Late last week, the US regulator the Federal Communications Commission issued a landmark assertion of authority over how American operators should manage their networks – and announced a new policy framework. We won’t know what this policy framework will be for days or perhaps weeks – and the statements issued so far don’t help.

What we got on Friday was a self-contradictory press release which simultaneously both encourages and prohibits prioritizing internet traffic by application type.

Er, say what?

Well, it gets even stranger. Accompanying the commission’s release, all five commissioners issued their own individual personal statements – the FCC is split down the middle on the issue – with the two dissenting Commissioners, McDowell and Tate, complaining they weren’t given the text of the release until the last moment.

“Commissioner Tate and I received the current version of the order at 7pm last night, with about half of its content added or modified. As a result, even after my office reviewed this new draft into the wee hours of the morning, I can only render a partial analysis,” wrote Commissioner Robert McDowell.

Well-placed sources also suggested that having voted, they then realised it was immediately unworkable – so the statement was redrafted after the vote. Maybe that’s in keeping with an exercise in “Policy-based Evidence-making”: Take a vote and then try and figure out what you’ve voted on.

Before getting into specifics, let’s look at the problem – and the main problem with making laws out of net neutrality has been painfully obvious from the start. As a descriptive generalisation about what “the internet” looks like, or should look like, it’s impossible to disagree with. You won’t get any dissent about the evils of content discrimination from The Register, because unlike most of the neutrality activists, our livelihoods depend on networks delivering pages like this without favour. But a description is not the same thing as a working principle. Any law or regulation needs to be understood by the engineers working at the business end of keeping the networks running.

Take, for example, a statement such as “driving fast is bad”. This can be implemented and then enforced (as a speeding law). However an observation or generalisation such as “highways are better when people are nice” can lend itself to a metaphor, for example “Friendly Roads”, and made into a policy principle – “drivers should be considerate to each other”. But it’s one that is much harder to turn into a workable, prescriptive regulation.

The problem is that when it comes to implementation, “neutrality” only works as a metaphor. Not only has the internet never been “neutral”, it’s misleading to think of one internet, rather than many interconnecting networks. (The clue’s in the name).

The FCC has now taken upon itself on the task of turning a metaphor into law, and the difficulties are evident from the press release, and chief commissioner Martin’s statement.

Comcast had violated, a 3:2 majority of Commissioners concluded, “Internet users’ right to access the lawful Internet content and to use the applications of their choice”. How? The cable company “monitors its customers’ connections using deep packet inspection and then determines how it will route some connections based not on their destinations but on their contents”.

To support the decision, it quotes the expert advice of MIT’s David Reed, who says that deep packet inspection is not acceptable practice.

But then Martin declares, “we do not tell providers how to manage their networks,” although the whole point of the exercise is to do just that.

So if a network operator decides to favour one kind of application over another, is that OK? Yes, Martin, says. “They might choose, for instance, to prioritize voice-over-IP calls,” he writes in the very next sentence.

But when a VoIP call takes a higher priority, the priority of all other traffic is implicitly downgraded – which is exactly what Comcast has been smacked for. An ISP which stops an internet worm in its tracks is also discriminating, as is one which identifies material by content such as mass spam mailouts, and attempts to block them.

We’re right back to Friendly Roads, again.

The FCC’s judgement came in for immediate criticism.

The Commission concluded that “the end result of Comcast’s conduct was the blocking of Internet traffic, which had the effect of substantially impeding consumers’ ability to access the content and to use the applications of their choice. The Commission noted that the record contained substantial evidence that customers, among other things, were unable to share music, watch video, or download software due to Comcast’s misconduct.”

The commission gave 30 days for Comcast to stop the practice. Comcast actually stopped using the RST technique several months ago, and has since vowed to not discriminate by application.

The judgement is strongly contradicted by the evidence. Comcast’s traffic management was selectively applied to 24×7 Torrent uploaders (“seeders”), and enhanced the ability of Comcast customers to download torrents.

The commission said the technique did not constitute “reasonable network practice” and that economic harm resulted. Again, both of these are contentious – and copyright holders in particular will need a stiff drink as they digest the latter. While Bittorrent has substantial non-infringing uses, most of the traffic is unlicensed downloads of TVs, movies and music, a point not lost on one of the commissioners, Deborah Tate, who pointed out the neutrality principles only protect “lawful content”. So it’s not a Freetard’s Charter.

Probably the only area that isn’t contentious is the judgement that Comcast made deceptive statements to the press about its practices, and failed to inform its customers. Indeed, the failure to alert its PR staff on the deeper issues, and explain the specific practices (rather than deny them outright) may prove to be one of the costliest decisions in telecomms history. And it’s not as if Net Neutrality appeared out of the blue. For three years, activists have been combing the net for “violations” – imaginary, in some cases. (See Man discovers his net wasn’t neutered as an example).

A slow net for all?

Dissenting commissioner Tate drew attention to mediating role the FCC had performed in March, when Comcast and Bittorrent Inc announced a charter to co-operate.

“Rather than concentrating on 10% of the traffic by 5% of the heaviest bandwidth users, we should be ensuring that the 95% of ordinary subscribers are not negatively impacted as they use their internet for their child’s homework, shopping, getting news, sending emails and watching TV and YouTube,” she added.

But the most exhaustive disagreement was expressed by commissioner Robert McDowell in a 12-page statement, in which he unleashes an arsenal of criticism on the judgement.

McDowell begins with the matter of whether the FCC has any business here. Firstly, he says, the FCC has always exempted cable providers from traditional obligations aimed at the AT&T monopoly, specifically the requirement to open up its lines. Instead, cable is regarded as an unregulated “information service” and he doesn’t think the Supremes’ 2005 “Brand X” decision (where ISPs failed to win the right to share cable lines) alters its jurisdiction.

More importantly, he says, the FCC can create principles, but in the absence of Net Neutrality legislation, “we have no rules to enforce”, and is overstepping its bounds.

“If Congress had wanted us to regulate Internet network management, it would have said so explicitly in the statute, thus obviating any perceived need to introduce legislation as has occurred during this Congress. In other words, if the FCC already possessed the authority to do this, why have bills been introduced giving us the authority we ostensibly already had?”, McDowell asks.

But his most damning shots are aimed at the judgement itself.

“The evidence in the record is thin and conflicting. All we have to rely on are the apparently unsigned declarations of three individuals representing the complainant’s view, some press reports, and the conflicting declaration of a Comcast employee. The rest of the record consists purely of differing opinion and conjecture.”

Not only are his fellow commissioners unable to demonstrate harm, they can’t demonstrate what the harm really is.

“Although I have a tremendous amount of respect for each of my colleagues, none of us has an engineering degree… The Internet can function only if engineers are allowed to discriminate among different types of traffic. Now, the word ‘discriminate’ carries with it extremely negative connotations, but to network engineers it means ‘network management’. Discriminatory conduct, in the network management context, does not necessarily mean anticompetitive conduct … By depriving engineers of the freedom to manage these surges of information flow by having to treat all traffic equally as the result of today’s order, the Information Superhighway could quickly become the Information Parking Lot.”

Few expect the FCC’s decision to stand. But for a few months, or maybe longer, Americans may get a flavour of how well the internet works when technology utopians, political activists and regulatory quangos make the engineering decisions. It’s what they’ve wanted – so let’s judge them on how well they do.

“When we act, we create our own reality. And while you’re studying that reality, we’ll act again, creating other new realities.”

On the web today, “political activism” has become a virtual reality game that anyone can play, whoever you are. To succeed, a campaign need not be reality-based at all: it can generate its own fictional cause, complete with symbolic heroes and villains. Eventually the “campaigners” bump into physics, or economics, or real electors – who may have different, more urgent priorities – and the “campaign” vanishes as quickly as it appeared.

But what’s interesting is the real world consequences of the virtual campaign can be the complete opposite of the campaigner’s stated goals.

For example, have a look at this exchange with Ben Scott. Ben is a policy director at Free Press. The outfit describes itself as a “national, nonpartisan organisation working to reform the media”. A goal is a media more responsive to citizens, and more accurate too.

So we were intrigued when it sent out a press release last week titled “Comcast and Cox Caught Blocking BitTorrent All Day, All Night”. Had one of the internet’s most popular applications been KO’d for millions of users? Actually, no. BitTorrent was working just fine.

So we sent a brief note to Free Press, on the basis that if it wanted a more accurate media, perhaps it shouldn’t send out inaccurate press releases, hoping the media reprint the inaccuracies without question.

“Blocking implies that Bittorrent exchanges are somehow prohibited,” we wrote. “In fact, Comcast’s Bittorrent sessions have run faster and more smoothly as a consequence of this network management. So it’s inaccurate to describe it in such indiscriminate terms.”

But there was a more disturbing aspect to this careless use of the word “block”. Free Press had cited a study by students at the Max Planck Institute which showed network management techniques were being used by three ISPs: Comcast, Cox and Singapore’s.

Now, Singapore is not the United States. The government monitors and controls internet use, with the policy of criminalising certain kinds of behaviour. Homosexuality is illegal, for example.

So “blocking”, in Singapore, means that you can’t read certain things, and can’t write certain things either. In 2005, the government successfully prosecuted and jailed bloggers.

Doesn’t equating a repressive block on free speech with network management techniques trivialise the issue? And consequently make it harder for genuine victims of censorship to make their case? But Ben Scott couldn’t see the problem. He mailed us back:

“As you’ll note, we mention only Comcast and Cox and discuss the issue explicitly in the context of US government policy in the Congress and at the FCC. We do not even mention the Singapore case, so I don’t think we are equating the two countries. We do not have any knowledge about Singapore telecommunications practices and could not comment publicly on them.”

He also defended the use of the word “block”. Comcast blocks Bittorrent in the same way as a traffic light may block your road journey; you may actually arrive at the destination quicker. It doesn’t detonate an IED by your car, and force you to walk.

As we’ve explained before, when Bittorrent’s aggressive protocol is heavily used, other applications become unusable – so the cable operator tries to keep everyone happy.

Scott defended the inaccuracy:

“I would disagree with your characterization of RST packets. This is in fact blocking by definition. It think your analogy is inapt. It would be the equivalent of traffic stops sending me back home to start driving to work all over again.”

Only it doesn’t.

Scott produced a few names of “experts” to back up his case. But none of these seem to grasp the distinction, either – and none have experience of building real networks, ones that don’t fall over when the real people use them, doing the things people like to do. Like running Bittorrent, or making VoIP calls.

“I am not opposed to network management. I’m not opposed to throttling heavy users that are dominating congested links. I’m not opposed to congestion pricing. I’m not opposed to network tools that are used to protect security, etc. All networks use these tools. They use them today. They will use them tomorrow.”

What he objected to was less than clear. But it’s hard to draw up a policy when the definition of network abuse is so flexible. The press release of the day said that Comcast’s actions were inexcusable, but Ben had just excused those actions in an email.

Breaking the citizen’s network

But there’s another more profound and disturbing aspect to a citizen’s group declaring what can and can’t be done with technology.

This is how I pointed it out to Scott (apologies for quoting it at length):

The internet gives citizens control over the tools of communication in quite an unprecedented way. This, obviously, threatens institutions which depend on scarcity of information for their authority. I think this is a pretty unique moment in the history of communications.

But I think I’m beginning to see the problem, and it’s a classic information cascade. The “experts” tell you something you want to hear; you provide something the “experts” wouldn’t otherwise have. You get “evidence of abuse”. They get media prominence and social relevance. It’s a dependency cycle. But is it real, or fictional?

The question you must answer is – is the network you / I / we propose one that is sustainable ? One that citizens can use as a template for the future?

In other words, would a temporary injection of RTS packets ever be permissible, or not? We’d soon find out. Joe Public goes to make a VOIP call, and then discovers that Bittorrent has grabbed all the available bandwidth and sockets. And it’s completely out of his control. He can run one application or the other, but not both. We’ve outlawed intelligent and benign network management.

The precedent to remember is The Anarchist’s Cookbook. This was lauded as the ultimate recipe book for creating disruptive stuff – like bombs. But The Anarchist’s Cookbook was created at the CIA. It contained so many bogus instructions that it destroyed far more readers than intended targets. It was designed to fail.

Are you sure you’re not creating a network that’s designed to fail too? If the citizen’s network fails – who benefits?

So far, I haven’t heard a reply.

With its campaign to “Save The Internet”, Free Press may achieve two goals that I fear are the opposite of what its biggest backer, George Soros, intended when he financed the outfit.

One is that it makes the job of genuine free speech activists – who work to promote cases of real repression – much harder.

The other is that it mandates a broken network as the default technical standard for citizens.

You may recall the “Stuckist Net” arguments here several years ago, when readers discussed how feasible it would be to evade lockdown technologies and create computer platforms that remained free and open. That was in the aftermath of CPRM, when it looked like Vista would be a tightly controlled system. That nightmare never came to pass, but the internet retains the ability to be a genuine “citizens’ network”, with even the domain name system open to alternatives.

But for the public to adopt such a system, it must offer a genuinely compelling alternative to AT&T and Comcast. It’s no good advertising yourself as “citizen owned” if your offering falls over as soon as people use P2P. Similarly, selling a network with important features missing – such as VoIP – hardly makes it more attractive. You might get the odd politically-correct masochist, but Joe Public will stay away.

So in banging the drum for the virtual campaign, Free Press makes the big guys even stronger. That’s an odd result for an outfit that says its goal is “to promote diverse and independent media ownership”.

And a hell of a legacy to leave behind.

So why are Google lobbyists advocating for the next wave of collapsing wireless initiatives – rather than helping things?

As we reported on Wednesday, the FCC threw out a bid to have a prime chunk of 2100Mhz spectrum handed to it exclusively, free, on a plate, for 15 years. The FCC argued that it didn’t have the power to grant “innovative” bids special favours, and in any case, the bid by M2Z and NetFree US wasn’t innovative. (When you’re a bureaucrat, you can do things like that – it’s a perk of the job.)

But as Commenters at El Reg wondered, what on earth is the FCC even doing considering bids such as this? 2100Mhz, they pointed out, is the global portion of spectrum in Europe and Asia used by UMTS: the W-CDMA flavour of 3G. This is what allows you to turn off your Vodafone phone at Heathrow – turn it back on after you touchdown at Tokyo International, and continue your suspended IP session. It’s very handy.

The answer is that the FCC hasn’t decided what it should do with 2100Mhz yet, which is a remarkable testament to its intellectual confusion. But the answer should be fairly simple: auction it off to the highest cellular network bidder.

Thanks to spectacular regulatory mismanagement (in the 1980s, the FCC even had the bright idea of auctioning off spectrum to every Mom and Pop shop which could fill out the form) the US consumer pays too much for their basic handsets, and indirectly, too much for the service. Sprint/Nextel is plumping for 4G WiMAX in 700Mhz, Verizon is sticking with CDMA, and while AT&T and T-Mobile both have the same air interface in GSM/W-CDMA, they use different portions of the spectrum. That’s four flavours of network equipment. This deprives the US of global economies of scale: instead of a fighting for a share of a 3bn market, manufacturers fight for a much smaller market of 200m.

It’s why, as Reg readers pointed out, the handsets are lousy – and expensive, too.

Enron with a G?

But over at Google, the K-Street lobbyists seem to be in charge. The Silicon Valley giant needs to employ more economists perhaps, and economists who aren’t religiously inclined: for its intervention on behalf of M2Z was typically short-sighted and self-interested.

Google sees itself as the Enron of spectrum. Google also sees itself as the Enron of healthcare. In one case it’s bringing trading to where there is no trading, in the other, it’s making the trading that’s already there more efficient. And All Shall Kneel before the Church of the Algorithm!

Now there are times when liberalisation is welcome, and times – as with Enron – when it’s not. This is a case where keeping the lobbyists locked in their kennels really was the Only Right Thing To Do. Alas, Googleron is attacking spectrum with the ideological fervor of the DC boys helping the post-Soviet economy: and it’s going to have just as messy consequences.

Fortunately, things are a lot brighter in wireless than in fixed line – if the FCC remember one thing: data doesn’t pay. (The collapse of the Muni Wi-Fi iniatives is simply the latest example). But when data is subsidized by, and bundled with something people will pay for, then the technology allows us to have really quite excellent data services as a bonus.

Earlier this month the UK operator 3, part of the global Hutchison operation, rolled out its £10 a month Turbo 3G plan for laptops (details here). This network blankets 85 per cent of the UK in “super 3G” speed data, at a price that pretty much anyone can afford. (A month’s high speed data costs you two hours in Starbucks, is another way of thinking about it)

This is why the FCC should get AT&T and T-Mobile in a room, and empty their pockets. Not too much, so they’re obliged to refinance huge debts and stagnate, rather than investing, as greedy European governments discovered. But enough to get a return for the public, on top of a real result.

Regulation is smoke-filled room politics – it’s not science. So the FCC should start twisting some arms.

And for Google? It takes a huge mental leap today to imagine the Silicon Valley company lobbying for the telcos to be awarded this spectrum. But I don’t see why not. It’s the only way 300m Americans are going to be using mobile data anytime soon – and that’s 300m Adsense opportunities.

If Google really cares about mobile, it should be batting for the US to join the global standard – not be creating the next wave of Wi-Fi flops, due around 2011.

Google, however, find itself trapped in a peculiarly US mythology. Forward-looking Americans always find it more attractive to strike out at a new frontier, than fix hard-to-solve problems at home – and there’s few things harder than getting regulation right. So Google is the poster-child for the new frontier of “spectrum”: a role it should wriggle out of as soon as it can.

That means firing some lobbyists, however – and admitting the sometimes the Algorithm is not God.

Some chance.

On behalf of Microsoft, Google, and Intel, the technology evangelists argued that smart radios were here, but the evil regulator the FCC wouldn’t permit them to deploy the technologies. Broadcasters countered that these experimental new technologies caused interference with their signals. [See Abolish Free TV – Intel).

In the hallways afterwards, one delegate and deregulation evangelist couldn’t understand why the FCC couldn’t just confiscate the spectrum from the TV broadcasters and be done with it?

“Why do the broadcasters need any spectrum at all?” she asked.

Because free TV is one of the few pleasures some Americans can afford, perhaps. A slightly less arrogant and more technically adept argument was advanced instead, which claimed that the space between allocated TV channels was “beachfront property”. Instead, the regulator copped it – it was all the fault of the FCC’s “command and control” outlook.

(The deregulation fanatics want a spectrum free-for-all and dream of the FCC being scrapped. The FCC is permitting fixed WSDs (white space devices) from 2009, but the industry wants mobile handheld WSDs to be permitted too.)

Now, agile radio has been tested and found to be not quite so agile as its proponents touted. At the end of July, the FCC’s engineering office published two sets of results from a four month trial of agile radio equipment submitted by the “White Space Coalition”, which includes Microsoft, Google, Intel, Dell, and HP.

“Depending on the effectiveness of shielding of a TV receiver’s tuner, emissions within a broadcast white space (i.e., within an unused broadcast channel) could potentially cause co-channel interference to a TV receiver tuned to a digital cable channel that overlaps the spectrum of the white-space device emission,” the FCC noted.

The lab found that the spectrum sensing of the equipment it tested couldn’t detect the white space with sufficient accuracy.

For one prototype sensor, the FCC noted:

“the results of the bench test for determining the baseline minimum detection sensitivity demonstrates that the device will not meet the manufacturer-specified threshold of -114 dBm (or the IEEE 802.22 proposed threshold of -116 dBm for fixed devices) and in fact, fails to meet both of the thresholds by about 20 dB. The results of the field tests also demonstrate inconsistent performance”

The manufacturer may have misread the spec, it suggests. The sensor also failed to detect the presence of a wireless microphone at all.

A second prototype sensor performed to the 114 dBM but got confused when a second DTV channel was turned on – the manufacturer asked it be excluded from more real-world tests. This prototype also failed to pick up a wireless mic, except on the two lowest channels. Both were also severely hampered by the microphones themselves.

Tests of a prototype transmitter also demonstrated interference, and generated some skepticism from engineers whether the filtering required to avoid knocking out TV signals can be implemented in a real product.

So smart radios have a long way to go, and this white space looks less like a “beachfront property” and more like a Cambodian minefield.

Microsoft told the Washington Post today that it had given the FCC a successful demonstration last week – and insisted it will all work out in the end.

As soon as it’s got the pesky physics sorted out.

US telecoms regulator the FCC has signaled the end of the independent ISP, a move which will leave DSL provision concentrated in the hands of just a few large providers. The move, which turns local DSL provision from a regulated monopoly into an unregulated monopoly, also has repercussions for rural telephony providers, who will lose a chunk of subsidy, and has potentially chilling consequences for free speech.

Unless state regulators step into the void just vacated by the Federal regulator, however, every independent DSL provider will find itself at the mercy of the Baby Bells when its contract expires – and the Baby Bells have no compulsion to renew those competitors’ contracts.

At the moment in the US, DSL is sold wholesale by companies owned by the Baby Bells, aka the “ILECs” (incumbent local exchange carriers), such as SBC (formerly Southwestern Bell and Pacific Bell), and Verizon (formerly Bell Atlantic). The ILECs are also DSL retailers, of course, in direct competition with independent ISPs who depend on the ILECs for service and in most cases, infrastructure.

In a statement today the FCC said it was scrapping the mandatory sharing requirement on incumbents that “caused vendors to delay development and deployment of innovations to consumers.” In June the Supreme Court ruled that cable broadband is an “information service”, rather than a “telecommunication service”. The latter is subject to the watchdog’s oversight and public service obligations, while the former is not. Now the FCC is stepping away from regulating DSL with the justification that it needs to “level the playing field”, reasoning that two mistakes cancel each other out.

In a statement, the president of the California ISP Association CISPA Dane Jasper described it as “a re-monopolization of a network that has been publicly regulated and paid for by rate payers for more than 100 years.”

“This is not leveling the DSL playing field. The FCC is putting a fence around the playing field and giving the keys to a few phone companies with armies of paid lobbyists, letting the phone companies decide who can play in the broadband game.”

So what happens next?

Much depends on what the ILECs – the wholesalers today – decide to do when the ISP contracts expire. No ISP large or small is safe, but it’s hard to see the ILECs pulling the rug away from the larger DSL ISPs such as AOL or Earthlink without a fight. The largest ISPs have the legal and financial clout to make termination of their contracts at the very least awkward experience for the Baby Bells.

The alternative for ISPs is to negotiate a deal with a CLEC, a competitive local exchange carrier, but in practice that means Covad. (Of the three national CLECs once offering national wholesale DSL, Covad survived Chapter 11, but Northpoint and Rhythms didn’t – they went bankrupt and dissolved.) But Covad service isn’t cheap and is beyond the reach of the smaller indies.

So ILECs are likely to target the local ISPs for termination, taking out a competitor and cutting their own costs as a bonus.

In theory the FCC’s ruling shouldn’t matter on a regional basis, because the states regulate their own phone services. But in practice intensive lobbying has neutered the state regulators.

For example, the California Public Utilities Commission decreed that SBC should not retail DSL below the price of its wholesale offerings. However, SBC won itself an exemption for special promotional offers, and permanently offers retail below wholesale prices by running non-stop, back-to-back “promotions”.

Without economies of scale, and the financial muscle that buys lobbyists and lawyers, the outlook for small DSL ISPs looks grim.