FCC Net Neutrality Workshop Examines Importance of Transparency

WASHINGTON, January 21, 2010 – The Federal Communications Commission in a Tuesday workshop explored consumer choice, user control of their online experience and the importance of transparency.

The agency’s fourth Open Internet Workshop on Consumers, Transparency and the Open Internet focused on the sixth principle of network neutrality – transparency.

That principle states: “subject to reasonable network management, a provider of broadband internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this part.”

In opening remarks, FCC Chairman Julius Genachowski said that the sixth principle was most important because it provides consumers with the most information possible to make the best decisions and it also reduces government involvement in dispute by creating direct access to more publicly available information.

“When we talk about internet consumer and users, we mean not only an individual consumer subscribing to a fixed or mobile broadband service, but also an engineer in a garage or at a start up company who is developing and deploying a new application over the internet,” Genachowski said.

Approximately 120,000 people and organizations submitted filings on FCC’s notice of a proposed rulemaking on its “open Internet” policy.

Workshop moderators – Joel Gurin, the FCC’s head of its Consumer and Government Affairs Bureau, and Julius Knapp chief of the agency’s Office of Engineering and Technology –  framed the discussion by asking about the kind of information consumers might need about network management practices, tools they have, how to present the information and the appropriate role for the public in disclosing policies and practices.

A commenter said: “A large and diverse group believe that transparency can go far to preserve the Internet’s openness.”  He commended the variety of stakeholders that weighed in with positive comments on transparency and highlighted the constructive joint filing of Google and Verizon.

Agency Commissioner Michael Copps said he was happy to see that the FCC was returning to its role as a consumer protection agency.

Commissioner Mignon Clyburn asked whether service providers are providing consumers with services and plans most beneficial to them.  She was not convinced that consumers as well as content and application developers receive the information they need.  She brought up concerns of actual speeds being a fraction of advertised speeds and service providers not disclosing when they block IT traffic.

“Once there is disclosure of all plans and services only then can there be a thriving market place,” she said.

Commissioner Meredith Attwell Baker said that “while there was divergence in the best way to keep IT open, transparency is a path of more common ground.”

Federal Trade Commission Chairman Jon Leibowitz described the need for FCC involvement in promoting transparency and nondiscrimination.

“Transparency and an open internet are critical for consumers and innovation,” he said, but cautioned that “absent effort by the FCC, the open internet will not be a given.”

He reiterated that transparency and disclosure will enable consumers to pick affordable technology that fits their needs.

Konrad Finkenstein from the Canadian Radio-telephone and Telecommunications Commission spoke about his experiences leading to CRTC’s decision in October to create net neutrality rules based partly on the FCC’s principles.

Finkenstein defined two separate network management practices: economic practices based on regulation of use and technical practices like deep packet inspections, or DPI.

If the CRTC receives a complaint about a service provider, it must assess it based on the following criteria:

• Is the network management technique designed to prevent a certain practice?
• Is it narrowly tailored?
• Does it cause as little harm as possible to the customer?
• Is there any less intrusive way to achieve the same result?
• The technique must be advertised 30 days in advance, and must be explained so that the average customer can understand. For example, why will it be used, when will it occur, what type of traffic is subject and how will it affect the users internet experience including the effect on speed?

If the service provider knows that the content will be degraded the company must come and get prior approval from the commission.

Finkenstein added that Canada also has required that data gained from administering a network management practice must be destroyed as soon as it is not needed to preserve customer privacy.

Sascha Meinrath, director of the Open Technologies Initiative at the New America Foundation, said that since 1995 with the onset of network privatization there has been a steady removal of information and data from the public domain.

“Data collection and transparency has disappeared…willful ignorance has led to bad policy actions and inaction…disempowered users allowed for a dysfunctional market,” he said.

He believes that the FCC has a responsibility to fix this problem and pointed the agency and others to New America’s Measurement Lab platform to deploy internet research tools.

Jay Monahan, vice president and general counsel of Vuze, said if a content provider were to block peer-to-peer traffic or label it “non time sensitive” that would seriously affect his legitimate business interests.  He says that without full disclosure from providers, consumers assume that it’s his company’s fault, for example, rather than the provider’s problem.

Monahan believes that transparency must be backed by network management principles and any technique used to slow or delay network traffic must be disclosed.

Parul Desai, vice president of the Media Access Project, argued that transparency rules are necessary because disclosure of network management practices are critical for allowing users and innovators to have realistic expectations from their internet experience.

She said disclosure is necessary to determine whether a particular management practice is designed to address legitimate congestion and traffic management issues.

“We need clear and conspicuous rules,” said Desai, adding that the CRTC model for addressing consumer complaints is a good model to follow.

Ron Dicklin, co-founder and CTO of Root Wireless, said consumers make educated decisions on their wireless services.  He added that most of today’s frustration is due to mismatched expectations.

Former FCC Chief Economist Gerald Faulhaber reminded the agency that the current market is consumer-centric where consumers drive decisions.  He explained that consumer-centric markets have three features: competition, transparency and judicious antitrust protection.

Faulhaber added that “successful competition requires transparency from all sides of the market including ISPs, application and content providers and backbone developers.”  He warned that information asymmetry could lead to potential market failure, and regulation will be required to ensure transparency if a market failure occurs.

Faulhaber defined transparency as credible information, immediately available at the time of purchase – it must be easy to understand and not buried on a web site or label.  He likened the form of the information to a nutrition label or a Food and Drug Administration prescription label.

Nicholas Weaver from the International Computer Science Institute at University of California, Berkley, demonstrated the broadband survey tool Netalyzr, which aids individuals in finding out more about their network.  He explained the results of his tests in Starbucks versus his test in the commission.  The results tell the users about bugs, latency, bandwidth buffering and other potential issues with the network.

David Young, vice president of regulatory affairs at Verizon, agreed with other panelists that robust transparency and disclosure is essential to increase the end user’s experience.

He said Netalyzer was a great detailed tool, but simpler tools are available too.  Third party evaluation that can do a side by side comparison of services would be useful, but no one has yet performed a real technical analysis.

Young suggested that the North American Network Operators Group should be tasked with creating a sounding board for the best practices when it comes to disclosure and network management.  He thinks that NANOG and not the FCC should determine what is best to disclose to consumers and how to disclose it.

Network operator executive Fernando Laguarda echoed the idea that the success of the company depends on customer satisfaction.  LgGuarda, a vice president with Time Warner Cable, said that Time Warner gives its customers very clear information regarding its plans, billing and termination, additionally they provide web assistance, local offices and 24 hour telephone service centers for their customers.  LaGuarda does not believe that the transparency principle needs to be codified.

LaGuarda cautioned that if the agency did mandate disclosure it should allow for flexibility and give users as much information as possible.

He said there has been too much focus on disclosure instead of information to customers.

“There are unfortunate consequences if the companies make too much detail available,” he said.

Joel Kelsey, policy analyst for Consumers Union, said he was pleased with the FCC’s comprehensive approach toward improving wireline and wireless disclosure.

Kelsey said the disclosure of network management practices were particularly important in providing consumers with an accurate representation of the internet service they can expect, and in ensuring that network management practices are narrowly tailored to address a legitimate purpose and not interfere with consumer access to a best efforts network.

“As a matter of good consumer disclosure policy, the FCC should stop ISPs from describing binding terms and conditions within a multi-page legal document in eight point font,” he said.

His also stressed the need for clarity versus detail: “Clarity of information on network practices is a function of information design.”

Kelsey said consumers have the ability to learn and understand more sophisticated terms such as octane levels, caloric intake or credit scores) as soon as the government provides an industry standard and mandates consistent disclosure of information.

Kelsey ended his testimony with a couple of examples of what a government mandate for meaningful network management disclosure should look like:

1. Any limits imposed on a subscriber’s upstream or downstream traffic. This includes blocking, delaying, de-prioritzing or prioritizing, or inserting traffic into the stream;

2. Technical details of the methods used;

3. Thresholds that trigger certain network management practices, an estimate of the percentage of users affected, and the duration of the practice. Examples include time of day, network congestion levels, user bandwidth consumption;

4. Any technology that inspects the content of Internet traffic, other than the processing of basic addressing information;

5. Differences in how the network is being allocated to different uses, including “managed services”. This includes the amount of capacity dedicated to Internet traffic, and if shared capacity, how it is shared’

The panelists continued to tackled issues surrounding the concept of “transparency.”

Weaver stressed the point that there should be two levels of disclosure, “a high level and a lower level.”

Meinrath said: “Security through obscurity is a great way to undermine the security of networks.”  He believes that there is almost nothing that should not be disclosed.  Weaver disagreed by saying that he did not believe that ISPs should be forced to expose certain detailed algorithms and techniques.

Kelsey asked the agency to focus on disclosure, saying what is reasonable versus unreasonable network management practices could differ between wireless and wireline providers.  Kelsey also agreed with the idea of having two levels of disclosure.

There was disagreement over when and if Deep Packet Inspections should be used.

Weaver said that DPI is more appropriate on some networks than on others, adding that it’s acceptable for an ISP to use DPI to cut out spam.  Meinrath countered by stating that DPI is almost never a good idea, and he believes that till we can define what spam is he does not want anyone else to filter his e-mails.

Faulhaber stated that throughout the history of telecom, networks have been subject to variability.  He would like to see providers release information that says “in your neighborhood, at your service tier, customers have received at least X levels of service during the busiest hours of the week.”

Dicklin and Desai liked the idea of progressive disclosure where consumers can dive into more detailed layers if they want to.

Young and Laguarda spoke for the providers and agreed on the need for collaboration to come up with a set of best practices.

Finally the panelists were asked about how they should think about wireless networks in terms of disclosure.  Can the labels look the same?

Young, speaking for Verizon believed that consumer should expect similar disclosure principles for wireline and wireless. Dicklin added that there needs to be a distinction made between fixed and mobile wireless.  There are different expectations from mobile.

Kelsey pointed out that some major issues with wireless providers are the blocked costs and switching fees all of which must be clearly disclosed to consumers before the purchase.

Weaver felt that when it came to wireless providers, pricing per usage should have a default total cost per month and when the ceiling is exceeded service should be cut off instead of running up the bill.

Meinrath ended by saying that consumer empowerment can only be achieved through government oversight.  The oversight must include disclosure, documentation of real speeds and practices and providers must be held accountable for the information they provide.