Law in the Internet Society

The network neutrality double-speak

Lurking beneath the excitement of his Presidential campaign has been frustration at Barack Obama's vague position on issues, including foreign policy and economic recovery. But Obama has consistently supported at least one thing: the principle of network neutrality. Now that his presidency is a reality, it's a good time to take a look at this hotly-debated topic. This paper argues that network neutrality legislation is a bad idea, and will specifically focus on the recent Federal Communications Commission decision regarding Comcast and Bittorrent.

Why the fuss over network neutrality?

Obama has indicated that he supports network neutrality to preserve the benefits of open competition on the internet. He opposes what he calls the intention of telephone and cable companies to create high-speed lanes on the internet and strike exclusive deals with content providers for access to those lanes. In Obama's own words (and even better, in his celebrated voice): those of us who can't pony up the cash for these high-speed connections will be relegated to the slow lanes.

A sneak preview of Obama's idea for network neutrality can be found in the Internet Freedom Preservation Act that he supported in Congress in 2006. The proposed Act prohibited broadband service providers from blocking or degrading content, and prohibited additional charges for prioritization of service. Service providers were also required to provide the same level of access and service quality for both affiliated and non-affiliated content. While the Act was ultimately rejected by the Republican-dominated House Energy and Commerce Subcommittee, the same themes were seen in the FCC's recent finding that Comcast had breached neutrality principles and acted illegally by installing equipment that slowed users' access to BitTorrent.

Network neutrality and the troubling role of the FCC

This paper argues that network neutrality sounds good in theory, but translates badly into reality. Network neutrality legislation will not, as its supporters proclaim, save the internet. Supporters claim that such legislation is needed to stop cable companies from reserving the "fast" lanes for exclusive content. But there is no law stopping them from doing so now, so why haven't they done it yet? While it is heralded with much fanfare, network neutrality legislation looks like a solution in search of a problem.

Presently, the biggest actual danger that network neutrality supporters can point at is that service providers are blocking access to file sharing applications. The underlying fear is that cable companies such as Comcast and Time Warner will block access to file sharing applications because the online distribution of video files is a threat to their own cable television content. Essentially, the argument in favour of network neutrality is that service providers will drive customers to their own or affiliated products not through better services, but by rigging the marketplace. This argument assumes that customers are unable to vote with their feet and switch to another service provider. While options are admittedly limited, the American consumer does have a range of service providers to choose from.

Moreover, there is little evidence that the cable companies have found it commercially viable to discriminate in such a manner. In the Comcast vs. Bittorrent case, it is telling that the FCC never specifically found that Comcast was discriminating against Bittorrent in order to protect its own interests. In his press statement, FCC chairman Kevin Martin saved his strongest words for Comcast's failure to disclose its bandwidth management policies to its customers. His focus was on corporate disclosure, not content discrimination. Mr Martin in fact stated that he was opposed to network neutrality legislation because the FCC "already has the tools it needs to punish a bad actor"

Mr Martin was presumably referring to the FCC's policy statement, in which it claimed jurisdiction to ensure that service providers operate in a neutral manner. Riding on the principles of network neutrality, this effectively amounts to oversight over internet content by the FCC. Take the Comcast decision as an example. "Discrimination" against Bittorrent is illegal, but "prioritization" of voice-over-IP-calls is allowed. Blocking access to certain applications is legal if it is "reasonable", but it will be punished if it is "arbitrary". The verdict between "discrimination vs. prioritization" or "reasonable vs. arbitrary" is left to the subjective determination of the FCC. Thus, the power to shape online content simply passes from the service provider to the FCC.

The judicial cavalry isn't coming around the corner

Don't hold your breath waiting for the United States Supreme Court to rein in the FCC. The Supreme Court has meekly admitted in the Brand X decision that the FCC is in a "far better position" than the Court to address a "technical, complex and dynamic" question. The issue of network neutrality, with its roots in the murky world of packet inspection and flow classification, certainly qualifies as such a question. On that note, it is troubling that the FCC appears eager to proclaim its "expert judgment" to be "generally confirmed by experts in the field". You don't see the Supreme Court patting itself on the back when its opinion is in line with the general opinion of lawyers.

The network neutrality double-speak continues unabated. Cable companies are not common carriers for the purpose of infrastructure, but are nevertheless expected to act like postal common carriers for the purpose of content (read the opening paragraph of Mr Martin's press statement again). Service providers can and should block illegal content like child pornography, but the FCC refuses to say whether it is legal to use deep packet inspection technology to sift out such content. That being said, the FCC will unequivocally say that it is unacceptable to use deep packet inspection to sift out Bittorrent content.

Network neutrality ignores the fact that network administrators need the ability to discriminate between content. Comcast's defence was that it had restricted access in order to manage bandwidth usage. The FCC decided that Comcast was not simply managing its network, and had arbitrarily picked an application and blocked access to it. While Comcast's defence may not have been supported by the evidence, it remains true that network engineers need the tools to prioritize traffic and manage usage of their networks. Since it is impossible to formulate a policy that would prohibit all forms of harmful discrimination and allow all forms of beneficial discrimination, network neutrality legislation basically amounts to throwing the baby out with the bath water.

Bandwidth by everyone, for everyone

The irrepressible Mark Cuban has suggested that network neutrality will become a non-issue once there is sufficient bandwidth for everybody. The Maverick man may actually have a point. As the saying goes: if you build it they will come. Content follows capacity, and the demand for bandwidth is infinitely elastic. Today the American consumer is besotted with grainy Youtube videos. By contrast, the Japanese consumer is watching broadcast-quality full screen video. The development of such content was made possible in Japan not by vague network neutrality laws, but by the mandatory unbundling of the Japanese telecommunications infrastructure. If Obama is serious about promoting the development of online content, he should focus his efforts on his other goal of promoting diversity of media ownership. That's how to get out of the slow lane.


John M. Peha, "The Benefits and Risks of Mandating Network Neutrality, and the Quest for a Balanced Policy", posted at

-- JasonChan - 06 Dec 2008

I added headings to break up the paper's content.

-- JasonChan - 09 Dec 2008

I think one main concern regarding network neutrality is the false advertising used in the sales practices of broadband ISPs. If someone is paying for a 1.5 MB/s pipe they expect to be able to use that pipe whenever they desire. But because the cable company sells more such connections than its bandwidth supports, they then desire to restrict bandwidth usage on certain pipes.

-- JohnPowerHely - 10 Dec 2008

Thanks for the comment. I am reminded of Apple's response to its false advertising suit: I tried to see if the cable companies' advertising for internet service involved any "alleged deceptive statements ... that no reasonable person ... could reasonably have relied on".

What I found instead was Comcast expressly saying that it will restrict bandwidth usage for P2P? connections during periods of heavy congestion:

Moreover, the companies are careful to describe their internet speed as "up to" 1.5mbps or 10mbps:

As such, I don't really agree that there is false advertising in the sale of the product. The use of the phrase "up to" may be a weaselly cop-out, but it does seem to take the cable companies' advertising out of the realm of false advertising.

-- JasonChan - 10 Dec 2008

I will agree that it does not likely rise to the legal standards of false advertising (though I find the selling of a 1.5 meg and a 10 meg pipe to be rather duplicitous if the 'higher end' product is still likely to only pull 300-400 kilobaud during peak hours... grumble grumble) but I think it still defeats the value of their argument that they need to restrict bandwidth based on application usage. It reminds me of airliners overbooking flights. There the airlines response when the flight is too full is to ask for volunteers to take a later flight and grant them perks for their difficulties. If instead the airlines were to state that they were refusing or reducing access to the flight for frequent flyers, stating that they were somehow abusing their privilege to fly, there would be a riot at JFK. I know, I know, one is an unlimited use service and one is not, but anytime that you hear stories of data caps and the like it frustrates the hell out of me. If you state that usage is unlimited then that is what it should be. If you state that you can provide a certain width pipe then that is what should be provided.

-- JohnPowerHely - 11 Dec 2008



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r5 - 11 Dec 2008 - 03:05:53 - JohnPowerHely
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