The Case for Disclosure - Part 1

The repair technician from Time Warner Cable was precise in his diagnosis of the TV reception problem in my Manhattan home.  “Attenuation,” he declared slowly, explaining how the broadband signal weakened as it traveled over the cable throughout our large apartment building.  

The situation gets bad “especially in the evening, when everyone comes home and starts using the Internet,” he said.  Downloading Internet video is a major cause of the problem because video consumes so much bandwidth, slowing the network for internet and TV usage.

“Wow,” I thought.   Here’s the network neutrality debate in microcosm, right in my little corner of the world.   And it’s preventing me from watching the New York Yankees opening game.   I began to wonder who among my neighbors were the greedy, bandwidth-hungry violators.  The elderly lady in 14H?  That young couple on the floor above, with the toddler?  Maybe that teenager in 11H?  

A few days later, in a stubborn and clumsy effort to salvage some of my TV viewing experience, I tinkered behind my TV set with the tangled mess of cables, removing some and tightening the connections for others.   Lo and behold, that solved the problem.   No attenuation, no video drop off: crystal clear picture any time of day or night.  Bring on the Boston Red Sox.  Renew relationships with bandwidth-hungry neighbors.

The point of the story is that the technician from Time Warner did not know what he was talking about.  I don’t blame him.   His attenuation theory seemed a reasonable one (to me), as was his speculation regarding bandwidth hogging by my neighbors.   Not being a technician, I temporarily bought the argument.  And despite not being a technician, I stumbled into a solution.

That, it seems, is exactly where the nation is these days in the debate over two critically important and highly interconnected issues: network neutrality, and the network management practices of the large Internet Service Providers (ISPs).    There are problems, and we’re not sure what’s causing them.  We don’t have the facts, and we don’t know where to go to get them.   If there is a solution, we’ll be lucky to find it.

The result is a finger-pointing atmosphere that seems decidedly unproductive for ISPs anxious to satisfy investors, consumers hungry for predictable high-quality broadband service, and policy-makers who are being called upon to identify and fix the problem – whatever the problem may be.

In short, we need to know more.  Disclosure is critical.  The ISPs and related media and technology companies would be well advised to embrace the notion that their various stakeholders are entitled to more and better information about what’s happening on the electronic pipes which carry so much of our national discourse, whether that be Presidential debates, Grand Theft Auto or New York Yankee games.

Network neutrality holds that all content on the Internet be treated equally, regardless of its source. But underlying the neutrality debate are the “reasonable network management” practices of the ISPs, which handle the billions of bits that travel through their digital pipes on a daily basis.  The ISPs argue that if they don’t throttle back some of the traffic – video using P2P file transfer technology, for instance – the rest of us average users will find our systems as congested as the Interstate at rush hour.

The problem is that a discussion of network management gets incredibly technical incredibly quickly.  That’s compounded by the fact that the ISPs seem to believe they’re accountable pretty much only to themselves.   And while public controversy is in the relatively early stages, it’s growing, as is the reputational, regulatory/legislative and financial risk to companies.

Consider, for example, the experience of prominent Internet blogger Dave Winer whose broadband service was recently terminated by Comcast.   When he called to inquire:

I was quickly connected to a man who told me I had been deliberately disconnected because they had tried to call me and I didn't pick up. The number they called was my Blackberry, which I disconnected a couple of months ago because I never use it, I much prefer the iPhone. Then he threatened me. He told me I was in the top 1/10th of 1 percent of all their Internet users and that if I didn't immediately stop using so much bandwidth they would suspend my service for 12 months. I asked if I could get this in writing, he said no. I asked how much bandwidth would be acceptable, he wouldn't say. I told him this wasn't much of a threat if they weren't willing to put it in writing, and I wasn't intimidated. I also told him I was a blogger and would be writing it up. He didn't care.

Comcast has become something of a poster child for criticism of network management practices.  In fact, it’s now the subject of a Federal Communications Commission investigation regarding its handling of peer-to-peer file sharing traffic; last week in San Francisco the FCC held an open hearing on network management practices.  While all of the major ISPs were invited to testify, none did.  

Stanford University Law professor Lawrence Lessig, an advocate of regulation enforcing network neutrality, told the FCC commissioners: “The most outrageous thing about this story is that you can’t get the facts straight.”

The ISPs argue that their network policies must, of necessity, remain confidential, and they frequently invoke the innovative powers of the “free market” system as a reason for not embracing regulation supportive of network neutrality. 

But the free market system should not be employed as a cover for corporate incompetence.  A failure to disclose network management policies – and a downright refusal to engage multiple stakeholders in a process that helps shape those policies - has created an information vacuum, leaving customers and investors to question either the intentions or abilities of management.   And there’s more on the way: any senior executive of a media or telecom company who believes they’ve seen the last of the conflicts over open access to internet and information services is dreaming. 

The solution lies in transparency – getting the facts out.  The goal should be to establish new mechanisms providing vocabulary and metrics that empower robust discussion of the issues by multiple parties.  As the media world grows more complex, with an array of new digital devices and multiple distribution platforms, the discussion and debate over responsible policies – whether led by industry or imposed by government – must keep pace with that complexity.

Is there a way, short of regulation, of getting at the facts?   Stanford’s Lessig and many others would probably say no.   Open MIC is a bit more optimistic, though we don’t believe the process will be easy.

Part 2 - soon.