Did the FCC order get lots worse in last two weeks?

So, here we are. Today the FCC voted 3-2 to issue new rules governing the Internet. I expect the order to be struck down by the courts and/or Congress. Meantime, a few observations:

  • The order appears to be more intrusive on the topic of “paid prioritization” than was Chairman Genachowski’s outline earlier this month. (Keep in mind, we haven’t seen the text. The FCC Commissioners themselves only got access to the text at 11:42 p.m. last night.)
  • If this is true, if the “nondiscrimination” ban goes further than a simple reasonableness test, which itself would be subject to tumultuous legal wrangling, then the Net Neutrality order could cause more problems than I wrote about in this December 7 column.
  • A prohibition or restriction on “paid prioritization” is a silly rule that belies a deep misunderstanding of how our networks operate today and how they will need to operate tomorrow. Here’s how I described it in recent FCC comments:

In September 2010, a new network company that had operated in stealth mode digging ditches and boring tunnels for the previous 24 months, emerged on the scene. As Forbes magazine described it, this tiny new company, Spread Networks

“spent the last two years secretly digging a gopher hole from Chicago to New York, usurping the erstwhile fastest paths. Spread’s one-inch cable is the latest weapon in the technology arms race among Wall Street houses that use algorithms to make lightning-fast trades. Every day these outfits control bigger stakes of the markets – up to 70% now. “Anybody pinging both markets  has to be on this line, or they’re dead,” says Jon A. Najarian, cofounder of OptionMonster, which tracks high-frequency trading.

“Spread’s advantage lies in its route, which makes nearly a straight line from a data center  in Chicago’s South Loop to a building across the street from Nasdaq’s servers in Carteret, N.J. Older routes largely follow railroad rights-of-way through Indiana, Ohio and Pennsylvania. At 825 miles and 13.3 milliseconds, Spread’s circuit shaves 100 miles and 3 milliseconds off of the previous route of lowest latency, engineer-talk for length of delay.”

Why spend an estimated $300 million on an apparently duplicative route when numerous seemingly similar networks already exist? Because, Spread says, three milliseconds matters.

Spread offers guaranteed latency on its dark fiber product of no more than 13.33 milliseconds. Its managed wave product is guaranteed at no more than 15.75 milliseconds. It says competitors’ routes between Chicago and New York range from 16 to 20 milliseconds. We don’t know if Spread will succeed financially. But Spread is yet another demonstration that latency is of enormous and increasing importance. From entertainment to finance to medicine, the old saw is truer than ever: time is money. It can even mean life or death.

A policy implication arises. The Spread service is, of course, a form a “paid prioritization.” Companies are paying “eight to 10 times the going rate” to get their bits where they want them, when they want them.5 It is not only a demonstration of the heroic technical feats required to increase the power and diversity of our networks. It is also a prime example that numerous network users want to and will pay money to achieve better service.

One way to achieve better service is to deploy more capacity on certain links. But capacity is not always the problem. As Spread shows, another way to achieve better service is to build an entirely new 750-mile fiber route through mountains to minimize laser light delay. Or we might deploy a network of server caches that store non-realtime data closer to the end points of networks, as many Content Delivery Networks (CDNs) have done. But when we can’t build a new fiber route or store data – say, when we need to get real-time packets from point to point over the existing network – yet another option might be to route packets more efficiently with sophisticated QoS technologies. Each of these solutions fits a particular situation. They take advantage of, or submit to, the technological and economic trade-offs of the moment or the era. They are all legitimate options. Policy simply must allow for the diversity and flexibility of technical and economic options – including paid prioritization – needed to manage networks and deliver value to end-users.

Depending on how far the FCC is willing to take these misguided restrictions, it could actually lead to the very outcomes most reviled by “open Internet” fanatics — that is, more industry concentration, more “walled gardens,” more closed networks. Here’s how I described the possible effect of restrictions on the important voluntary network management tools and business partnerships needed to deliver robust multimedia services:

There has also been discussion of an exemption for “specialized services.” Like wireless, it is important that such specialized services avoid the possible innovation-sapping effects of a Net Neutrality regulatory regime. But the Commission should consider several unintended consequences of moving down the path of explicitly defining, and then exempting, particular “specialized” services while choosing to regulate the so-called “basic,” “best-effort,” or “entry level” “open Internet.”

Regulating the “basic” Internet but not “specialized” services will surely push most of the network and application innovation and investment into the unregulated sphere. A “specialized” exemption, although far preferable to a Net Neutrality world without such an exemption, would tend to incentivize both CAS providers and ISPs service providers to target the “specialized” category and thus shrink the scope of the “open Internet.”

In fact, although specialized services should and will exist, they often will interact with or be based on the “basic” Internet. Finding demarcation lines will be difficult if not impossible. In a world of vast overlap, convergence, integration, and modularity, attempting to decide what is and is not “the Internet” is probably futile and counterproductive. The very genius of the Internet is its ability to connect to, absorb, accommodate, and spawn new networks, applications and services. In a great compliment to its virtues, the definition of the Internet is constantly changing. Moreover, a regime of rigid quarantine would not be good for consumers. If a CAS provider or ISP has to build a new physical or logical network, segregate services and software, or develop new products and marketing for a specifically defined “specialized” service, there would be a very large disincentive to develop and offer simple innovations and new services to customers over the regulated “basic” Internet. Perhaps a consumer does not want to spend the extra money to jump to the next tier of specialized service. Perhaps she only wants the service for a specific event or a brief period of time. Perhaps the CAS provider or ISP can far more economically offer a compelling service over the “basic” Internet with just a small technical tweak, where a leap to a full-blown specialized service would require more time and money, and push the service beyond the reach of the consumer. The transactions costs of imposing a “specialized” quarantine would reduce technical and economic flexibility on both CAS providers and ISPs and, most crucially, on consumers.

Or, as we wrote in our previous Reply Comments about a related circumstance, “A prohibition of the voluntary partnerships that are likely to add so much value to all sides of the market – service provider, content creator, and consumer – would incentivize the service provider to close greater portions of its networks to outside content, acquire more content for internal distribution, create more closely held ‘managed services’ that meet the standards of the government’s ‘exclusions,’ and build a new generation of larger, more exclusive ‘walled gardens’ than would otherwise be the case. The result would be to frustrate the objective of the proceeding. The result would be a less open Internet.”

It is thus possible that a policy seeking to maintain some pure notion of a basic “open Internet” could severely devalue the open Internet the Commission is seeking to preserve.

All this said, the FCC’s legal standing is so tenuous and this order so rooted in reasoning already rejected by the courts, I believe today’s Net Neutrality rule will be overturned. Thus despite the numerous substantive and procedural errors committed on this “darkest day of the year,” I still expect the Internet to “survive and thrive.”

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