I’ve been trying to figure out what the Google/Verizon announcement means. It’s not easy to do, in large part because the announcement doesn’t precisely announce anything. It’s titled a “legislative framework proposal.” That is, on its own terms it’s not an agreement between two companies — neither is bound to do anything by it, which I guess is how they could deny last week’s New York Times report about a “deal on web pay tiers” — but it does represent a meeting of the minds between them about what ought to happen in the world, in particular what American (and presumably others’) law should become here.
That kind of mental-but-not-legal agreement can get away with being far more vague than a typical contract. It’s amenable to what Cass Sunstein calls “incompletely theorized agreements.” Cass’s work points out that parties who disagree on basic things — such as a would-be polity that wants to produce a constitution for the first time — risk coming away empty handed if they insist on their own views. But they don’t want to compromise, either. So what they do is strategically punt: they come up with texts that are intentionally vague, leaving it for another day to figure out what they mean in practice, so they can move on with a joint endeavor of some kind. There are lots of vague statements of that sort in the proposal, some of which are drawn from another likely-intentionally vague set of FCC principles about the Net. So, for example, under the proposal, carriers can’t engage in undue discrimination. They can do reasonable network management. There’s to be transparency, but not neutrality, for wireless at this time. These definitions would have to be much more fleshed out to understand what the agreement means, and lawyers use terms like these so that the parties’ different ideas of “undue,” “reasonable,” and “now” can be parked in peace under the same roof.
Here’s my own take so far — I figured it might be useful to share my own process in working this through rather than writing (yet) a firm advocacy piece for one view over another.
First, some of the differences in reaction to the proposal can be explained by what critics see as the alternatives. For some, the important thing to weigh is the straight policy merit of the proposal as they see it, without regard to what is possible given the array of interests pushing for different outcomes. Those idealists will find much to disagree with, since the proposal is so qualified, apparently representing horse-trading as much as some consistent set of principles at work. For others, the proposal is weighed in the context of the status quo and where it’s likely to go. That includes Google, which said in a blog entry today:
But given political realities, this particular issue has been intractable in Washington for several years now. At this time there are no enforceable protections – at the Federal Communications Commission or anywhere else – against even the worst forms of carrier discrimination against Internet traffic.
With that in mind, we decided to partner with a major broadband provider on the best policy solution we could devise together. We’re not saying this solution is perfect, but we believe that a proposal that locks in key enforceable protections for consumers is preferable to no protection at all.
The FCC protections referenced by Google (and incorporated in part in the proposed framework) are the principles first articulated in 2005 as a Commission policy statement — oddly not easy to find online in a clean form, but quoted in lots of places (Formal reference: “In re Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities,” 20 F.C.C.R. 14,986 (2005).)
Those principles were applied in an action by the FCC against Comcast, which had been quietly restricting peer-to-peer traffic to and from its subscribers. Comcast was told it couldn’t do that in the awkwardly titled “In re Formal Complaint of Free Press and Public Knowledge Against Comcast Corp. for Secretly Degrading Peer-to-Peer Applications,” 23 F.C.C.R. 13,028 (2008) — you can read former Chairman Kevin Martin’s statement on the matter here. By the time of the FCC’s resolution, Comcast had basically already stopped discriminating, which made the order merely demand transparency about its practices, with a threat of further consequences should Comcast start discriminating again. Comcast appealed the FCC order to the federal courts. In the meantime, the original FCC principles were reiterated and elaborated in a proposed formal rulemaking (an “NPRM”) that got going in the fall of 2009. While that rulemaking was ongoing, the Comcast appeal of the 2008 order was heard and decided by the D.C. Circuit.
Comcast had three complaints: first, the FCC had acted beyond the authority Congress gave it in telling Comcast what to do (or disclose) about its network management practices; second, the FCC should have come up with its rules in a rulemaking rather than a simple order to Comcast after receiving a complaint; third, that the FCC’s order was so poorly reasoned as to deserve reversal by the appellate court. In April 2010, the D.C. Circuit held that the FCC indeed had acted beyond its authority, and so didn’t move on to the second and third objections by Comcast. That finding put the very rulemaking that Comcast had demanded, and that was by then in progress, in jeopardy — leading to the “no enforceable protections” status quo that Google says was an important reason for it to work with Verizon to get some commitment on net neutrality.
So, what does that commitment look like? The proposal is aimed for Congress to adopt in part to clarify the FCC’s ability to regulate here, and it can be divided into two types of suggestions: one about the ground rules (limited by the vague language sampled above) to be observed by ISPs, and one that’s meta, i.e. about who should make and enforce whatever rules there are to be.
First, the ground rules. The opening ones affirm concepts of net neutrality, with plenty of exceptions. Under “Consumer Protections,” the document repeats the essence of some of the FCC’s original principles: an ISP (well, “broadband Internet access service provider”) cannot prevent its users from “sending and receiving lawful content,” “running lawful applications and … services,” and “connecting their choice of legal devices.” That’s consumer-friendly, although some critics don’t like terms like “lawful” — is an ISP to say what’s legal and what’s not?
Next is a non-discrimination requirement:
In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users. Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.
So, a commitment to net neutrality, at least against violations that cause “meaningful harm” to competition or to users. (Would anyone care if a violation caused no harm, or meaningless harm?) The kind of pay for priority arrangements that I discussed in an earlier blog/NYT short piece are generally not allowed — unless they are when the presumption against them is rebutted, using criteria or ideals not specified in the framework. Discrimination for traffic management is to be OK — as it would be under the FCC’s proposed (but now frozen) rules.
Putting aside for the moment who gets to decide what counts as a fair reason to prioritize Internet traffic, or what amounts to “meaningful harm” — these are meta issues of enforcement — the other notable substantive provisions are for transparency, wireless and the intriguingly-labeled “additional online services.”
On transparency, providers would have to disclose their network management practices and “capabilities” — presumably better data about expected connection rates other than something like “UP TO FIFTY Mb/S!” That’s a good feature.
The wireless section says:
Because of the unique technical and operational characteristics of wireless networks, and the competitive and still-developing nature of wireless broadband services, only the transparency principle would apply to wireless broadband at this time.
For many net neutrality advocates this is the most worrisome part of the framework. The FCC’s original principles did not distinguish between wireless and wired networks, and its proposed rulemaking — again, stalled thanks to the Comcast decision — unlike the Google/Verizon framework, cut little slack to wireless providers on this score. On the fact that the framework is less restrictive to wireless providers, Google says, in essence, “Don’t blame us; we’re not thrilled with it either, but sometimes you have to compromise.” The way to give the least weight to this provision is to say: it’s only “at this time.” There might be some change later if systemic problems arose on wireless. And in the meantime the U.S. Congress’s GAO would keep an eye on things:
The U.S. Government Accountability Office would report to Congress annually on the continued development and robustness of wireless broadband Internet access services.
Of course, reports happen all the time — seeing a report’s warnings or recommendations find their way into federal law through further Congressional action is a steep hill to climb. Some critics have said: who cares about network neutrality for regular broadband; wireless is the important part.
I’m not so sure. If the framework had said the opposite — Verizon is OK with network neutrality for wireless but not for regular broadband — I can imagine many critics being just as upset, saying that wireless is still ancillary and that full broadband, with consumers’ wi-fi attached, is what really matters. I guess they’d say that both matter. I’m skeptical myself of rules that carve a difference between them — one point of the Internet is to be medium-agnostic — but I’m less inclined to find an evil plan lurking in the differentiation. I can see that bandwidth management, at least, can be more crucial for wireless than wired at this stage in its development, and a Verizon might not feel comfortable having to justify any policies in those terms as an exception to a network neutrality rule. I’m less confident that there’s robust competition in the wireless Internet space — there are still only a handful or providers, and switching among them is costly.
Finally, additional online services:
A provider that offers a broadband Internet access service complying with the above principles could offer any other additional or differentiated services. Such other services would have to be distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services and could include traffic prioritization. The FCC would publish an annual report on the effect of these additional services, and immediately report if it finds at any time that these services threaten the meaningful availability of broadband Internet access services or have been devised or promoted in a manner designed to evade these consumer protections.
What’s an “additional or differentiated” service? One way to understand is to realize that many common Internet broadband connections already piggyback on other, legacy connections. The coaxial cable that comes into a house bearing decades’ worth of cable TV was partially repurposed by Comcast to offer Internet, too.
So one pipe offers two very different things, and the rules telling Comcast what it can and must allow over the cable TV part of the pipe are very different from the rules, if any, that might apply to the Internet part. As I wrote in FOI:
Those with cable or satellite television have their TV experiences mediated through a set-top box provided or specified by the cable or satellite company. The box referees what standard and premium channels have been paid for, what pay-per-view content should be shown, and what other features are offered through the service. The cable television experience is a walled garden. Should a cable or satellite company choose to offer a new feature in the lineup called the “Internet channel,” it could decide which Web sites to allow and which to prohibit. It could offer a channel that remains permanently tuned to one Web site, or a channel that could be steered among a preselected set of sites, or a channel that can be tuned to any Internet destination the subscriber enters so long as it is not on a blacklist maintained by the cable or satellite provider. Indeed, some video game consoles are configured for broader Internet access in this manner. Puzzlingly, parties to the network neutrality debate have yet to weigh in on this phenomenon.
So: when cable TV companies started adding Internet access to their offerings, the “product” was separate enough that the companies’ practices on one didn’t, and weren’t expected to, translate to the other. From what I can tell, “additional or differentiated services” are the prospect that a company offering Internet access might try to bust into something like … cable TV. Net neutrality, and the Google/Verizon framework’s own principles, wouldn’t allow an ISP to block Vimeo while allowing YouTube. But if that ISP wanted to (re)invent a product called “Cable TV,” and use broadband to deliver the bits, it could block AMC while allowing HBO. Other such products might be “telephone,” “radio,” and “movies on demand.” Each of these has Internet instantiations now — think Skype, Pandora, and Netflix online — but a Verizon or Comcast might someday want to offer a standalone product, exclusively, with any competitors available only through the Internet half of the ISP’s connection. Another analogy that might help: iPhone applications vs. its Safari browser. Steve Jobs gets to say what apps are permitted to appear on the iPhone, and can cut nearly any deal he wants to, say, ban or allow Skype or an email app (say, from Google) that could compete with the iPhone’s own Apple Mail app. But any of these rejected apps, if they can figure out how to establish themselves simply on the Web, could still be accessed by iPhone users who run the Safari Web browser and then visit the site for the app.
On the iPhone this might feel a bit like being relegated to Siberia for an app developer: it’s hard to have people type in a URL every time they want to run the app, compared to just clicking on a single icon. But presumably this wouldn’t be as much of a burden in the “additional services” world that Google and Verizon are referring to. There, the Internet is the main attraction, or at least one distinct from any standalone applications that an ISP tries to deploy over the very same bandwidth. Cable TV in my living room is just apples to the orange of Internet access on a PC or tablet elsewhere in the house. Still, some critics fear futures where the tail could wag the dog — futures very much like the present situation on an iPhone.
OK, on to the procedural stuff. When the FCC cried foul on Comcast’s throttling of peer-to-peer activity, one of Comcast’s objections was that it was acting case-by-case, rather than setting up a formal rule through lengthy rulemaking procedures that involve public participation. The Google/Verizon proposal calls for eliminating rulemaking full stop, keeping the FCC to case-by-case adjudications of rules laid down by Congress — presumably rules based on the substantive principles reviewed above. Some critics cheer that proposal, eager to see the FCC’s intervention in Internet affairs limited to, say, network neutrality regulation, rather than, say, content control. EFF calls it a “promising new approach.”
I’m not so sure. As almost anyone to this debate would agree, network neutrality is complicated, and the gap between what Congress lays out and what ISPs and others are actually bound to do and not do can be large. The framework seems to suggest filling that gap with private rules:
Parties would be encouraged to use non-governmental dispute resolution processes established by independent, widely-recognized Internet community governance initiatives, and the FCC would be directed to give appropriate deference to decisions or advisory opinions of such groups.
People like this idea to the extent they think these non-governmental processes will produce more favorable rules for their interests compared to those of the FCC, but it’s vague enough to make it hard to predict what will happen. (That might be why the EFF labels this idea merely “interesting.”) And, of course, there’s no definition of appropriate deference. When should the FCC be told to just abide by a private practice, and when to ignore it?
My sense is that this section of the framework arises from both Verizon’s and Google’s distrust of processes in Washington, DC — despite both being perfectly able to function smoothly there — and a corresponding sense that the big stakeholders can just work it out together, as the framework itself was done. In almost every forum, public and private, big and little, those who believe they represent the little guy, the average Internet user, or the public interest will have reasons to think they’ll not be fully heard. At the very least, it’s clear that the substantive ideas represented in the Google/Verizon proposal are important enough not to simply be left to these two players. Both freely admit as much — they call the framework simply a starting point, soliciting others’ views, and acknowledging that it’s ultimately up to bodies like the U.S. Congress to decide what the rules will be and how they’ll be refined and enforced. But their opening bid is to ask Congress to lay down a few rules and then butt out — leaving the FCC to play a limited role in enforcement, and making the bar for adjustment one where Congress would have to revisit the issue, such as for wireless, if trouble is seen there.
So what’s my bottom line right now? I think the FCC’s stalled rulemaking had been very much on target. From what I can tell, it would not have rained too much on the parades of the network providers for them to deal with the limits imposed there — existing business models would not have been touched at all. And it’s easier to change an FCC rule, especially if one is a major telecoms player, than a Congressional statute.
I’m not sure, as a practical matter, that Congress would pass rules that mirror those the FCC was moving towards, and so the choice may be between a status quo that’s murky, and one with a substantive compromise not far from where the Google/Verizon document lands. I wouldn’t mind watching and waiting on some of these issues, especially if full transparency of practices is part of the deal, if action wouldn’t be too difficult to take later. I’m left wondering what’s really in it for Google with a deal like this. (James Boyle thinks Google might just be naive.) I can see why Verizon would like it — even as the framework anticipates some sacrifices by the telecoms companies that they currently don’t have to make. For Google, it seems more complicated. But the more important question is whether it’s a good idea, both on its own merits and in the context of political realities.
I’m considering this post only version 1.0 — I welcome reactions, and I’ll make updates as my thinking sharpens up on it. …JZ
Against the proposal
–Wired’s Eliot Van Buskirk offers general implications and criticisms
–Jeff Jarvis calls out the carving out of the mobile and “differentiated” Internet market (Josh Marshall says, “a bit inflammatory but unfortunately pretty much captures it.”)
Pointing out the $2 million fine cap, Marvin Ammori says Google has gone from “Don’t Be Evil” to “Greedier than BP” in record time
James Boyle calls the proposal “a telephone company’s vision of network neutrality” and questions whether Google has compromised itself out of its principles.
Back in April, Babbage argued that Verizon was attempting the blur the lines between “maintaining a network and offering a service over that network” to gut regulation. Read now with new context.
Wired’s Ryan Singel accuses Google of cynically letting openness take a backseat to interests of market dominance and wealth, with a focus on on the late, great Nexus One.
Dan Gillmor writes: “You should not trust Verizon or other carriers, or Google for that matter, to follow through in ways that are truly in the interest of the kind of open networks the nation needs.”
For the proposal
Larry Downes calls the proposal an “important step in rescuing the Net neutrality crisis from the political cesspool and returning it where it belongs–a technical problem solved with technical solutions.”
Jim Harper argues that the proposal ought to have cut the FCC out of internet regulation entirely.