Net Neutrality is an often controversial topic, and one that many folks find they don't fully understand. Especially in the California tech arena, it's a topic that comes up a lot. Are you aware of net neutrality and how it could impact your business or organization? What issues should you be looking in to, and how can we, as tech users/builders help those in the legal world understand what we do and how their decisions would impact us?

1. Net Neutrality
Chris Witteman
NetSquared, San Francisco
October 16, 2012

2. Net Neutrality -
What Is it?
• 3 Rules
– non-discrimination
– non-blocking
–Transparency
in the old days, “common carriage”

3. The Internet
What Is It?
• It’s a lot of things
– physical layer – wires , conduits, routers
– code layer
– content layer
•Social, interactive, political discourse
• For policy purposes, I’m only interested in the
physical layer, because that’s the architecture that
shapes the Internet.

5. •
To borrow a phrase:
“It’s the wires, stupid”

7. Net Neutrality –
what’s the problem?
• From Verizon’s July 2, 2012 brief appealing the FCC’s
non-discrimination rules:
“The [FCC’s non-discrimination] Order
infringes broadband network owners’
constitutional rights [and] violates the First
Amendment by stripping them of control over
the transmission of speech on their networks.”

8. WHY IS THAT A PROBLEM?

9. 200 Million U.S. Internet Users
Not in the Picture

10. WHY IS THAT A PROBLEM?

11. What Control of the Wires Gives You
-- the protocol stack
• Content
• Application
• Physical
Transport
i.e, WIRES, CONDUITS, ROUTERS

12. According to Richard Whitt
when he was still counsel for MCI
• “An entity's control over … the
Physical Layer and its resulting
control over higher layers in the
protocol stack” leads to a situation
where “he who controls the lower
layers also can control the dependent
upper layers.”

13. What’s the Problem?
Take 2
Again from Verizon’s Brief:
“Broadband networks are the
modern day microphone by which
their owners engage in First
Amendment speech”

14. Translation
(Verizon as Editor, Speaker)
• All the Internet traffic Verizon
carries is nothing more than the
speech of Verizon, and Verizon
therefore should be granted the
editorial authority to prioritize, edit,
truncate, and dispose of that
speech as it sees fit.

15. 200 Million U.S. Internet Users
Not in the Picture

16. What Verizon, AT&T, and
Comcast Really Want:
– A “two-sided market”
– According to AT&T’s Ed Whitacre:
"Why should they be allowed to use
my pipes? … Anyone [who] expects
to use these pipes for free is nuts!”

17. How Ed Whitacre Can Carry Out His Threat – Network Control
Mechanisms - (from Manufacturer Whitepapers)
Cisco – “Cisco and Service Provider IP” –
Cisco says the reason to move to Cisco’s “next generation network” is:
● “Regaining control of networks and the services that run on them to increase
control of the business,” and thereby
● “offer new value-added services (far beyond connectivity) for top-line revenue
growth” – Cisco sums up by saying:
● “To use an analogy, carriers must move from a basic ‘highway’ service
structure to a ‘toll-way’ service structure to reap benefits of their broadband
investment”
Alcatel – “Exploiting IP Networks to Create Sticky Services” –
● “… benefits [of Alcatel systems] are lower churn and new sources of revenue”
[what Cingular said about ETFs]
Operax – “Efficient network resource control – a source of competitive advantage” –
● “to maximize revenues for value added services there must be clear perceived
difference in the performance between these services and lower quality
services running [on the rest of the Internet]. Bottlenecks are the foundation of
this differentiation … bottlenecks may be actual resource bottlenecks or
managed gates in the network”

18. How Did We Get Here?
● 2002 – George W Bush’s FCC decides that cable modem service,
i.e., the onramp to the Internet, is an information service and that
there’s no element of it that can be separately considered as
“transport,” i.e., telecommunications, i.e., common carrier.
● 2005 Supreme Court decision in Brand X –“defers” to FCC,
although even Justice Scalia can’t ignore FCC doublespeak – like
saying a pizza parlor doesn’t offer delivery because “even though
we bring the pizza to your house, we are not actually 'offering' you
delivery, because the delivery that we provide … is 'integral to i[the
pizza’s] other capabilities.'“
● Before the Ink is dry on Brand X decision, the FCC makes the same
ruling in 2005 DSL modem case.
○ So FCC eliminated common carriage non-discrimination, and
has been trying to come up with some vanilla alternative ever
since. Meanwhile, we live in this oddly balkanized world:

19. Why the Cable/DSL Modem
Decisions Make No Sense
•

20. What is at stake
The architecture of the Internet, as it
is right now, is perhaps the most
important model of free speech
since the founding. This model has
implications far beyond e-mail and
web pages. Two hundred years
after the framers ratified the
Constitution, the Net has taught us
what the First Amendment means.
(Lessig, Code, at 169)

21. The Problem, Restated
• Inherent Conflict of Interest - Can’t be both
CONDUIT and CONTENT provider (or
have anything to do with CONTENT)
• Like Railroads at the End of 20th Century

22. SOLUTIONS?
» NOT THAT THESE HAVE ANYTHING TO DO WITH
POLITICAL REALITIES …

23. The BT/Ofcom solution

24. Last and Middle Mile:
U.K.
(pretty much the same)

25. Google’s “Range of Tools”
• FCC’s neutrality rules
• Reclassification
• More Detailed Openness
Rules – re, e.g., QoS
• More Detailed Access
Rules – UNEs, Dom
Carrier Pricing…
• [Functional Separation]
• Structural Separation –
Computer II (separate
affiliates)
• Ban: No Conduit-
Content Cross
Ownership