5 ways to shape Ajit Pai’s proposal to actually benefit broadband users via net neutrality

The FCC’s December 14^th vote on repealing net neutrality will have far reaching implications for our future. It is important in that case to not only read articles and watch the videos, but to actually read Ajit Pai’s proposal in its entirety. This Harvard grad and former Verizon lawyer chooses words carefully, leaning on legal terminology rather than technical verbiage to produce a conclusion that does not stem from his premise. It is not clear what the intent of this proposal is, however, it clearly does not benefit broadband users.

The proposal is based on an attempt to classify broadband an “information service” rather than a “telecommunication service.” Pal’s referenced Title 47 defines a telecommunications service as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” That said, Pai claims that caching, or storing of the most static data, is a change in data. Any technical person knows that this isn’t true because only the delta (user inputs) are all that would really need to be stored in cache. Furthermore, caching is wholly unnecessary for broadband; The necessity arises for broadband providers that want to falsely market speeds like 1G of Internet access over coax, defying the laws of physics on Earth. Pai falsely states “the record reflects that without caching, broadband Internet access service would be a significantly inferior experience for the consumer.”

The argument posed is quite arrogant. Pai goes on to claim that DNS or Domain Name System makes broadband carriers software service-esque because DNS associates domain names with numerical IP addresses. This misses the point that DNS need not be managed by a carrier and many times is not managed by a carrier. IP addresses may be provided by a carrier as obtained from ARINs. Pai’s point here is flawed again, analogous to an argument that a phone number is no longer a phone number if it is advertised as a vanity number.

At the end of the day, broadband operators provide a switching service. This ruling will impact broadband marketing ability, as well as have untold effects on competing content providers like Netflix. This proposal enforces broadband provider’s ability to market switching speeds as switching plus caching in essence duping the end user and making their content seem optimally consumable to an end-user. Some  articles have argued that companies like Comcast may throttle Netflix on their pipes just as they do with competitive VoIP traffic. There are Acceptable Use Policies and enterprise agreements where those details can be hashed out, but ultimately compromises result in a loss for consumers.

The unavoidable scenario that will result from the new rules is a Comcast Venture like Hulu receiving network priority due to its proximity, namely within the Comcast ecosystem, being able to provide users with a better experience over the Comcast network. Hulu is a Comcast Venture alongside Time Warner, Inc. and others. That said, throttling and site denial seems likely. We need only look to the example of DirecTVNow and the issues with content licensing around sports that plague the service. Not all programming is available everywhere on every device. This will only increase as companies like Comcast obtain wireless spectrum. Although this proposal doesn’t call for throttling outright, it certainly paves the way for providers to prioritize their own services on their networks.

Pai can be seen in an interview with The Heritage Foundation where he proclaimed to a mainly right wing, conservative audience that this proposal will bring about jobs and better Internet access to rural America. I’ve read the proposal but I don’t see anything about right of ways, access to poles, construction of Central Offices or Head Ends. In fact, these things are prerequisites that are never mentioned in the proposal. Rather there’s an attack on the 2015 classification of a broadband as a telecommunication service as leading to lower investment in rural communities. Cable operators didn’t stop investing in infrastructure in 2015 due to fears about Net Neutrality, they did so because they’d already physically built out to all the easy places and prices keep dropping due to competition.

This proposal also seeks to have broadband and internet removed from status of a utility. This is troubling for many reasons. First, local counties like Polk and Madison in Western North Carolina on the outskirts of the more densely populated Asheville. Providing access to such places has a unique set of challenges governed by mother nature as well as politics. There have been broadband surveys for years with residents screaming for service yet not one order was taken by a carrier at any town hall. Municipalities can help constituents by ordering service from the LEC and arranging for deployment throughout the town. Most can upgrade their systems for what they’re paying today but would rather use the old, slower copper without being able to see the forest from the trees. Keith Conover called it “a chicken and egg scenario” however that’s not true. The carriers won’t build if there’s no revenue. A town that spends a majority of the revenue on telecom services as a utility can have a huge impact on a carrier’s deployment and the availability of those services. That’s not really discussed in any of these town halls or in Pai’s proposal.

Back to broadband not being a utility…internet access and the fiber routes in America are a national security concern. Hacking of a broadband carrier can have far greater dangers than a hack of an electrical grid. Number spoofing is a problem for investigators, 911 operators, and the general public. Spoiler alert, just read the latest Dan Brown Novel, “Origin”. This should certainly be protected and policed by the FCC and the Public Utilities Commission to keep America safe.

The Brand X Supreme CourtThe Brand X Supreme Court case was raised in order to sway folks to declassify broadband as a telecommunication service and utility. The case was decided back in 2005 and the internet was wholly different. Justice Scalia’s opinion was guided by the common practice of bundling at that time. Back then, the thought of watching TV over the internet was a joke! In 2005, the term VoIP was synonymous with horrible phone call quality that was riddled by static, echo, and jitter. Today, the PSTN or Public Switch Telephone Network is moving to IP based voice transmissions using SIP. Copper is being retired and plain old telephone service is tough to get. Yet in rural areas, some folks are still using modems and dial-up internet.

With VoIP running over the Internet, it’s more important than ever to regulate broadband as a utility. IP phone services have taken the place of the old copper phone line. Today, you can plug a phone into your internet connection and get dial tone access. Callers can set their E911 info as well. In fact, part of your monthly bill includes a mandatory FCC and E911 charge. That is paid so that when you dial 911, emergency services will know where to send help. I think we can all agree that this is an essential service we would need to keep.

In Pai’s proposal he states, “The record reflects that information processes must be combined with transmission in order for broadband Internet access service to work, and it is the combined information processing capabilities and transmission functions that an ISP offers in broadband Internet access service.”  From a technical, not legal view, these information processing services mentioned are the same as Caller ID or Call Waiting in function. Not the core switching, but an additional service, much like “increased speed” would be from your broadband carrier, especially since that “speed” is based on caching. This makes an ISP or broadband operator a Common Carrier. Sending data packets over a switch or router in 2018 is the same function as a mid-twentieth century operator connecting two calls.

Pai’s interviews make it sound as if his proposal is going to have small cable operators investing in build outs. I see nothing in the proposal that leads to that conclusion. Copper is being retired and fiber optic build outs are not inexpensive. They take a long time and are restricted by Mother Nature, just like other telecommunications services and utilities.

It’s not clear what Pai’s ultimate motivation is with this proposal. That said, his interviews and speeches force one to examine the foundational claim of jobs and network expansion. Digging deep into the proposal, I don’t see a single piece of verbiage that would get Spectrum to build out to where I live in the small, one stoplight town of Mill Spring. If it did, I’d back the plan in a minute. Greater internet access means more jobs because people can work remotely. It would also mean that I can buy that house on the Appalachian Trail and work from my home office in Madison County. Unfortunately, I don’t see anything in this proposal that makes me hopeful. The lingering question after a thorough examination is, what is this guy trying to pull?

Here are five things that should have been included in Pai’s arrogant proposal at light-handed regulation that would actually create jobs and give broadband users a better experience.

1. Right of way and easement: allow for quicker, less expensive network expansion.
2. Classification as a utility to allow carrier access to routes along power poles.
3. Construction of head ends and central office to support additional traffic switching.
4. Consumer protection from oversubscribed network services and truth in advertising.
5. Aggressively challenge telecom mergers and acquisitions that reduce competition.