Year in Review: Network Neutrality

This year saw further developments in the United States regarding the neutrality of the internet with the FCC finding against the traffic management policies of Comcast, further support for the introduction of legislation requiring ISPs and content owners to respect the principles of an open internet and the introduction of data caps and pricing structures in the United States.

The argument that takes place with respect to the neutrality of the internet is one which sees essentially two differing approaches to the management of internet traffic.

On the one side proponents argue for an open internet through the use of end to end architecture and equality of priority of packets regardless of the type of communications protocol they use.

On the other ISPs and content holders seek to elevate some forms of traffic over others with ISPs charging money to allocate priority. The money is used to ensure that the infrastructure of a network is increased to cope with more and more traffic. Companies such as Microsoft, Google and YouTube are among those who are most likely to need or want priority.[1]

It has been widely recognised that this would have a dramatic impact on the openness of the internet with major content holders being able to secure their communications often at the expense of those that are more poorly funded. Translated to the music industry, a non neutral internet would see independent artists unable to access their audiences or build profiles with major label artists paying to have priority over them.[2]

Comcast
In August 2007 questions were raised as to whether Comcast engaged in protocol management practices - Comcast denied that it was blocking or throttling file sharing protocols.[3]

In February 2008 Comcast acknowledged that it did engage in traffic management practices but stated that these were reasonable and industry based standards that ensured quality services to their clients.[4] Comcast also altered its Terms of Service to correctly represent the company’s position with respect to traffic management.[5]

In March 2008 Comcast announced that it would alter its traffic management policy to phase out discrimination based on file sharing protocols.[6]

On the 1 August 2008 the FCC ordered that Comcast abandon its traffic management practices.[7] The FCC found that Comcast delayed file sharing traffic and ordered Comcast to submit a new traffic management proposal within 30 days.[8] Comcast was not fined.[9] Comcast commenced legal proceedings in the US Court of Appeals District of Columbia Circuit to dispute the finding, challenging the authority of the FCC to make and impose such a ruling but nonetheless agreed to comply with these requirements in the meantime.[10] Traffic that was effected by Comcasts practices included users of the Ares, BitTorrent, eDonkey, FastTrack and Gnutella networks.[11]

In late September 2008 Comcast announced that it was introducing an alternative traffic management policy.[12] Instead of throttling based on protocol the ISP will now reduce speeds to a good DSL level for high bandwidth users and prioritise low bandwidth users once their network reaches 80% of its capacity.[13]

In separate legal action the New York Attorney General subpoenaed Comcast’s records to investigate their traffic management practices.[14]

Others
There have also been allegations that AT&T engaged in protocol traffic management practices although this was denied by the company.[15]

Similar issues have also arisen in Canada, the UK and Germany.[16]

Technological Responses
In response to Comcast’s traffic management policy there were a number of suggestions as to how technical measures such as protocol header encryption could be employed to bypass the protocol discrimination however as Comcast changed its practices these were not developed or employed on a wide spread scale.[17]

Data Caps
Comcast and Time Warner have both introduced capped broadband accounts in the United States which ensure that high volume users pay more for their internet connections than low volume users.[18] It was announced in November 2008 that AT&T will also introduce these measures.[19]

It has been suggested that Australia does not have similar issues with respect to network neutrality because it already has in place capped broadband accounts which inturn allow ISPs to recoup more money and thus expand their networks as it is needed.[20]

Some ISPs continue to argue that traffic management practices based on protocol are still necessary with time sensitive traffic such as VoIP deserving preferential treatment.[21]

Pending Legislation
There is ongoing debate as to whether legislation is required to ensure network neutrality with many suggesting that competition within the market place should be sufficient to maintain ISP independence and that regulation can often create loop holes and have unintended consequences.[22]

In February 2008 Rep. Edward Markey D-Mass, chairman of the House Energy and Commerce Committee’s subcommittee on Telecommunications and the Internet introduced the Internet Freedom Preservation Act which was cosponsored by Rep. Chip Pickering, R-Miss requiring the FCC to assess whether consumers rights are being affected by the traffic management practices of ISPs.[23]

A Bill titled the Internet Freedom and Nondiscrimination Act of 2008, HR 5994, was introduced by Representatives John Conyers (D-MI) and Zoe Lofgren (D-CA) in mid 2008 which mirrored similar attempts in 2006 to alter the US anti-trust laws to ensure internet neutrality.[24] The Bill amends the Clayton Act of 1914 forbidding ISPs from charging differing rates to differing customers for the same product or service which would harm competition.[25] This Bill supports the notion that network neutrality is in essence a competition issue.[26]

Senator Byron Dorgan stated in November 2008 that further legislation would be introduced as early as January 2009.[27]

[1] CNet News, Net neutrality: An American problem? (28 September 2008) <http://news.cnet.com/8301-1035_3-10053045-94.html> at 5 October 2008
[2] Future of Music Coallition, FACT SHEET: Network Neutrality (January 2008) <http://www.futureofmusic.org/articles/NNfactsheet.cfm> at 18 February 2008
[3] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[4] ZeroPaid, Comcast to FCC: 'Yes, We Throttle BitTorrent Traffic, but So What?' (15 February 2008) <http://www.zeropaid.com/news/9267/Comcast+to+FCC%3A+%27Yes%2C+We+Throttle+BitTorrent+Traffic%2C+but+So+What%3F%27> at 17 February 2008; Digital Music News, In a Jam, Comcast Defends Traffic-Throttling (12 February 2008) <http://www.digitalmusicnews.com/stories/021208comcast/view> at 15 February 2008; The Register, Comcast cops to BitTorrent busting (13 February 2008) <http://www.theregister.co.uk/2008/02/13/comcast_fcc_network_management_filing/> at 15 February 2008; TechDirt, Comcast Defends Its Traffic Shaping Efforts (13 February 2008) <http://www.techdirt.com/articles/20080213/133855251.shtml> at 15 February 2008
[5] ArsTechnica, Comcast tweaks Terms of Service in wake of throttling uproar (7 February 2008) <http://arstechnica.com/news.ars/post/20080207-comcast-tweaks-terms-of-service-in-wake-of-throttling-uproar.html> at 8 February 2008
[6] EFF Deeplinks, Comcast Reduces Discrimination, Plans To End It Altogether (28 March 2008) <http://www.eff.org/deeplinks/2008/03/comcast-reducing-discrimination-planning-end-it-altoghether-isp-testing-remains-es> at 30 March 2008
[7] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[8] CNet News, FCC finalizes Comcast's filtering penalties (20 August 2008) <http://news.cnet.com/8301-13578_3-10021222-38.html> at 22 August 2008; Slyck, FCC to Comcast: You have 30 Days (20 August 2008) <http://www.slyck.com/story1749_FCC_to_Comcast_You_have_30_Days> at 22 August 2008; EFF Deeplinks, FCC Rules Against Comcast for BitTorrent Blocking (3 August 2008) <http://www.eff.org/deeplinks/2008/08/fcc-rules-against-comcast-bit-torrent-blocking> at 7 August 2008; ZeroPaid, FCC - Comcast Was Wrong to Throttle, but Prioritizing Packets is Fine (4 August 2008) <http://www.zeropaid.com/news/9675/FCC+-+Comcast+Was+Wrong+to+Throttle%2C+but+Prioritizing+Packets+is+Fine> at 6 August 2008; TechDirt, Comcast Has Quite A Week: Gets In Trouble For Blocking Content And For NOT Blocking Content (1 August 2008) <http://www.techdirt.com/articles/20080801/1236201863.shtml> at 6 August 2008; ArsTechnica, Hammer drops at last: FCC opposes Comcast P2P throttling (25 July 2008) <http://arstechnica.com/news.ars/post/20080725-hammer-drops-at-last-fcc-opposes-comcast-p2p-throttling.html> at 28 July 2008
[9] EFF Deeplink, FCC Chairman Hints at Order Against Comcast (11 July 2008) <http://www.eff.org/deeplinks/2008/07/fcc-chariman-hints-order-against-comcast> at 18 July 2008
[10] ZeroPaid, Comcast Appeals FCC Decision Ordering End to End BitTorrent Throttling (6 September 2008) <http://www.zeropaid.com/news/9737/Comcast+Appeals+FCC+Decision+Ordering+End+to+BitTorrent+Throttling> at 12 September 2008; TechDirt, Comcast Says FCC Has No Authority To Stop Traffic Shaping (20 March 2008) <http://www.techdirt.com/articles/20080319/195617592.shtml> at 22 March 2008
[11] Wired, Comcast Discloses Throttling Practices -- BitTorrent Targeted (19 September 2008) <http://blog.wired.com/27bstroke6/2008/09/comcast-disclos.html> at 21 September 2008
[12] EFF Deeplinks, Comcast Unveils Its New Traffic Management Architecture (22 September 2008) <http://www.eff.org/deeplinks/2008/09/comcast-unveils-its-new-traffic-management-archite> at 5 October 2008; TechDirt, Comcast Says No One Has Complained About Its New Traffic Slowing Efforts (22 September 2008) <http://www.techdirt.com/articles/20080922/0252232326.shtml> at 26 September 2008; ArsTechnica, Comcast loses P2P religion, goes agnostic on throttling (19 September 2008) <http://arstechnica.com/news.ars/post/20080919-comcast-loses-p2p-religion-goes-agnostic-on-throttling.html> at 21 September 2008
[13] EFF Deeplinks, Comcast Unveils Its New Traffic Management Architecture (22 September 2008) <http://www.eff.org/deeplinks/2008/09/comcast-unveils-its-new-traffic-management-archite> at 5 October 2008; TechDirt, Comcast to Throttle Heavy Internet Users Up to 20 min (23 August 2008) <http://www.zeropaid.com/news/9711/Comcast+to+Throttle+Heavy+Internet+Users+Up+to+20+Min> at 25 August 2008; Digital Music News, Selective Slowdowns: Comcast Keeps Pushing Throttling Plans (22 August 2008) <http://www.digitalmusicnews.com/stories/082108comcast> at 25 August 2008
[14] SiliconValley.com/Associated Press, N.Y. attorney general subpoenas Comcast on traffic throttling (26 February 2008) <http://www.siliconvalley.com/news/ci_8369162?nclick_check=1> at 29 February 2008; The Register, New York Subpoenas Comcast 'reasonable network management' records (27 February 2008) <http://www.theregister.co.uk/2008/02/27/andrew_cuomo_subpoenas_comcast/> at 28 February 2008
[15] ZeroPaid, AT&T to FCC: 'We Don't Throttle Bit Torrent' (27 April 2008) <http://www.zeropaid.com/news/9439/AT%26T+to+FCC%3A+%27We+Don%27t+Throttle+BitTorrent%27> at 29 April 2008
[16] ArsTechnica, P2P throttling leading to net neutrality showdown in Canada (24 April 2008) <http://arstechnica.com/news.ars/post/20080424-p2p-throttling-leading-to-net-neutrality-showdown-in-canada.html> at 2 May 2008; The Star, CRTC asked to stop Bell's 'throttling' (5 April 2008) <http://www.thestar.com/Business/article/410454> at 8 April 2008; ZeroPaid, How Bell and CBC Ignited Network Neutrality Debate in Canada (31 March 2008) <http://www.zeropaid.com/news/9369/How+Bell+and+CBC+Ignited+Network+Neutrality+Debate+in+Canada> at 2 April 2008; TechDirt, It's Good To Be A Monopoly: Bell Canada Tells ISPs To Shut Up And Accept Traffic Shaping (25 March 2008) <http://www.techdirt.com/articles/20080325/155924648.shtml> at 27 March 2008; The Register, Tiscali hits 'undo' after bandwidth throttling chokes iTunes (21 January 2008) <http://www.theregister.co.uk/2008/01/22/tiscali_bandwith_problems_ongoing/> at 30 January 2008; P2PBlog, German cable ISP admits Bittorrent blocking (10 March 2008) <http://www.p2p-blog.com/item-539.html> at 11 March 2008
[17] ZeroPaid, Comcast Work Around for Azures (20 March 2008) <http://www.zeropaid.com/news/9340/Comcast+Work+Around+for+Azureus> at 22 March 2008; The Register, BitTorrent busts Comcast BitTorrent busting (19 February 2008) <http://www.theregister.co.uk/2008/02/19/bittorrent_developers_hit_back_at_comcast/> at 19 February 2008
[18] ZeroPaid, AT&T Begins 20-150GB Data Cap Trials in Reno NV (5 November 2008) <http://www.zeropaid.com/news/9831/AT%26T+Begins+20-150GB+Data+Cap+Trials+in+Reno%2C+NV> at 6 November 2008
[19] ZeroPaid, AT&T Begins 20-150GB Data Cap Trials in Reno NV (5 November 2008) <http://www.zeropaid.com/news/9831/AT%26T+Begins+20-150GB+Data+Cap+Trials+in+Reno%2C+NV> at 6 November 2008
[20] CNet News, Net neutrality: An American problem? (28 September 2008) <http://news.cnet.com/8301-1035_3-10053045-94.html> at 5 October 2008
[21] ArsTechnica, Verizon: we need freedom to delay P2P traffic when necessary (21 August 2008) <http://arstechnica.com/news.ars/post/20080821-verizon-we-need-freedom-to-delay-p2p-traffic-when-necessary.html> at 22 August 2008
[22] ArsTechnica, Is government regulation needed to ensure net neutrality? (14 November 2008) <http://arstechnica.com/news.ars/post/20081114-is-government-regulation-needed-to-ensure-net-neutrality.html> at 16 November 2008; TechDirt, The Paper On Network Neutrality That Any Policy Maker Needs To Read (12 November 2008) <http://www.techdirt.com/articles/20081112/0121062806.shtml> at 16 November 2008;
[23] TechDirt, Markey's Non-Regulation Net Neutrality Regulation (13 February 2008) <http://www.techdirt.com/articles/20080213/122300247.shtml> at 15 February 2008; msnbc/Associated Press, 'Net neutrality' bill introduced (13 February 2008) <http://www.msnbc.msn.com/id/23147101/> at 18 February 2008
[24] ArsTechnica, New bill ties net neutrality to antitrust law (8 May 2008) <http://arstechnica.com/news.ars/post/20080508-new-bill-ties-net-neutrality-to-antitrust-law.html> at 10 May 2008; CNet News, Democrats revive another Net neutrality proposal (8 May 2008) <http://www.news.com/8301-10784_3-9939443-7.html> at 10 May 2008
[25] ArsTechnica, New bill ties net neutrality to antitrust law (8 May 2008) <http://arstechnica.com/news.ars/post/20080508-new-bill-ties-net-neutrality-to-antitrust-law.html> at 10 May 2008; CNet News, Democrats revive another Net neutrality proposal (8 May 2008) <http://www.news.com/8301-10784_3-9939443-7.html> at 10 May 2008
[26] TechDirt, We Need A Broadband Competition Act, Not A Net Neutrality Act (26 February 2008) <http://www.techdirt.com/articles/20080225/135642351.shtml> at 28 February 2008
[27] TechDirt, Net Neutrality Legislation Expected In January (14 November 2008) <http://www.techdirt.com/articles/20081113/1531282827.shtml> at 16 November 2008