Preserving The Openness Of The Internet

Published Date: 02 Nov 2017

The Internet, which effectively came into existence in 1969, was designed to be open and transparent so that all could use it freely. The FCC (Federal Communications Commission), established by the Communications Act of 1934, in 2010 came up with a report and order to ‘preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression’ [1]by adopting and implementing three basic rules that would help this cause:-

Transparency

No blocking

No unreasonable discrimination

1The openness of the Internet has to be protected so that it continues to be a medium that can be used and developed by anyone who wishes to. Freedom is an important aspect that has been omnipresent on the Internet and at no cost should this be compromised. It is this factor that has made the Internet the medium that it is today. If groups involved in making access and content over the Internet available to the user are not kept in check, they might misuse their power, thus affecting the transparency and openness prevalent on the Internet.

Need for the rules: - It has been observed that certain groups take unfair advantage of the position that they hold in the cycle to provide content and applications to the user. Cases such as Comcast v/s FCC and Verizon v/s FCC (discussed later in the brief) provide support to the fact that broadband ISPs are against disclosing their network management practices to avoid being put under scrutiny if some of their principles and practices go against the rules and orders of the FCC. [1], [2], [3], [4], [5]

Point of View

The Internet was designed keeping in mind the needs and services of the users and it will be most effectively utilized when it is kept that way. As a member of the Public Interest Group, it is our duty to ensure that the three rules adopted by the FCC are always kept in practice when it comes to any aspect of the Internet, right from generation of data content, to its transmission and ultimately how it is finally used by the consumer without it being subject to any kind of exploitation from other parties involved in this chain to benefit themselves in a manner that is against these rules. Why we take this stand in this issue is because of the First Amendment which advocates freedom for all forms of press and media. [1] To guarantee the freedom of the press, the First Amendment was incorporated into the US constitution, which states that:-

2"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."[6], [7]

The term press used in this context can be extrapolated to include media such as the web along with radio as well as TV. In essence, it states that the government has no censorship right over the content that is being broadcasted over these modes of communication. [1], [6], [7]

Policy Options

Critique of policy options

The ruling of the FCC in 2010 that advocated the implementation of the following practices:-

Transparency:- All broadband providers, fixed as well as mobile, should disclose all aspects of their operational as well as managerial activities including network management practices, terms and conditions of service along with performance characteristics.[1]

This is a very essential practice that has to be followed by ISPs as it hides nothing from the users and application providers. The users have every right to know for what service are they being charged and similarly, the application providers want to know how their content is being delivered to the user. Implementing this policy will not leave any scope for malpractice for either group involved.[1]

No blocking:- It is expected of fixed broadband providers to not deny access to its users of any content that is lawful while mobile broadband providers are expected to provide access to its consumers of all applications that might compete with its video telephony as well as voice services.[1]

3There might be some cases arising where the ISP may have a service of itself and while allowing a similar service from an application provider to be made available to the user, it might be providing a more lucrative option to the user over its service. For e.g.: AT&T might feel that Google Voice application might lure its customers to make less voice calls over its network and use Google Voice more frequently. This rule will not allow AT&T to impede or disallow usage of Google Voice over its network. [1], [8]

No unreasonable discrimination: - It is expected of the fixed broadband providers to not discriminate while transmitting lawful network traffic.

When a broadband ISP notices that two services are closely competing for acceptance from the user, it might try to lure the application providers by asking them for monetary incentives to prioritize their data over other such services. This rule clearly prohibits broadband ISPs from indulging in such practices. [1]

Point of View of other concerned Parties and how they might exploit these rules to their benefit

Broadband ISPs:- They are the medium which facilitate access to the internet by transferring and delivering the web content to consumers that subscribe to them (e.g.: Qwest). In accordance with the order laid down by the FCC asking broadband ISPs to keep in mind the three rules while implementing their services, it is expected of them to provide unrestricted access to all lawful content to their users and not discriminate between legitimate network traffic. However, it has come to our understanding that they have potentially three reasons to not comply with the rules put in place by the FCC. Concisely, they can be put forth as:-

4Broadband ISPs may have monetary incentives to favor specific classes of edge providers with whom they have affiliations to some sort and thus degrade the content of unaffiliated providers by controlling the network traffic which affects the quality of the content and services available to the end-users. Global players such as Google, which commented that, ‘Broadband providers will have a natural incentive to use prioritization to favor their own services’ [1] and DISH made the statement that, ‘Vertically-integrated broadband providers have the incentive and ability to discriminate against competitors’, [1] have shown that this is indeed a relevant issue and poses risk to the openness and freedom of the Internet. Broadband ISPs also have major incentive to interfere with and block or degrade telephony and pay-television services provided by third-party Internet based services that affect the revenue generated by the ISPs by posing competition to them. It has been made public by several MVPDs (Multichannel Video Programming Distributor) that online content aggregators and providers such as Netflix, iTunes are presenting stiff competition to them. [1]

Broadband ISPs have strong incentives to act as gate-keepers and charge edge-providers extra money who are already paying charges to get access to the Internet, for prioritized access to end-users. They can be subject to even more exploitation if the particular ISP is the only means for the edge provider to reach the end-user. The extra-money that is being charged from these edge-providers will definitely affect their profit-margins and could potentially deter them from investing in new technologies and resources, thus affecting the quality of service.[1]

Continuing on the same lines, if broadband ISPs can charge edge-providers for granting them prioritized access, it can also degrade and decline the quality of service to edge-providers who ‘opt’ for non-prioritized access thus compelling them to pay to get ‘equal’ access. This will heavily affect the number of end-users an edge-provider is able to reach as that will determine the profits it is able to generate through its content and services.[1]

Pertinent cases:

5Comcast v/s FCC in 2010:- Comcast challenged the FCC’s right asking it to disclose its network management practices and took the FCC to court. The court made the ruling in favor of Comcast and stated that the FCC did not have sufficient authority nor was there a framework put in place to regulate the network management practices of a broadband ISP. Earlier in 2007, FCC had taken action against Comcast for blocking Bit-torrent downloads and peer-to-peer networking applications, thus going against the principles of net-neutrality. [1], [3], [4], [5], [12]

Verizon v/s FCC in 2012:- Verizon challenged the FCC’s authority to impose rules and orders for preserving the openness of the Internet. It said that these rules imposed are in excess of the FCC’s statutory authority and are violating the first and fifth amendments and went as far as labeling them ‘arbitrary and capricious’ under the Administrative Procedure Act. The court is yet to give its verdict. [1], [2], [9]

6Mobile broadband providers:- It has been stated by the FCC that ‘Consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission are as important when end users are accessing the Internet via mobile broadband as via fixed. And there have been instances of mobile providers blocking certain third-party applications, particularly applications that compete with the provider’s own offerings; relatedly, concerns have been raised about inadequate transparency regarding network management practices.’ [1] However, it has also been noted by the FCC that some special considerations should be given to mobile broadband service, because it being an earlier-stage platform as compared to fixed broadband, has undergone a lot of evolution in a very short span of time. Earlier, mobile phones were only employed to make voice calls and exchange text messages through the SMS (Short Messaging Service) facility being made available to them. As time has progressed, mobile broadband has become equally popular a medium to establish access to the Internet and its popularity has only increased with the introduction of communication technologies such as 4G and LTE. This has given rise to development of thousands of specialized mobile applications over interfaces such as android, iOS, Symbian, etc. allowing users access to e-Readers, hourly weather updates, real-time sports scores and much more. Users also have far greater choices in choosing their mobile broadband provider as compared to fixed broadband providers. Due to limited spectrum availability and ability to operate in only certain regions of the country, mobile broadband providers are faced with far greater constraints as compared to fixed providers. The FCC understands that due to the dynamic nature of this medium, it is difficult for them to disclose all network management principles, but as it is essential for application providers and end-users to be aware of them, the FCC grants them no leniency when it comes to Transparency. On the issue of no-blocking, the FCC states that, " The no blocking rule that we adopt for mobile broadband involves distinct treatment of applications that compete with the provider’s voice and video telephony services, whereas we have adopted a broader traffic-based approach for fixed broadband.’[1]

Broadband Application Providers: -

7It has to be realized that fixed and mobile broadband providers are just the medium that facilitate access to the internet for the users and it is the groups that are on the ends of this pipeline, namely the users and the application providers that are the most important components of this chain and the converse is not true. It thus has to be taken care of that the interests of the application providers is of utmost importance and nothing should impede or come in the way that negatively affects the quality of service that they provide to the user through their content and applications. This basically translates to saying that they should not be exploited and unlawfully charged for getting prioritized access in getting their content delivered to the end-user. Conversely, it should also be noted that these application providers should not offer monetary incentives to broadband providers to get priority access for their applications and content. An imaginary example to demonstrate this is to imagine if Vonage offers some sort of an incentive to providers to allow better voice quality and faster access for its service as compared to what it will provide for Google Voice so that more customers choose Vonage. [1]

Federal Communications Commission (FCC): - While looking at the points of view, interests and loop-holes from the point of view of other parties concerned, we have extensively discussed the role that the FCC plays and the guidelines and orders that it has laid-down for them. As a member of the Public Interest Group (PIG), we whole-heartedly support the FCC and the stand that they have taken and hope that their stance will only grow stronger on these issues that seek to preserve the openness of the Internet. It has to be kept in mind that thought he FCC has done a fine job in establishing these rules, they have to be vigilant about the fact that whether these orders are being complied with by all the parties concerned and especially the broadband providers who have the most incentive to exploit them. They have to ensure that the quality of content and services being made available to the user is of the highest degree and they have options to switch if they feel the need to. The FCC should take immediate and corrective action against the parties that seek to exploit these rules and impose stringent punishment so that it serves as an example and as a deterrent for groups that might look to do the same in the future for incentives. [1]

Recommendations

The Public Interest Group firmly believes that the market for any kind of product works most efficiently when it operates with the motto- ‘Consumer is King’. We also understand that the market behaves at its optimum when all parties involved are satisfied with their roles and the returns that they garner. Thus, it would be inconsiderate to only look at the market from the consumers’ point of view.

8We would like to propose the following recommendations:-

The judicial and legislative standing of the FCC should be made stronger so that broadband ISPs do not question its right to make rules and policies and it’s authority to regulate & monitor their network management practices as was the case with Verizon.[1], [2], [9]

There should be a committee appointed, one which represents each group. Thus, the broadband ISPs committee should consist of the CEOs of the major as well as minor players in the field. The application providers should have one such committee of their own being represented by major as well as minor players in the field. The consumers should be represented by public litigators who understand the market, the rules and are also aware of the judicial nitty-gritties. There should be a semi-annual meeting where all three committees should converge and bring forth their grievances and point-of-views for discussion and agree on decisions that conform to their views. This will ensure that legal recourse is not required to settle all disputes as has been the case in the past. [1]

A fast-track and separate court of law must be established to deal with cases of dispute between the various parties. This will enable the court to arrive on decisions much quicker than otherwise and the consumer will not have to suffer due to the extensive time taken to take a decision. [1]

9There should be a committee appointed which reviews mergers and acquisitions taking place and try to determine how it will affect competition in the market and the openness of the Internet. According to Susan Crawford of Bloomberg, the Comcast-NBC merger made ‘Comcast strong and the web-users weak’. [11] It adversely affected competition and due to the monopoly it gained over the broadband market, Comcast did not have any incentive to lower its prices and upgrade its networks by deploying fiber-optics technology. The FCC should have learnt from the AOL-Time Warner merger which, although failed, aimed to capitalize on the ‘dot-com bubble’ by establishing a monopoly in the broadband market[10], [11]

The FCC should appoint an advisory committee which comprises of representatives from the ISPs, the application providers as well as from the PIG so that before devising a new policy and implementing it, the FCC can take the advice and hear the recommendations of these representatives so that they are aware of the disputes, loop-holes and problems that it might pose in the long run.[1]

Stringent action should be taken against groups that seek to exploit the power that they hold and cause harm of any sort to others. This will deter the parties involved from illegitimate use of their power. However, care must be taken that the consumer is affected in the least possible manner while providing justice. [1]

As this domain of technology is expanding daily and its limits are yet unknown, the FCC should keep this in mind and ensure that technologies and devices that are becoming obsolete should be replaced. Also, thorough research should be done before introducing a technology for use in the market. For example, to replace 3G technology, fourth generation networks 4G and 4G LTE (Long term evolution) made their entry into the market in quick succession with LTE being the obvious choice for consumers due to advanced speeds and more data capabilities. Thus, some investment in 4G networks by companies may not be worth it and this cost will, in all probability, be passed on to the consumer. [1]

10