The Case for Disclosure - Part 2

In October 2007, when the Associated Press first reported that cable TV giant Comcast had been interfering with the internet traffic of customers’ peer-to-peer file sharing applications, there were protests  from media reform groups in Washington, customer lawsuits and complaints to the Federal Communications Commission.

The Comcast disclosures also gave birth to the Network Neutrality Squad (www.nnsquad.org), an “open-membership, open-source effort, enlisting the Internet's users to help keep the Internet's operations fair and unhindered from unreasonable restrictions.”  

At the time, I dubbed the Network Neutrality Squad “a CSI for bandwidth detectives,” but aside from its playful name, it’s primarily a serious internet-based discussion forum.  Founded by long-time internet veteran Lauren Weinstein, along with net luminaries like Vint Cerf (sometimes called “the Father of the Internet”) and David Farber, the NN Squad has been encouraging a technically-oriented dialogue to determine some of the “facts” in the network neutrality debate.

It has not been easy.  Even among some of the best technical minds on the Internet, there’s often debate about whether a particular problem is a genuine case of an Internet Service Provider (ISP) delaying or blocking legitimate customer traffic.   In fact, moderator Weinstein recently issued an “open call” for ISPs to designate high-level executives whom researchers and other analysts could contact when investigating possible network neutrality concerns.   As Weinstein puts it:

It is particularly troubling that there generally is no routine mechanism available for early contact by neutrality researchers with appropriate *high level* ISP representatives during investigations of network issues that may relate to neutrality concerns.  Wide publication of possibly alarming test results followed by ISP denials in innocent cases is decidedly suboptimal for everyone.

While it's impossible to deny that there is considerable antagonism and distrust between some ISPs and elements of the Internet community, I strongly believe that there would be major positive benefit for all parties if better communications between these groups was available.

As tame as it might seem, the proposal has not been embraced by any major ISP.   But more and more members of the tech community are calling for more disclosure and discourse on these issues of network neutrality and management.  Respected engineering consultants Peter Sevcik and Rebecca Wetzel, of the firm NetForecast, wrote on NetworkWorld online:

The Comcast/BitTorrent kerfuffle erupted because Comcast quite understandably viewed the BitTorrent content distribution technology as pesky, and quietly applied a network pesticide to it. Because stakeholder interests were misaligned, the ISP link in the delivery chain broke, denying consumers access to requested content. Comcast failed to foresee that when it pushed too hard with an agenda misaligned with others in the chain, the system broke and everybody lost - including Comcast. Regardless of whose side we take and how high our emotions run, we should remember that we are all in this together, and the best course is to work things out responsibly.

To work things out we need a clearinghouse for technical information about how Internet traffic is generated, transported and consumed - so all stakeholders can foresee economic effects, and consumers can identify options that best meet their needs. A labyrinth of secret, bilateral deals is not the market elixir the Wall Street Journal suggests. Only transparency will enable markets to work and Internet content delivery chains to remain intact.

Indeed, even Comcast seems to be reacting, at least superficially.   Back in October, the company would not at first acknowledge any interference with customer P2P file transfer traffic.   Later it admitted that it “delayed” but did not “block” such traffic.  But following  public scrutiny brought about by the FCC complaint – and with increasing signs the commission might rule against the company – Comcast recently announced that it intends to develop a “Bill of Rights and Responsibilities” for file sharing.

"By having this framework in place, we will help P2P companies, ISPs and content owners find common ground to support consumers who want to use P2P applications to deliver legal content," said Tony Werner, Comcast's chief technology officer.

Who is shaping this Bill of Rights? Comcast, and Comcast alone.  And who’s missing from the dialogue?   People who actually use the internet.   Harold Feld, a senior vice president of the Media Access Project, a Washington, D.C. policy group, recently told FCC commissioners there were multiple problems with the Comcast go-it-alone approach.  Among them:

“Will there be a government advisory council for this private P2P organization? How about a non-commercial users’ constituency? A business constituency…? How do I make my comments known for this bill of rights? I know I would like to know, and I imagine that everyone with an interest in the evolution of the internet — meaning, of course, everyone — would like to know as well.”

In an era when customer satisfaction is the recurring mantra of virtually every business guru, the ISPs don’t seem to believe that their customers – as well as investors, regulators and legislators – will pay heed to reports that the companies are not living up to advertised promises of virtually unlimited bandwidth, never mind allegations that they are also messing about with American rights to freedom of expression and freedom of choice.

One possibility, of course, is that the regulators and legislators will do what they’re paid to do – regulate and legislate.  The U.S. Congress is unlikely to pass network neutrality legislation in the current session, but that could change in the event of new Democratic administration. 

U.S. Senators Olympia Snowe and Byron Dorgan, for example, are sponsoring a version of The Internet Freedom Preservation Act which would require the FCC to permit “any aggrieved person to file a complaint with the Commission concerning any violation” of network neutrality and require that the FCC provide a resolution of any complaint within 90 days of its being filed.

That seems an unwieldy solution (with the FCC investigating and responding to a large number of consumer complaints), but it raises a seemingly obvious question: why aren’t the ISPs doing something like that themselves?   Do they really want to leave consumer complaints to a government agency?  Where is senior management on these issues?  Do the companies not feel any accountability to a booming multi-billion dollar market?

Open MIC intends to explore and become more active in encouraging and developing new mechanisms for disclosure.  We believe facts are critical to the debate, hopefully helping to shaping the outcome in a manner that’s good for both the media business and society.