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March 27, 2005
Hey Om. Aswath, (and Andy): Net Freedom and Consumer Empowerment -- Let’s Start To Make Some Noise!
In the past few days, Om Malk, Aswath Rao and Andy Abramson (while sipping on wine on holiday in France) have all started to address some of the issues touching what are known as our "Net Freedoms."
The time is NOW for a Call to Arms to fight more vigorously for consumer empowerment and net freedom both in the US and all parts of the Broadband empowered world.
I do have growing concerns about the increasing instances of port blocking by those that control the access that consumers have to the Internet. Om Malik correctly noted in a blog yesterday that these instances have, thus far, only been perpetrated by smaller independents and start-ups. The most public occurrence was, of course, the Madison River blocking of Vonage. A couple of days ago, we noted an allegation that ClearWire was also blocking Vonage. I have heard about several instances overseas. I have not, to date, heard about the larger cable or Bell companies block or choking consumer access to the Internet.
The ClearWire incident alone should give us all some pause. Unlike Madison River, which is subject to Title II of the Telecom Act, ClearWire might not be subjected to similar Title II common carrier oversight (particularly if the Supreme Court reverses the 9th Circuit in the Brand X cable modem case and similar logic applies to other non-telecom carriers). Without Title II oversight, it becomes much less clear what the legal basis for Net Freedom exists that would keep Madison River, ClearWire, and others from blocking ports or otherwise choking consumer access to the Internet. I have serious concerns that there is currently no legal hook to compel non-Title II telecom carriers to abide by something akin to the general Section 201 authority that was used to entice Madison River to settle its port blocking case.
Frankly, I believe the Bells and cablecos are quite likely furious with the smaller controllers of last-mile access for flagging the ease by which it is possible to choke consumer access to ASPs that might offer competing voice and other communications services. The other day I heard a Bell rep use the “F” word ("Freerider") to describe what VoIP ASPs do. Several months ago, SBC’s Ed Whitacre used the word in the Wall Street Journal to describe Vonage and Skype. If I were Whitacre’s counsel, I would have suggested that he his mouth quiet for about a year, until SBC had successfully used the VoIP ASPs to achieve their end-game -- no regulation -- and then come after the ASPs as freeriders. This, frankly, is how the UNE-P and CLEC wholesale access issues essentially played out. By historic analogy, the existence of local competition by CLECs reselling Bell services through UNE-P (“unbundling” of the entire Bell service platform – essentially allowing CLECs to offer the same tired POTS services that the Bells offer at a 5% discount) was used to get the Bells long distance authority. UNE-P demonstrated “robust”, “irreversible” competition. Once the Bells got 271, however, they went after UNE-P providers as “freeriders.” The Bells got long distance authority and then killed the competition that got them there. I have grave concerns that the Bells will start using the "F" word more and more against unaffiliated VoIP application providers, much the way they called the UNE-P providers "Freeriders".
We have heard the early rumblings, even while the Bells still need us as the vehicle to get out from other more onerous unbundling and other common carrier obligations.
Frankly, I have never received an acceptable answer from any regulator about how to compel cable, Bells and others to commit to consumer net freedom, short of imposition of Title II common carrier obligations on all controllers of last-mile access. My key point is that the LECs and cablecos must not be allowed to use the unaffiliated VoIP ASPs as the hook to get out from unbundling and other common carrier and access obligations, and then kill off the ASPs once they've used the ASPs to obtain their objective. If the ASPs die, the LECs and cablecos must get re-regulated.
Another piece that irks me: The IP-based ASPs, unlike the UNE-P providers should not be considered “Freeriders”. Unlike UNE-P, ASPs genuinely increase the capabilities and value of the underlying networks. ASPs are not simply reselling the same old tired POTS service. The LECs and cablecos should, instead, recognize the symbiotic nature of the network/ASP relationship and help create a virtuous cycle where the application and edge players encourage broadband uptake and broadband deployment encourages adoption of new Internet applications and services.
I think the issue is how we guarantee net freedom beyond vague application of Section 201 of the Telecom Act. Even that application to Madison River is somewhat suspect. What if Madison River didn't have a speculated pending IPO? Would Madison River have fought or refused to accept the Consent Decree? And what happens to last-mile carriers not subject to Title II (e.g., wireless access providers; cablecos if Brand X is reversed and cable modem service is not a telecom service and therefore not subject to Section 201)? This is why a layered regulatory model to be applied across all delivery media makes sense to me.
The inability of a similar, relatively clear hook in other Titles of the Communications Act will make parity across platforms a little legally tenuous.
I fear that we are seeing rumblings of likely anti-competitive practices from the larger players and we should be immediately and eternally vigilant to ensure that we do not wake up some day next year to find that we have no viable means to stop port blocking and other activity designed to preclude IP-based ASPs from reaching consumers.
Over the past couple of years, I fear we have suffered from a variant of Stockholm Syndrome -- taking whatever nits and scraps the LECs are willing to throw our way as they dismantle the common carrier regime. If the existence of application layer competition is the Bells ticket out of from regulation, they have to keep us around and tout our possibilities until it is too late for common carrier oversight.
Now is time for us to shine a spotlight on these issues before it is too late – before there is no longer a place for unaffiliated IP-based ASPs. First they came for the CLECs, but I wasn't a CLEC so I didn't care; then they came for the ISPs, but I wasn't an ISP, so I didn't care; then they came for the unaffiliated IP-based ASPs, and there was no one left to care.
I hope there are members of the Blogsphere who we can count on in joining the fight and protect Net Freedom and Consumer Empowerment before it is too late.
Posted by jeff on March 27, 2005 11:29 AM | Permalink
Additional resources: #140conf events | Watch the Jeff Pulver Show | Jeff's Qik Videos
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I believe that the shift in our communications system to one that fundamentally empowerers its users is the key to the next economy.
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Claiming that ClearWire can't handle the bandwidth for VoIP doesn't hold much water; Clearwire has since gone on to start their own VoIP service. As for blocking packets, my opinion is that if a provider wants to block any packets, it's their right to do so, under one condition: That they don't offer said service themselves. At that point, it becomes an issue of trade restraint by blocking competitors. In other words, an ISP can block VoIP, but they better not be offering VoIP themselves. Just my opinion...
Posted by: Anakin-Marc Zaeger at October 21, 2007 10:14 PM
Just to follow up - it seems that there may be more to this than a desire to block competitors. ClearWire's technology may just not be capable of supporting high packet-per-second rates.
See the in-depth discussion on the Nanog mailing list (http://www.nanog.org/)
Posted by: Irwin Lazar at March 28, 2005 10:05 AM
Jeff, I believe the language has to become a lot clearer if the "person on the street (or net)" is going to respond or actively participate.
I believe that the shift in our communications system to one that fundamentally empowerers its users is the key to the next economy. Current communication costs for consumers are reaching a point where it is no longer efficient for organizations to be structured around "centralised" information assets. Instead they should be organized to "sense and respond". It is not only voice that is part of this transition. While we focus currently on voice the "data" that this new world will enable remains on the horizon. In that is the real prize for the person online.
The debate also needs to be a global one. There is no point in just talking America. If it's messed up here... then we will in short order be at a competitive disadvantage as a nation, and effectively "taxed" as a result.
Freedom looks a lot like an electrical plug.
Posted by: Stuart Henshall at March 27, 2005 09:54 PM
It's time to stop calling V(oice)oIP and
V(ideo)oIP users freeloaders and parasites. More
accurately they are symbionts. Without them, many people would not be buying broadband access at or, or they would be buying cheaper slower, less profitable access.
Here in Israel there are two alternatives, aDSL from the phone company (BEZEQ) and cable (HOT). They connect to various ISPs. If any of them were to block VoIP or "file sharing" they would go out of buisness.
I should note that the cable company offers it's own VoIP local service and one ISP (Netvision) remarkets Vonage.
Once company offers a $100 box that connects to your PC, POTS line and POTS phone. It mixes both incoming and outgoing calls via POTS and Skype.
Posted by: geoffrey mendelson at March 27, 2005 04:16 PM
On what basis does the government have to dictate to ClearWire or any other service provider what they can and can't do with their own networks? How different is this from the government mandating that cable systems must carry any and all available channels.
If clearwire blocks VoIP, fine, let the consumer go elsewhere. Substituion, while not available everywhere is becoming increasingly possible. If my DSL provider blocks Vonage I go to Cable. If they block it, I go to wireless. If all three block it, well then what a golden opportunity for a start-up provider using something like WiMax to deliver unblocked services. Of course, if there is an economic argument to be made for unblocked service, then it is likely that it will be offered by the carriers (which many do today - e.g. one rate for consumer Internet access and a higher rate for business access which allows things like IPSec).
Certainly I can understand the need for regulation to ensure that carriers explicity state what they allow and don't allow, and to restrict the ability to change blocking during a contract period, but to say that all carriers must allow any and all sevices essentially says to the carriers that they are not able to run their operations in a manner that maximizes shareholder value.
Instead, we ought to be encouraging a free market, where substitution is plentiful, and where carriers are free to offer the services they wish, at the prices that the market will bear.
Posted by: Irwin Lazar at March 27, 2005 01:33 PM