I'm not sure AT&T wanted that kind of reaction to watching a Texas football team in Austin, the capital of the second most populous state. The local cableco in Austin, Time Warner, didn't have the game (Dallas Cowboys and Green Bay Packers), which was on the NFL Network, which has a deal with AT&T. Most legislators didn't even show up to watch. Interesting, considering that legislators and regulators are the real audience of the duopoly.

-jsq

Cox Interrupts eDonkey: Same Technique as Comcast with BitTorrent

The same person to bust Comcast's blocking of BitTorrent traffic was called upon to test Cox's system, and sure enough, he concluded with "conclusive proof" that eDonkey was getting the same treatment.

First Comcast, Now Cox Busted 'Managing' Traffic by Jason Lee Miller, Webpronews.com, Mon, 11/19/2007 - 10:51.

We asked regular user Robb Topolski, who was the first to discover Comcast's traffic shaping practices, to take a look at Cox connectivity a little more closely.

According to Topolski, Cox is in fact using traffic shaping to degrade p2p traffic. In analyzing a user log, he has concluded that Cox is using traffic shaping hardware to send forged TCP/IP packets with the RST (reset) flag set -- with the goal of disrupting eDonkey traffic. He's been unable to tell precisely what hardware Cox is using, but he notes that the technique being used is very similar to Comcast's treatment of BitTorrent.

— Cox Also Disrupting P2P Traffic, Using the same forged packet method as Comcast, by Karl, BroadbandReports.com, 03:35PM Thursday Nov 15 2007

The main difference between Comcast and Cox is that Cox says it's doing it, for the good of the user, of course. Still, which users exactly asked for their ISP to fake TCP packets? And how long before Cox trips up some business users, Like Comcast stifling Lotus Notes?

-jsq

FCC To End Cable Exclusive Deals for Apartments

Regulation by PR?

Why wait for a boring FCC meeting that no one will watch to announce a major policy, when you can talk to a New York Times reporter instead? Days before the official FCC meeting at which the issue will be discussed, FCC Chairman Kevin Martin has just told the newspaper that his agency is ready to strike down the exclusive contracts that cable operators have signed with apartment managers and homeowners' associations across the country.

— FCC to strike down exclusive apartment complex cable deals, By Nate Anderson, ars technica, October 29, 2007 - 01:45PM CT

Ars technica indicates that Martin sounds like he's serious on this one. Of course, Martin sounded serious about open access rules for 700Mhz spectrum, too, yet watered them down until they don't mean much. However, ars technica points out the biggest backers of this apartment rule change are telcos, so maybe he really means it this time. Hm, and I wonder who will sue this time?

Comcast Stifling BitTorrent

This was expected (cablecos, like telcos, want "freedom to degrade"), but is now confirmed:

Comcast Corp. actively interferes with attempts by some of its high-speed Internet subscribers to share files online, a move that runs counter to the tradition of treating all types of Net traffic equally.

The interference, which The Associated Press confirmed through nationwide tests, is the most drastic example yet of data discrimination by a U.S. Internet service provider. It involves company computers masquerading as those of its users.

If widely applied by other ISPs, the technology Comcast is using would be a crippling blow to the BitTorrent, eDonkey and Gnutella file-sharing networks. While these are mainly known as sources of copyright music, software and movies, BitTorrent in particular is emerging as a legitimate tool for quickly disseminating legal content.

— Comcast blocks some Internet traffic, Tests confirm data discrimination by number 2 U.S. service provider, by Jeff Chiu, AP, 19 Oct 2007

Comcast was denying blocking or throttling as recently as August (and as near as I can tell they still do deny it). Numerous users reported it, and the AP has now confirmed it. However, what Comcast is doing isn't precisely throttling.

Copper-Based Competitors

The chutzpah:

Ed Shakin, a lawyer for Verizon, said network-sharing requirements are no longer needed in certain cities now that cable companies and other competitors have rolled out Internet and phone service. "What competitors want are artificially low prices," he said. "It comes down to a fight about price, not availability."

— Telecom Changes Put Competition on the Line, By Kim Hart, Washington Post Staff Writer, Thursday, September 6, 2007; Page D01

So Verizon is reducing the number of competitors, but as long as there is at least one, that's enough, they say. Apparently Verizon thinks its competition is the Highlander: There Can Be Only One.

-jsq

Comcast's Secret Bandwidth Limits

Just when you think it's all telcos doing things dire for Internet freedom:

Comcast has warned broadband Internet customers across the country to curb their downloading or wind up on the curb.

The company has a bandwidth limitation that, if broken, can result in a 12-month suspension of service. The problem, according to customer complaints, is that the telecom giant refuses to reveal how much downloading is too much.

The company, which a few years ago advertised the service as “unlimited” has an “acceptable use policy” which enforces the invisible download limit.

The 23-part policy, states that it is a breach of contract to generate “levels of traffic sufficient to impede others' ability to send or retrieve information.” But nowhere does it detail what levels of traffic will impede others.

—Comcast Cuts Off Heavy Internet Users, Customers complain bandwidth limits are secret, By Joseph S. Enoch ConsumerAffairs.Com, August 24, 2007

And you have to wonder how long that AUP said that while Comcast was advertising "unlimited".

This part is especially enlightening:

Douglas said the company shuts off people's Internet if it affects the performance of their neighbors because often many people will share a connection on one data pipe.

So instead of fixing their bad topology, they penalize customers for using it.

Well, it's a free market, right? Comcast users who don't like it can switch to, er, if they're lucky and have any choice at all, probably to whichever of Verizon or AT&T happens to be in their area. There couldn't be any problems with those providers, could there?

Meanwhile, if you want to follow this Comcast controversy, here's the Comcast Broadband dispute blog that one of the cast-offs started, presumably using his new DSL connection.It's kind of like salmon organizing against a dam upstream.

-jsq

Global Media Consolidation

In case you thought media ownership in increasingly fewer hands was a uniquely U.S. problem, here's a handy graphic illustrating its worldwide scope. There are links to the research behind it.

-jsq

Framing Net Neutrality

Here's an interesting exercise in framing net neutrality:

On the one side are traditional media - phone and cable companies, the carriers - in rare agreement. They do not want to be regulated, and they want to preserve the profitability potential that protects their network upgrades. They are therefore joined by some hardware tech firms. On the other side is what might be called the internet-industrial complex - consisting of idealistic net community folks, small start-ups, large Silicon Valley corporations pretending to be both - and Hollywood, in another strange bed fellowship.

The US Congress is in the middle; by the latest count six bills are pending, and while none is likely to be passed for now, the process itself has been a boon.

— A third way for net neutrality, By Eli Noam, Financial Times, 29 August 2006

Note "internet-industrial complex", in analogy to Eisenhower's phrase, "military-industrial complex". Yet the cablecos and telcos are said to be "in rare agreement" when actually they have long been acting on the same side on this issue; after all, it's in both their (short-term) interests to keep the number of players down. With no competition, there's no real market, and thus no real competition (which long-term means they won't be competitive with their international competitors, which are already offering speeds ten times faster for similar prices).

Big Ed Retires

"Who else they gonna listen to? The public?"

Savetheinternet.com produced a memorable satire on the policies of just-retired AT&T CEO Ed Whitacre. We've already seen that new AT&T CEO Randal Stephenson isn't steering a much different course, and Time-Warner CEO Ed Parsons seems to think the cablecos and telcos are the original natives of the Internet and will win at Little Big Horn. Meanwhile, the FCC has time to try to regulate Cher. Maybe the FCC needs to hear some different opinions.

-jsq

Chief Parsons

This is the funniest thing I've seen in a while. Time-Warner CEO Richard Parsons says:

“The Googles of the world, they are the Custer of the modern world. We are the Sioux Nation. They will lose this war if they go to war. The notion that the new kids on the block have taken over is a false notion.”

— The Fighting Sioux, by Gunnar Peterson, 1 Raindrop, 11 May 2007

Which is amusing enough. Time-Warner thinks the cablecos and telcos are the original natives of the Internet? I beg to differ. Google, Yahoo!, YouTube, etc. are much more in the spirit of the original creators of the Internet technology and of the people who originally commercialized and privatized the Internet.

Speed Is Trivial

Sometimes Bob Frankston makes me shake my head in wonder:

Speed is trivial — the dial up modem completely trounced the entire Interactive TV industry thanks to the web which gave people a reason to find their own solutions without waiting for a service provider to deign to provision a path. As long as you don't over-defined the solution you'll get speed — it's hard not to.

— Re: We're Stuck In The Slow Lane Of The Information Trollway -- it's all about the billing relationship, Bob Frankston, Interesting People, Sat, 12 May 2007 20:13:50 -0400

Yes, back in the 1990s, video on demand and interactive TV were the big plans of the cablecos and telcos. They tried it. Users didn't buy it. Instead, participants bought modems and the web boomed.

Early Termination Fees?

Does your cable Internet provider charge an early termination fee?

Several providers -- including cable giant Comcast -- assured us that they did not impose early termination fees, which we reported as part of our blog item.

So imagine our surprise when someone sent us a copy of a recent Comcast memo to a county official in Virginia about a looming rate increase, which, way down at the end, in a footnote, contained the following:

"Two year term agreement required. $150 early termination fee applies if any service is cancelled or downgraded during the 2 year period."

Now That You Mention It, We Do Charge Early Termination Penalties... by Bob, hearusnow.org, at 04/18/07 01:15 PM

How could that be?