There are a number of issues raised by the New Jersey executive order banning contracts, after July 1, 2018, with communications providers that violate New Jersey’s definition of network neutrality.
Tragically, net neutrality remains a concept that is reduced to a bumper sticker. It is horrifically more complex than that.
As with the national argument over network neutrality, the provisions combine a whole lot of operating practices everybody agrees with, and which internet service providers agree must be followed, including every provision relating to “freedom to use lawful apps.”
Look at the clauses structurally. In such an order, the only enforceable actions include the phrases “shall” or “shall not.” Everything else is preamble or not strictly enforceable. And, as you would guess, all the clauses relating to “shall” or “shall not” apply to ISPs, not app or content providers.
Logically enough, you might argue, for an order relating to procurement of communications services from firms that operate as ISPs.
At a high level, though, if the genuine intent is to prevent anti-competitive pressures in the internet ecosystem, an argument can be made that such orders are incomplete at best, harmful at worst, and almost always based on questionable, overly-broad premises.
Consider the argument that the core of the net neutrality debate genuinely is about internet freedom. Ignore for the moment the issue of “whose” freedom supposedly or authentically is enhanced.
There is almost no disagreement--in any quarter--about consumer right to use all lawful apps, without deliberate and unfair application of packet prioritization based on the ownership or category of app. In other words, voice over Internet cannot be blocked or degraded when other apps are not impeded.
Nor can an ISPs own VoIP services be guaranteed better network performance when competitors are not allowed to use those same enhancements. OTT video services owned by rivals likewise cannot operate at “best effort only” when an ISP-owned OTT service uses packet prioritization.
Note, though, that the order only says “paid” prioritization shall not be allowed. It is not clear whether unpaid prioritization of internet traffic is allowable, so long as all internet packets receive such treatment.
There are obviously some practical reasons for such language. Prioritization might not always be a bad thing. Sometimes--and that is why many favor some application-specific forms of packet prioritization--prioritization leads to better app performance and user experience.
That is why content delivery networks are used by major app providers. But the specific language is intended to ensure that content and app providers do not have to pay for any such prioritization. Whether it is a good thing or not is quite another question.
Of the specific clauses, everybody, literally everybody, agrees that consumers must have access to all lawful content, applications, services. They have the right to use non-harmful devices, subject to reasonable network management that is disclosed to the consumer. That never has been what the argument has been about, all rhetoric about freedom notwithstanding.
Instead, the argument always has been about business practices that are hard to describe or implement, in a technical sense. ISPs are prohibited from policies that:
- “Throttle, impair or degrade lawful Internet traffic based on Internet content, application, or service”
- Engage in paid prioritization.
Among the problems here is that the difference between allowable network management and impermissible “throttling” is nearly impossible to clearly delineate. Some might even say measurable neutrality rules for the internet are impossible.
Even if you think it is possible to determine that a network neutrality infraction has occurred (some think it cannot even be measured), others believe a generalized “fast lane” regime is not possible, even if ISPs wanted to implement one.
“These predictions intentionally ignore technical, business, and legal realities, however, that make such fees unlikely, if not impossible,” Larry Downes, Accenture Research senior fellow, has argued. “For one thing, in the last two decades, during which no net neutrality rules were in place, ISPs have never found a business case for squeezing the open internet.”
Some of the confusion comes from the use of IP for both the internet and other managed services, private networks and business services and networks, which often engage in packet prioritization for clearly-understood reasons.
Some of the confusion comes from the notion that differentiating tiers of service--just like consumers are offered speed tiers or usage tiers--necessarily impairs the consumer’s use of the internet.
Perhaps the reality of packet discrimination in the core network, used by virtually all major app providers, and its obvious similar value in the access network, are all too real for app providers.
App providers use content delivery networks routinely to improve end user experience. It does take money to create and operate a CDN. That raises the cost of doing business.
So the fear that end users might also be provided CDN services, all the way to the user endpoints, could have cost implications. It is not clear how this hypothetical system would work.
Would all internet access move to CDN delivery, or just most of it? Cisco analysts, for example, believe the core internet network are, in fact, moving to use of CDN. So there might still be some apps that operate “best effort” through the core of the network. But Cisco believes most traffic would used prioritization, and much of that “paid.”
Precisely “who” pays can vary. An app provider can pay a third party, or an app provider can build and operate its own CDN. Either way, the costs get paid for (by end users, in all cases).
And other network developments, such as network slicing, have value precisely because some network features can be specifically selected when creating a virtual network.
The point is that there is an increasingly-obvious move to packet prioritization mechanisms for both private and public networks, managed services and “internet” apps, in large part because latency increasingly matters for many important apps, and packet prioritization is fundamentally how we reduce latency problems.
How we prioritize can take many forms, but storing content closer to the edge of the network is one way of prioritizing. Introducing class of service mechanisms is another way of achieving the same goal.
“In broadband, it’s the content providers who have leverage over the ISPs and not the other way around, as Netflix recently acknowledged in brushing aside concern about any “weakening” of net neutrality rules,” said Downes.
The unstated principle is that consumers somehow are harmed, or would be harmed, by any such practices. Ignore for the moment that anti-competitive practices are reviewable both by the Department of Justice and Federal Trade Commission.
In other words, any anti-competitive behavior of the type feared, such as an ISP making its own services work better than third party services, is reviewable by the FTC primarily, and also by the DoJ.
As a practical matter, any such behavior would provoke an immediate consumer and agency reaction.
The other key concern is “paid prioritization.” Let us be clear. The fear, on the part of some app and content providers, is that this would raise their costs of doing business, as they perceive there actually are technical ways to improve user experience by prioritizing packets.
App and content providers themselves already use such techniques for their own traffic. They know it costs money, and the fear is that they might have to pay such costs, if applied on access networks as well as the core networks where app providers themselves already spend to prioritize packets.
The rules also bar ISPs from (preventing) use of a non-harmful device, subject to reasonable network management that is disclosed to the consumer. It is not clear to me that there ever has been any instance where this issue has even risen, but obviously some device suppliers want the clause added.
Every bit of communications regulation, as with every action by public officials, has private interest implications. Some actors, firms or industries gain advantage; others lose advantage, every time a rule is passed.
Nor is it unlawful for any industry to try and shape public opinion in ways that advance its own interests. It happens every day.
But net neutrality is horrifically complicated. It’s reduction to a bumper sticker slogan is unfortunate. You cannot really solve such a complex problem (it is an issue of business advantage and practices) by ignoring its complexity. “Freedom” really is not the issue.
Business practices and perceived business advantage are the heart of the matter.
