The FCC was right to carve out these exceptions to its rules, in other words, but missed the big picture. The Internet was never neutral. Efforts to force it to be so as a legal principle enforced by a federal bureaucracy would do r more to threaten the survival of the open Internet than anything an individual ISP might do to manage network traffic.
That difference aside, are you more likely to watch the Comcast programming than that of an over-the-top video service just because the former doesnt count toward an excessive use threshold? Well, maybe so, but of course on-demand cable programming never counted against the threshold forInternetaccess. All Comcast is doing now is adding a new device through which you can select it.
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Apparently, self-proclaimed consumer advocates would prefer that use of the service count against Internet access thresholds, or perhaps that Comcast not offer the service at all, requiring customers to lease additional set-top boxes instead.
The only problem with the list of exceptions is that it iled to acknowledge the certainty of future network management tools equally beneficial to the overall performance of the public Internet. By naming only specific technologies, the FCC set itself up as the gatekeeper for new network management innovations and techniques invented after the rules were set in stone. Or, as the rising chorus of exaggerated objections to Comcasts Xbox service suggest, as the rcolocation hostingeferee of first resort for any new service, no matter how trivially it varies from long-standing practice.
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Service that allows consumers to use their Xbox for viewing Comcast programming has prompted cries of imminent disaster for the Internet. But the service doesnt violate FCCs Open Internet rules.
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Anticompetitive tricks? Hardly
Under law settled long before the Open Internet rules were first contemplated, business practices that demonstrably harm consumers were already illegal under antitrust. They can be stopped through private enforcement or by actions initiated through the Department of Justice or the Federal Trade Commission.
Regardless of the likely business impact of the new Xbox feature, its perfectly clear that Comcasts new service does not violate the FCCs Open Internet rules, passed at the end of 2010. (The FCC wisely avoids using the term Net neutrality, which has proven to mean whatever its supporters want it to mean at any particular moment.) The rules, for one thing, apply only to how an Internet service provider handles Internet traffic. Television programming and phone service, even when it travels over the same cable, is explicitly excluded.
In the black-and-white world of legal academics and apocalyptic advocacy groups, video is video. But in reality, the difference is much more than semantic. Cable providers are still subject to extensive FCC and local regulations that constrain their business in hundreds of different ways, large and small. Just to gain approval of its merger with NBC Universal, Comcast had to acceptdozens of detailed and often unrelated conditionson specific channels and content, as well as on-going FCC oversight.
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The only rule that could possibly apply to the new service says only that Internet providers shall not unreasonably discriminate in transmitting lawful network traffic over a consumers broadband Internet access service. Those objecting to the new service fear that by not charging users extra for on-demand programming through the Xbox, Comcast is indirectly disvoring over-the-top video services. Since the threshold doesnt apply to television programming, the argument goes, offering some of that programming through the Xbox, which also hosts the over-the-top services, discriminates against the other applications.
Complaints about the new service, at the same time, prove more than they intend to. They demonstrate both the danger and futility of turning regulation of the Internet over to the FCC, and of the agencys folly in passing the Open Internet rules in any form. Better to have left well enough alone, and trusted to the existing and adaptable law of antitrust to determine the difference between real and imagined harms.
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Well, lets take Wus advice and think about it for a second. In no sense is Comcasts on-demand content getting preferential treatment over Internet video service such as Netflix, Hulu, or YouTube (known as over-the-top services). Like all television programming, it is similar to Internet video services only in that it uses the same cable infrastructure the company maintains for customer Internet access and digital voice services.
Besides the all-you-can-eat feature of cable television, there are other ctors that influence consumers and their rapidly changing consumption habits for video. The Comcast on-demand service offers different content than the over-the-top services, many of which also now offer a combination of free and subscription-based services. The user intece, and other accessibility features, are also different. The ability to watch without commercials varies depending on the provider and the level of service selected.
As with any change to existing Internet services — even one that sounds like a good thing — the response in Washington was to sound the doomsday alarm. The reports that Comcast is offering a video product through the Xbox 360 without the data counting toward the customers data cap,Public Knowledge said last week, raises questions not only of the justification for the caps but, more importantly, of the survival of an Open Internet.
Comcast annoyed media activists last week by announcing it wouldnt count television programming retrieved through a customersXboxconsole against a monthly excessive use threshold for Internet access.
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According to Columbia Law Professor Tim Wu (who coined the term), the goal of Net neutrality is to try and guarantee that similar content gets treated similarly. Wu believes the new service violates that goal. If you think about it for a second,he said in an interview with Marketplace Tech Report, if something doesnt count against your cap, obviously its getting a preferential treatment. Youre more likely to stream that instead of someone elses.
Comcasts excessive use policy, on the other hand, may play little if any role in customers decisions about which services to use and when.According to the companys Web site, the current 250-gigabyte limit still allows Internet customers to stream between 100 and 800 hours of online video a month, depending on the quality. If you arent close to that, the threshold doesnt matter.
Unlike the FCCs rules, antitrust focuses on harm to consumers, not other competitors, from new products or services. Of course no such harm is anywhere to be found in Comcasts new Xbox service. Existing customers are simply being given the option to reduce their costs by substituting an Xbox console for a set-top box to receive on-demand content to which they already subscribe. Internet-based video services become no more or less attractive as a result.
In addition to television and voice traffic using the same infrastructure as Internet content, for example, the FCC also excluded from the rules content delivery networks, which replicate frequently accessed content on servers often co-located at ISP cilities, virtual private networks for businesses, which may use the same infrastructure the ISP uses for consumer broadband Internet access, peering arrangements, backbones, hosting and data storage services, and others.
Media reform group Free Press, which also objects to the new service, disagrees. It acknowledges that the new service doesnt violate the existing rules, but it argues that the exception for television and telephone traffic shouldnt have been part of the rules to begin with. Unfortunately, such anti-competitive tricks may be allowed by loopholes in the FCCs Open Internet rules,they said last week, proving once again that the FCC iled to deliver on the promise of real Net Neutrality.
The new service is not anticompetitive, nor is its exception from the rules some kind of legal trick to avoid real Net neutrality. Indeed, the FCCs final report identified over a dozen exceptions to the new rulcolocation hostingNo, Comcast is not breaking the Internet…againes, grandthering in a wide range of important and longstanding network management techniques.
Larry DownesLarry Downesis a consultant and author. His books includeUnleashing the Killer Appand, most recently,The Laws of Disruption: Harnessing the New Forces that Govern Life and Business in the Digital Age. Larry is a member of the CNET Blog Network and is not an employee of CBS Interactive.
In the course of its year-long Open Internet proceeding, rather, the FCC learned that the idea of a neutral Internet is largely a romantic construct of academics and advocates with little appreciation for actual engineering. To its credit, the agency correctly concluded that each of these tools is essential to the smooth operation of the Internet. The neutrality principle, it seems, is and remains more honored in the breach.
Rather than waiting to see how such changes actually affect the open Internet, advocates simply run to the FCC claiming real or, as here, imagined violations of the limited rules that were passed. As long as the regulations remain on the books, expect them to be the regular subject of similar efforts at revisionist history — both by the agency and those who wish a different set of rules had been written.
That wouldnt seem to be the kind of advocacy most consumers would appreciate. But offering the service for free, it seems, violates a purist interpretation of the open Internet, or what is sometimes referred to as the Net neutrality principle.
(The existing rules are already the subject of alegal challenge brought by Verizon and others, who argue that the agency lacks the authority to regulate broadband Internet access in the first place. The case is before the same court which, in an earlier case involving Comcasts handling of BitTorrent traffic in 2008, agreed. The court is likely to reach the same conclusion when the 2010 rules are reviewed, perhaps later this year.)
Using an Xbox instead of a set-top box for on-demand programming (some of which is included in the monthly fee and some of which is pay-per-view) doesnt change the ct that the programming in question is not Internet content to begin with. Its television content.
The Xbox Live dashboard featuring Comcast programming.
Taken together, the long list of exceptions should have made clear just how misguided the new rules were in the first place. Unable to give up the ghost, however, the FCC struck an inelegant compromise between the ideal of neutral packet delivery and the reality of a carefully engineered Internet that actually works.
Hows that again? The new service, first announced in October, simply allows existing customers of Comcasts Xfinity digital cable TV service to access on-demand programming through their Xbox instead of a set-top box. There will be no charge for the new service, which is available only to customers who are already paying for both Comcast cable TV and high-speed Internet access. The Xbox will either supplement existing set-top boxes or could be used to replace one or more of them.
If the Xbox service unreasonably discriminates against over-the-top services, then all cable TV unirly competes with Internet video. That, however, is not the view of the FCCs Open Internet rules, nor its extensive regulations of cable TV providers. Nor should it be.
But television programming is explicitly excluded from the definition of broadband Internet access service. And even if the discrimination rule did apply to television programming, theres nothing unreasonable about applying the threshold only to over-the-top video services and other Internet content. Comcasts programming content, whether accessed through a set-top box or the Xbox, uses the same cable infrastructure as its Internet access service. None of the programming, however, is subject to the excessive use threshold for Internet content, because, as the FCC acknowledges, it is not Internet content.
The same rules dont apply to over-the-top video services — one of the reasons these services have become so popular. (Hulu, it is worth remembering, is partly owned by Comcast through its NBC Universal subsidiary. Indeed,免beian主机. it is the largest single shareholder of this competing service.) Internet video gets the real preferential treatment, and its a much more meaningful advantage than the theoretical possibility of excessive use thresholds.
No violation of existing rules
You might watch on-demand, some of which is already included in your cable fee, or you might watch an Internet video service. You might use your set-top box or your Xbox, or any of a st-growing set of Internet TV applications that connect your broadband connection with game consoles, DVD players, or the TVs themselves. These days, youre likely to do some of each.
Which is not to say that over-the-top video services have no recourse if ISPs make truly life-threatening changes to their policies or engineering. Existing law already covers such behavior. In the event ISPs manipulate their infrastructure to vor their own Internet content over that of third-party services, for example, existing antitrust law stands ready as the established and appropriate arbiter of anticompetitive behavior.
ISPs, content developers, hardware and software providers have regularly introduced hardware and software that prioritizes some packets over others, giving them different treatment despite the supposed neutrality principle. These innovations keep the public Internet st and efficient — if not open in some purist sense.
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These exceptions are hardly loopholes. Quite the opposite. ISPs, content developers, hardware and software providers have regularly introduced hardware and software that prioritizes some packets over others, giving them different treatment despite the supposed neutrality principle. These innovations keep the public Internet st and efficient — if not open in some purist sense.
