My response to the FCC to proceeding 17-108

2017-05-30 09:50

My response to the FCC to proceeding 17-108


I submitted this as an official filiing to the FCC (confirmation number 20170530680421266) as my personal take on why the proposed changes are wrong for consumers and the industry. The full response is included below, you may want to have a copy of the proceeding open as well, as I go through and response to each paragraph (that I chose to respond to) by number.

My Filing

As a professional in the telecommunications industry, I find these proposed changes obnoxious to the public interest. The central assumption seems to be that a functioning market in Internet Service Providers exists, and has served us well for the past 20 years under the previous regulatory framework (before the Title II Order).

This is not the case, and policies that depend on market competition require a functioning market to be effective; that is, a market with a low cost of entry, a plethora of competing offerings (not just two or three) and low friction to changing which offering to buy. This is decidedly not the case with Internet Service in any part of the United States I am aware of. Wo while the past years have seen a meteoric rise in Internet services and innovation, it i smy opinion that this is in spite of the regulatory environment, rather than caused by it.

In Paragraph 27, the commission makes a grave and dangerous error in stating that a suer "posting on social media" or "drafting a blog" is engaged in making use of an information service provided by their broadband Internet provider. The information service is that of the social media service, or the blogging platform, not of the user's ISP. The only service of their ISP being used is the transmission of the data (which the user has chosen) to the point they have determined (the provider of the information service) without any modification.

In particular, the broadband provider does not "offer" the social media service to its subscribers, the social media company does so. As, likewise, the blogging platform offers their suers the "capability" to publish and make available information online. The broadband provider does not give or grant this capability by merely connecting their users' computer to the information services' computers — the provider of the blogging service is essential to the process.

By analogy with a traditional telephone system, calling a customer service number does not imply your telephone provider offers an information service because the call center provides an automated process for you to access your account information. The service provided by your phone company is telecommunications; the service provided by the call center is an information service.

This assessment is necessarily from the perspective of the user, as the text of the act specifically describes the classifications in terms of the offering — the service that is purchased.

"Can broadband users indeed access these capabilities?"

The emphasis on access is important; yes, users of broadband Internet services can access those capabilities — but those capabilities are not offered by their broadband provider.

"Are there other capabilities that a broadband Internet user may receive with service?"

Yes, substantially many other capabilities are permitted by broadband service today. These include direct interconnection over VPN or other remote access technologies, of the users' equipment across the Internet, a fully transparent telecommunications service. As well as access to service providers that provide transit and connectivity to other networks, like mobile SMS (usually via email gateways) or Voice over IP services that interconnect with the PSTN (and then are subject to common carriage rules).

"If broadband Internet access service does not afford one of the listed capabilities to users, what effect woudl that have on our statutory analysis?"

It is my opinion that when a provider of broadband Internet does not themselves offer the information service the user is accessing, the provider is not "offering" the information service, but a telecommunications service.

Importantly, if the broadband provider is not responsible to support or engage the user in the use of an information service, they are not offering that service.

This, in context, it may be appropriate to classify some services provided with broadband Internet as information services, but that when not used to access those specific services offered to their users, the broadband provider is providing a telecommunications service, and must abide by those rules.

In Paragraph 28

"We seek comment on how consumers are using broadband Internet access service today"

I se my broadband Internet service only as a transit connection to the Internet. I do not use any service provided by my Internet provider including DNS resolvers, for which I use my own equipment. I find the conclusion that the entirety oof my use constitutes either an information service or a telecommunications service exclusively to be preposterous. Even were I to use my ISPs DNS resolvers, the limit of the information service that I am using is the DNS service itself. My request to retrieve a "tweet" is not serviced by my ISP, but by Twitter.

"Is the consumer capable of accessing these online services without Internet access?"

No, in many cases the services offered by third parties are offered only through the Internet. This question is the analog of "are consumers capable of making phone calls without telephone service" for which the answer is also "No," and which has no bearing on whether the telephone service itself is an information or telecommunications service.

"Could a consumer access these online services using traditional telecommunications services like telephone service or point-to-point special access?"

In principle, this is entirely possible — the information service provided by Twitter, for example, can be accessed via SMS messaging in mobile networks, and nothing except cost and pragmatic considerations prevents private individuals to establish direct communications links to their preferred email, or social networking providers.

"...are we correct that offering Internet service is precisely the service capable..."

You are correct in this assessment. Internet service may be required to access many of the information services consumers use, but this is a technological convenience, not a strict requirement. In the absence of the information service providers, Internet service would not itself provide those capabilities. It is important to understand that ISPs have often offered both information and telecommunications services, as a direct recognition that the pure telecommunications offering is not always sufficient. As more and better services have been made available by companies other than ISPs, the need (and even demand) for those supplementary services has rapidly diminished.

In Paragraph 29

In direct conflict with the statement that "broadband Internet suers do not typically specify 'points' between which and among which information is sent online" is the prevalent and ubiquitous use of URLs (Uniform Resource Locators) which precisely address an online resource (in the same manner that a telephone number is the address of a telephone).

The commission's assertion that "routing decisions are based on the architecture of the network" is true, and is true of telephone networks as well. In land-line networks the telephone number is assigned to a switch serving the user, and that switch is located by examining the telephone number dialed. Number portability ensures that a database is consulted during the routing of the number. Similarly, mobile networks locate the user's device by consulting a database in the network to find the current location of the handset, in order to route the call to the correct destination. This is no different than the process to locate a website the user wishes to contact — location information is retrieved and the network routes the request to the destination, whether by name, telephone number, URI or other means.

Importantly in mobile networks, or when calling an unknown phone number, the user has "no knowledge of the physical location" they are contacting, yet telephony is a telecommunications service.

Consumers do indeed want and pay for this location function the network provides, but these along are not sufficient to substantially change the entire service offered from a telecommunications service to an information service.

Importantly, traditional telephone does not require the user to carefully specify the path through their telephone provider's network, then through the called party's network in order to connect the call; it is unreasonable to assert the same function requires classification as an information service for broadband Internet, when it is present in existing telecommunications networks.

In response to paragraph 30

While providers may use a variety of technologies to transform the representation of user information, interwork networking technologies, or otherwise improve the functioning of their network, these do not constitute a change to the content or form of information the user is sending over the network.

The representation of data can take many shapes. The same speech can be represented by a video recording, solely the audio recording, or a textual transcript. Within computer systems each of these forms of representation may have many different technological encodings and representations. In nearly all cases neither of these (overall form, or technological encoding) will be changed during transmission to the other party, and in many cases the technology used will ensure that any modification is detected (as corrupt/erroneous) and rejected.

The kind of transformations the commission cites are one of several kinds:

"protocol-processing for interworking"

This is analogous to the kinds of processing done in existing telephone networks, especially between national and international networkings in the global telephone network. Telephone service is a telecommunications service and is subject to these transformations, so broadband service is not an information service solely because of these same category of transformations.

"change in content" by use of firewalls

WHile it is certainly a service provided to end users, and also operated for the benefit of the broadband provider (to mitigate attacks on the network itself), firewalls and other systems blocking traffic do not constitute sufficient transformation to mandate the service be classified as an information service. This can be seen as consistent with FCC rules regarding telephone companies being allowed, in fact encouraged, to supply their users with the ability to block unwanted calls (robocalls). Providing such a service does not undermine the nature of the service as a telecommunications service.

As as user of broadband Internet I do not want my provider to alter or restrict my user of the service in any way — and I am happy to release them of any liability as a result.

In response to paragraph 33

In the absence of better and more specific regulation or grants of authority from congress, the framework of Title II is appropriate as it allows the FCC to exercise appropriate discretion while maintaining the necessary protections (common carriage) to preserve the environment of open innovation in the face of the current oligopolies.

In response to paragraph 34

Indeed, the industry around the Internet has been largely unregulated, which has allowed massive societal change, economic growth, and general quality-of-life improvements. However, it should be noted that the innovations have all occurred "at the edge" — it is not ISPs that created YouTube, Facebook, or Netflix, it was not Verizon or AT&T that created Skype. The innovations that we have enjoyed are because the Internet was not constrained in its use, and these are precisely the sort of constraints that I strongly object to — the constraints that block innovation. Common carriage does not block innovation; instead it blocks protectionism. ISPs today do not have a history of innovation; at most they have incrementally improved their networks in order to provide more capacity, both for each individual user, and as demand has grown among all users. This is no small task, and is an important one; but it is infrastructure, the same as electricity, water, or telephone service — many of the concerns that apply to those apply equally well, yet some few may not. This is no reason to throw out the framework entirely.

In response to paragraph 35

I expect my broadband provider to be nothing more than a reasonably-priced transit provider. I do not want them to interfere with or manipulate my traffic through them in any way—if the Title II provisions are not enforced, I have no guarantee of that.

In response to paragraph 36

Whether an ISP offers supplementary services with the offering of a telecommunications service has no bearing on the telecommunications service itself. Telephone service does not become an information service because I subscribe to voicemail—only the voicemail service itself is classified differently.

I do not use, and would not separately pay for any such supplementary services. I am, in fact, likely unaware of the full extent of such services, as I do not have any interest in using them.

In response to paragraph 37

An ISP operating DNS resolvers and caching systems is engaged in both providing the telecommunications service (as an ISP) and some information services (the DNS resolver and caching). The DNS resolver provided is a convenience to their users, though an ISP need not provide this themselves. (Google, among other companies provides a DNS resolver for public use.) The ISP gains from providing a DNS resolver by limiting traffic across their network, as the resolver will cache queries (as part of the operation of DNS) allowing the traffic from their customers to be handled internally, without additional costs to the ISP. Some ISPs will also use their DNS resolvers to return search or advertising to users who attempt to access sites that do not exist. (This often provides little benefit to users, who would be better served by an accurate response that the site does not exist. Instead this provides benefit for the ISP, through advertising revenue.)

Caching is, again, primarily of benefit to the service provider, as it allows them to save infrastructure costs by reducing the required capacity. This may benefit end users in reduced cost of service, but the nature of the service is not vastly different.

Without ISPs provided DNS resolvers, the user's own equipment would need to perform that function. This is not unusual or difficult, and there are providers of DNS resolvers that are not ISPs a user could use as well.

In response to paragraph 39

While I believe the light-touch approach from the past 20 years is appropriate, I dot not agree that the FCC should tie its hands with respect to ensuring that open and unconstrained access to the Internet is preserved, and this specific regulator constraint (that of common carriage) requires the classification as a telecommunications service. It is important the rules are clear, both to industry and to consumers. Classification as a telecommunications service services to provide the necessary tools to provide that clear guidance, and does not require the FCC to stifle innovation or impose heavy-handed regulation—in fact, it is clear the FCC does not intend to do so.

In response to paragraph 40

I do not believe that mutually exclusive categories are the correct framework given the complex nature of modern telecommunications. The difficult to interpret cases of DNS resolvers and caching systems would benefit from a clear separation from the underlying service.

In response to paragraph 42

The peering and exchange of traffic between ISPs is, of course, a private arrangement. However, in as much as a service provider "offers to the public" the exchange of traffic, it is engaged in offering a telecommunications service, and must be subject to the same rules as any other.

This is an especially critical consideration in the case of providers who are "Tier 1"—those that do not pay another provider for transit to any portion of the Internet, but who maintain a peering agreement allowing them to reach every destination. These providers, in particular, have exceptionally powerful roles and as a matter of public interest must be encouraged (or regulated) to abstain from the abuse of that power.

In response to paragraph 48

The Commissions' claim that changing the classification again will alleviate regulatory uncertainty is specious—a single change introduces uncertainty, regardless. Multiple changes only increase, rather than alleviate the uncertainty.

In response to paragraph 50

"Do these isolated examples justify...?"

Yes, absolutely. In all cases the examples have demonstrated that the industry is unwilling to police itself, and that consumers are harmed. The markets are substantially failed, as there is a lack of competition, where competition exists the offerings are often not equivalent, and there are too few for a market to emerge. As well, high costs of entry prevent competition from developing.

"Is there evidence of harm?"

Yes. The ISP industry has record-breaking low customer satisfaction.

In response to paragraph 55

There is not substantive difference between mobile and fixed broadband service in terms of function. I cannot agree with the commission that a service offered to literally millions of end users (the public) is a private service.

In response to paragraph 60

The inconsistency is resolve also by continuing to classify as a telecommunications service, without any need to reconcile.

In response to paragraph 61

Given the vast technological changes happening in the telephony world, i ti snot unreasonable to conclude that the Internet and existing commercial mobile radio services are increasingly and completely interconnected.

In response to paragraph 73

Removing a "vague" set of guidelines will not promote certainty, but instead uncertainty. Firstly, among consumers, who will have to trust and understand what providers are selling individually, instead of relying on a standardized regulatory framework. Secondly, for service providers, removing guidance does not change what consumers expect of them, nor what behavior the commission may find acceptable or not—the set of guidelines increases certainty as it becomes more restrictive. You cannot have light-touch regulation withou significant uncertainty. (Due to ex post enforcement)

In response to paragraph 75

Without any rule, there can be only one outcomes—ISPs continuing to "innovate" by interposing themselves and rent-seeking. Common carriage is the appropriate standard.

In response to paragraph 77

Allowing companies to ignore their customer's protections if they are too small is a mistake; as is requiring burdensome regulation. Enforcement actions should be taken as needed, with a focus on large impact. I see no reason to modulate the protections offered.

In response to paragraph 79

On the surface, yes, an ISP can sufficiently curate and sell a non-telecommunications product. It would be extremely surprising to me if that product would be competitive with the usefulness and expense of un-curated Internet access. I cannot imagine such a service as broadly useful or demanded as the general telecommunications service of Internet access. I certainly would not buy such a service, whatever the price.

In response to paragraph 80

By codifying a no-blocking rule that ISPs already abide by, no burden is applied to the ISPs. The rule cannot be burdensome unless the commissions chooses to make it so.

In response to paragraph 81

The rule is sensible and meets the expectations of consumers buying a telecommunications service.

In response to paragraph 82

Common carriage is the appropriate framework, the reclassification proposed is in error.

In response to paragraph 83

The prohibition on throttling of selected traffic benefits consumers mainly through the innovation that is enabled—an equal playing field enables easy entrance of competitive offerings and new uses that cannot be prediction.

Differentiated prioritization may have specific applications where it provides a higher quality of service, but it must be under the control of the consumer, not the ISP. This is critical to the adequate performance of latency-sensitive applications; but the consumer must be able to choose which traffic is prioritized and how that occurs. The simplest solution is to prohibit ISPs from doing so at all, and require that the consumer's equipment do any prioritization.

Preventing differentiation will increase competitive pressures and is a net positive for consumers.

In response to paragraph 89

As a functioning market requires consumers to have all relevant information available to them, transparency is a requirement.

In response to paragraph 90

The marketplace is not competitive. Transparency and reporting requirements help consumers apply pressure to the few ISPs available to them in order to get the service(s) they want.

In response to paragraph 93

The ideal case is that no exception is allowed to the bright-line rules. ISPs already have safe harbor protection from liability for unlawful content. Giving them the authority to determine such and prevent transmissions of it grants significant privilege to censor the network. "Reasonable network management" is again designed to give ISPs broad latitude to censor the contents of the network. They should be held to the high standards of common carriage. Only specific network management practices should be allowed, but regulation and rule-making can hardly keep up with technology so no other recourse than case-by-case evaluation is possible.

In response to paragraph 94

Protecting the innovation space represented by the over-the-top offerings is extremely important to maintaining the innovation driven by the Internet.

In response to paragraph 95

Mobile and fixed broadband are not different in the service they provide so no fundamental differences should be present in the regulation of the services.