“Peak bandwidth”

Long-time readers of this blog know that we like to cover broadband and Internet issues wherever possible.  In the spirit of keeping everyone informed, I give you Public Knowledge’s  latest report, “Peak Bandwidth” (PDF):

Bandwidth was formed by the tech bubble of the late 1990s and is typically found in strands of “dark fiber.” The largest fibers are called “backbones,” many of which were discovered next to railroad tracks. Since then, smaller pockets of bandwidth have been discovered in “last miles,” in forms such as DOCSIS-enabled coaxial cable and FiOS brand fiber.

Increasing strains are being placed on our bandwidth reserves. “Hogs” such as young people and cord-cutters are placing an unbearable strain on our bandwidth supplies, and “over-the-top” service providers like Netflix, Skype, Amazon, and Google consume copious amounts of bandwidth free of charge, without providing any valuable services in return. In short, our tubes are being clogged with bits. While that may not seem like a major problem now, the long-term is bleak. We will look back fondly on the day our tubes were clogged. Once bandwidth is gone, it’s gone. Used up bits are gone forever. They don’t come back and can’t be replaced. As a result important marketing messages, ecards, and Facebook updates will be crowded out of the ever-shrinking supply of usable bits.

Hilarious, Public Knowledge.  And I think (hope?) you’ve made your point.

Internet competition

My friend Adam Holland pointed me over to Galen Gruman’s article at InfoWorld, which points to the problems that arise when carriers have considerable pricing power:

Users are being forced to sign up for separate data plans for each device. The cellular carriers advertise their data plans in data buckets, such as $25 for 2GB of iPad usage at AT&T and $20 for 1GB of iPad usage at Verizon Wireless. But you also pay separately for access on your iPhone or other smartphone. That means multiple-device users are asked to pay a lot more, forcing most to make a choice between the two.In both cases, the pricing is illogical and punitive. For their DSL and TV services, neither AT&T nor Verizon (half-owner of Verizon Wireless) charges per computer or per TV, but that’s what they’re doing for mobile devices.

Of course, I’m sure that both AT&T and Verizon would love to charge per computer/TV for home Internet use as well (and AT&T is currently in the process of instituting data caps on home users).  As with so many mobile and broadband ISP policy issues, the fundamental problem is that many ISP operate as monopolies or oligopolies.  Accordingly, there are only two major impediments to their pricing structure:

  1. Government regulation
  2. More competition

Government regulation is, of course, is notoriously tricky.  Indeed, it is often counter-productive as established ISPs use vast lobbying budgets in an attempt to regulate any new competitors out of existence.

But more competition is great when it’s possible, and, fortunately, sometimes new market entrants do appear with offerings that put pressure on established providers.  To use a personal example, my wife and I use a Clear Spot for our only Internet service here in the Boston area.  It’s not perfect (ping times are high), but it’s only about $50/month and is fast enough for high quality Netflix streaming.  Moreover, the Spot’s 4G interface/Wi-Fi router allows us to use the Internet within our apartment or anywhere within Clear’s 4G network.  Among other things, this means we can use an iPod Touch “on the go” (just like an iPhone) and “tether” both of our laptops (no additional fee) and connect up to five more Wi-Fi devices (eight total).

Best of all, because Clear’s service is wireless, we don’t have to subscribe to Comcast even though they are the only ISP providing service to our building.  Maybe that’s why they sent us a letter this past week offering cable+Internet for less than $60 a month indefinitely (not as a temporary promotional price).  I guess the market really does work when the market really does work.

Who will enforce IP laws?

Ars Technica and TorrentFreak are reporting that Australian ISP iiNet (Wikipedia backgrounder) recently released a policy report calling for changes in the way that IP laws are enforced:

The ‘Hollywood solution’ (in very simple terms) involves the employment of private detectives, hired by content owners, to trawl the public internet and gather information. The content owner uses this information to generate notices which are sent to internet service providers. The notices demand that the ISP should terminate the service of a customer subsequently determined by the ISP (not the content owner).

Naturally, ISPs find this approach unattractive and unsatisfactory, to say the least.

Rather than merely passively complaining about Hollywood’s solution, however:

iiNet has developed a model which it believes addresses ISP concerns and is likely to be far more effective. We believe it to be attractive to all participants and one which offers a sustainable strategy that includes an impartial referee, for resolution of disputes between the parties and the issue of penalties to offenders.

Here is iiNet’s proposal:

1.    A content owner will carry out their own detective work and identify an offending computer making unauthorised copies of their content available for sharing via (typically) bit-torrent software. This will provide them with an ‘IP Address’ that can be traced by the issuing ISP to a specific internet service.

2.    The independent body will determine whether the evidence meets a test of ‘cogent and unequivocal evidence’.

3.    IP addresses can be provided to an independent body who is able to identify the issuing ISP and ask that ISP for contact details for the service account holder. The ISP provides those matching contact details to the independent body.

4.    Using those contact details the independent body can issue notices to the account holder informing them that they had been detected making unauthorised copies available, provide educative information, advise the consequences that may follow continued behaviour and ask the account holder to ensure that the behaviour stops.

5.    The independent body keeps records of the notices and may modify the notice for a repeat infringer, or seek further sanctions. Some of those sanctions may include fines, court charges or changes to the internet service.

6.    Consumers who believe the allegations are incorrect will be able to appeal the notice to the independent body. These appeals and/or complaints would be dealt with by the independent body.

7.    Consumers who believe an insecure wireless access (or other technical issue) may be involved, will be referred, by the independent body, to their ISP for technical assistance.

As I read the proposal, it seems like iiNet is primarily trying to do two things:

  1. Remove itself as arbiter of IP-related disputes; and
  2. Lower the transaction costs involved in full-blown litigation by setting up a quicker (and cheaper?) arbiter of disputes.  (Perhaps they have something in mind like the Uniform Domain-Name Dispute-Resolution Policy, which administratively resolves certain types of domain name disputes without having to go to court.)

With respect to #1, I agree with iiNet.  ISPs are ill-positioned to adjudicate IP disputes, especially since the cheapest solution (and thus a compelling business model) is simply to comply with any content owner’s request, no matter how tenuous the underlying legal cases.

With respect to #2, however, I have serious doubts.  iiNet’s proposal could be read as an ISP’s attempt to shift online infringement clearly from a malum in se crime (crimes that are inherently wrong, like murder) to a malum prohibitum crime (crimes that are wrong by statute, like minor speeding violations).  Acts that are malum prohibitum generally require less evidence for conviction (e.g., strict liability), but this is supposedly outweighed by lesser penalties and less social censure (e.g., fines for speeding are relatively small and do not carry the social opprobrium of murder).

Here’s the problem:  current copyright statutes don’t have the malum prohibitum “balance” built in.  While there may be lesser social censure for copyright infringement than for other crimes, it is hard to think of many non-violent crimes with higher penalties.  U.S. law assesses damages as high as $150,000 per infringing act, and there are never-ending proposals to increase penalties.  Even if such penalties seem grossly disproportionate to the underlying crimes and raise serious constitutional concerns regarding due process and punitive damages, they nonetheless are “the law” as it exists on the books.

Given the reality of enormous statutory penalties for infringement, streamlining copyright enforcement procedures could lead to disaster.  As a policy matter, it’s one thing to argue for streamlined procedures (i.e., fewer due process protections) in exchange for lower penalties.  Under certain circumstances, that can be a reasonable policy tradeoff.  But it’s a dangerous thing to argue that every content owner in the world should have a fast, easy way to sue individuals up for $150,000.  Copyright trolls like Righthaven exist even in a world with the due process protections of courts; it’s truly frightening to imagine how many new trolls will arise if the potential payoffs remain the (astronomical) same but the bar for suit is set even lower.

To be fair, iiNet appears to recognize this danger and suggests:

Infringements can be ranked as minor (say, single instances), major (say multiple instances of different files) or serious (at a commercial level). Each level having prescribed penalties….A scale of fines can be established, relative to the economic loss represented, and demerit points could also be awarded in line with the severity of the infringements.

Nonetheless, I fear that their report does not highlight just how pivotal such gradation and balancing would be to any implementation.

More follow-up: Netflix, sewage, and net neutrality

I’ve been hosting a discussion here at Legally Sociable that is turning into a long-running net neutrality debate.

To recap so far:

A.  Alan Roth, a USTelecom Senior Exec VP, wrote an article over at the Hill drawing an interesting analogy between the economics of Netflix/ISPs/home Internet users and the economics of sewage customers/municipal sewer lines/”pooled” sewage processing in the D.C. metro area.

B. I replied with a post questioning the applicability of Alan’s sewage analogy because it didn’t seem to correlate to the Netflix facts (i.e., sewage customers paid just their municipalities directly whereas Netflix customers pay both their ISPs and Netflix directly).

C.  Alan defended his application of the analogy and clarified his position, stating that he was using the analogy of sewage to highlight “the issue of equitable cost-sharing among the users of a network” and noting that “whatever you might want to say about who provides how much ‘value’ and to whom, the fact is that the data bits in question here are largely flowing in one direction, just as the sewage [flows] in one direction” toward the analogical, pooled-cost sewage processing station in D.C.

D.  I replied that we were still at an impasse because

All ISPs are providing here is a connection to the wider Internet (to the “regional front doors”). Retail customers then pay Netflix for the rest because Netflix is providing the rest. On what basis do the ISPs challenge Netflix’s contention that it “should pay only to transport its bits to a regional gateway, after which the costs of delivery to the end point would fall on others”? Doesn’t that precisely reflect how retail customers are being billed?

The only justification I can see for your position is if subsidies are involved-in other words, ISPs are somehow lowering their retail customers’ bills for Internet service because they are paid by content providers. If that’s true, however, that is very different situation from the D.C. sewage situation to which you analogize.

E.  Alan has just replied here.  Please follow the link to get the full text; however, most of Mr. Roth’s response gets reproduced below as I respond to each of his points in turn.


I sense this will probably be the final round of my exchange with Mr. Roth on this issue, so I want to begin by thanking Alan for engaging with me.  I certainly appreciate his creativity in drawing upon his experience as a member of the Board of Directors of the District of Columbia Water and Sewer Authority to help think about the economics of Internet content delivery.

In short, however, Alan and I do still (strongly) disagree.  I will take his latest points one at a time.

1) A small fraction of Internet users are consuming a huge portion of the available bandwidth on any given evening by downloading and/or streaming Netflix video content. See this article — http://www.wired.com/epicenter/2010/10/netflix-instant-accounts-for-20-percent-of-peak-u-s-bandwith-use/ — for confirmation of that phenomenon.

My analysis: Agreed — lots of people use Netflix, and that generates at lot of Internet traffic.  Alan and I don’t disagree on the facts; we disagree on the conclusions to be drawn.

I look at this situation and note that (a) home Internet users are paying their ISPs for Internet access and (b) home Internet users are (separately) paying Netflix for access.  Separate companies are providing separate services (connection and content, respectively), and they are both being paid directly by the people (home Internet users) who are consuming them.

Under these circumstances, I think it is irrelevant that 20% of Internet traffic is consumed by Netflix.  It could be 100%, and the fact would remain that home Internet users are paying ISPs for the connection and Netflix for the content.

In the real world, of course, Netflix isn’t the whole Internet.  100% of Internet activity is caused by 100% of Internet content providers — blogs, YouTube, Hulu, Skype, Netflix, and innumerable other web sites and services.  But so far as I can see, home Internet users pay 100% of their ISP’s bills for their Internet connections, and they pay 100% of their content providers’ bills for the content they enjoy, either directly (as with credit cards in the case of Netflix) or indirectly (as eyeballs for advertisers on ad-supported websites like Hulu).

If (a) ISPs maintain networks that allow home Internet users to connect to the broader Internet and (b) Netflix pays Internet content delivery networks (CDN’s) to deliver traffic right up to the “regional front doors” (where those ISP’s networks begin and the broader Internet ends) and (c) each bills customers accordingly, the fact that Netflix is 20% of Internet traffic is completely irrelevant.  What is relevant is that Alan thinks ISPs should be able to charge twice — even though Alan never really explains why Netflix should also have to pay the ISPs.

2) Enormous amounts of capital investment on the part of both ISPs and backbone providers are required to deliver that Netflix service reliably, while also providing adequate bandwidth for the other 98% of Internet users who are logged on simultaneously for their own various reasons. And as more and more users begin using their broadband connections for streaming video, satisfactory service will require even more investment. And that doesn’t even begin to take into account the huge sums needed to bring broadband to the (mostly very rural) areas of the country that are currently unserved and that presumably would like to enjoy the same online benefits that we city dwellers have.

My analysis: Alan and I also agree that enormous amounts of capital investments are necessary to run the Internet.  Again, however, home Internet users pay ISPs and Netflix pays CDNs, and the two networks meet at the “regional front doors.”  The fact that a lot of money is spent to make such networks possible doesn’t explain why ISPs should be able to charge Netflix for access to its customers any more than it would explain why Netflix should be able to seek reimbursement from ISPs for Netflix’s own CDN bills.  To my mind, what is “fair” is that each business pays its own costs.

To be sure, the economic arrangement between ISPs and Netflix could be different.  For example, ISPs could buy Netflix’s service (content and delivery to the “regional front door”) on a “wholesale” basis and then “retail” it to their customers.  ISPs could do this either as “included” with their Internet service or on an “a la carte” basis.  (Indeed, this is similar to what happens with a service that goes by the name “cable TV”:  “included” services are called “basic cable” and “a la carte” services are sometimes referred to as “premium channels”.)

While Netflix could follow such a model, that’s clearly not what they do.  Netflix has an innovative business model that competes with cable TV (and also the myriad of services vying for consumers’ entertainment dollars).  And so long as home Internet users are paying both their ISPs and Netflix directly, it seems logical to me each should only bill customers for the specific service each is providing.

Alan’s citation of the high capital costs of building the physical Internet is a true fact but an irrelevant argument.  Whether networks are expensive or not, ISPs are paid by their customers to provide connections to the broader Internet, and Netflix delivers content right to the point where the broader Internet starts.  If ISPs feel like the prices they are charging their customers don’t adequately cover their capital costs, they can change those prices.  But it eludes me why Alan thinks the ISPs somehow deserve money from Netflix.  Justifying that sort of double-dipping seems complex at best and unfair at worst.

(As for expanding service into rural areas, Mr. Roth seems to be implying that urban Internet users should be willing to subsidize rural Internet users.  We can debate that point as a separate policy matter, but it seems hardly related to the issue of whether Netflix should be paying the ISPs.)

3) Creating a sound business case for those enormous capital investments requires that someone pay for them. In my view, requiring 98% of end users to subsidize a small handful of mega-users isn’t the right way to generate those capital funds, especially when price is already one obstacle to greater broadband adoption. (About one-third of people who could access broadband now don’t take it!) Admittedly, some form of usage-based pricing might solve that problem — but based on what I’ve seen from my vantage point here in DC, you can bet that howls of protest from that tiny group of bandwidth hogs will drown out any rational discussion of what’s fair to the other 98%.

My analysis: I think Alan and I both agree that Netflix’s CEO was extremely self-serving when he stated that he didn’t want to see ISPs move to metered, per-GB Internet pricing.  It is understandable that Netflix would love people to be able to get cheap access through ISPs (a service Netflix doesn’t provide) to Netflix’s licensed content (a service Netflix does provide).  If Netflix’s customers don’t have to think about a running meter, so much the better.

But let’s not pretend that ISPs don’t also play this self-serving game.  Alan’s employer, USTelecom, is “the nation’s premier trade association representing broadband service providers, manufacturers and suppliers providing advanced applications and entertainment.”  It is in USTelecom’s members’ interest — the very ISPs we have been discussing — to charge as much as possible for Internet connectivity.  Now, there’s nothing wrong with that.  ISPs do incur “enormous capital investments”, and it only makes sense that they want to be compensated.

I think Alan’s deployment of the “fairness” argument at this juncture, however, is quite telling.  As he admits, ISP’s bills could be fair and avoid cross-user subsidies by following true usage-based pricing.  But we all know that this is not what happens.  Perhaps ISPs don’t offer usage-based pricing because market competition will not allow it (which presumably means the market is working).  Or perhaps ISPs like the current system precisely because it allows them to charge $60+/month (or higher in many markets) to individuals who barely use the Internet (which would imply that ISPs are benefiting from the fact that many home Internet users do not have a choice of ISPs).

But either way, let’s not pretend that ISPs — most of which operate under monopoly or duopoly market conditions — are avoiding usage-based pricing on the mere prospect of “howls of protest.”  If ISPs wanted to offer usage based pricing, they would.  But they apparently don’t.  Given this undeniable fact, it’s hard to see how Alan’s position in favor of the ISPs he represents is any less self-serving than Netflix’s position.

Moreover, any unfairness that exists because “98% of end users…subsidize a small handful of mega-users” is completely on the ISP side of the “regional front door”.  If ISPs want to address a perceived unfairness in pricing among their users, they can try charging more for more use.  But it’s hard to see why Netflix — on the other side of that “regional front door” — should pay money to ISPs just because the ISPs own customers don’t all consume exactly the same amount of bandwidth.

4) It isn’t just me who sees Netflix as conducting this unfair “subsidization” campaign. See this analysis too — http://www.digitalsociety.org/2011/01/netflix-lobbying-for-broadband-consumers-to-subsidize-netflix/.

My analysis: I note at the outset that Alan’s view of “subsidies” cuts both ways — he doesn’t want to “requir[e] 98% of end users to subsidize a small handful of mega-users” (point #3), but he does want “to take into account the huge sums needed to bring broadband to the (mostly very rural) areas of the country that are currently unserved and that presumably would like to enjoy the same online benefits that we city dwellers have” (point #2).

It’s perfectly understandable that Alan wants subsidies that will help USTelecom’s ISP clients and not subsidies that don’t.  But it’s a little much for him to be shocked when Netflix also wants a subsidy.  And whatever rhetorical games ISPs and Netflix are playing, the fact remains that ISPs are in the driver’s seat on Internet connection pricing.  If they think the current arrangement is unfair because “unlimited access” means some people use way more, they can change their pricing structure (see #3, above).  But again, there’s no discernible reason to pull Netflix, a third party, into this issue.

As far as the Digital Society article is concerned, I’ll let my readers look at it for themselves.  From what I can tell, this is the most relevant excerpt:

Netflix and their CDN partners want’s [sic] the government (the FCC in particular) to declare this peering negotiation as a Net Neutrality violation and force broadband providers to give away thousands of Gbps of broadband capacity for free.

I direct readers’ attention to the comment by Jeremy Stench at the bottom of the page, which is more fully explained in his linked blog post over at Packet Life:

If Comcast [an ISP] were charging Level 3 [one of Netflix’s CDN’s] for transit service [i.e., passing data through the Comcast network on the way to some other final destination], this would be business as usual, not even worth commenting on. But this situation is markedly different as Comcast is demanding payment for traffic terminating on its own network. The traffic in question ultimately must traverse Comcast’s infrastructure, regardless of who the immediate peer is. Comcast effectively is charging two parties for a single service: it wants Level 3 to pay for sending data, and its own subscribers to pay for receiving that same data.

In an ideal economy, Comcast should be able to charge what it likes. And Level 3 should be able to decline. And Comcast subscribers should be able to switch to another provider if they want to watch Netflix. Sadly, this is not the situation of Internet access in the US. For millions of residents, Comcast is their only choice for broadband Internet access. Terminating peering with Comcast would mean an inability to deliver Netflix to those millions of potential customers, and Comcast knows it. [emphasis added]

This is well said (and illustrative of the monopoly/duopoly pricing power of many broadband ISPs discussed at #3, above).

5) When Netflix has been paying $600-700 million annually to the US Postal Service to deliver DVDs through the mail, one would think they would see some value to sharing in the costs of building out that expensive broadband infrastructure by agreeing to share in a fair proportion of the costs their own service is imposing. But instead, they seem to want to offload all those costs onto the 98% of consumers who AREN’T using their services, as the same time as they work on getting out of the mail delivery business — thereby saving themselves hundreds of millions of dollars each year.

My analysis: Of all Alan’s points, this seems the flimsiest.  Other than the subsidy issues already discussed above, Alan’s argument reduces to the mere assertion that (a) because Netflix used to pay the USPS a lot of money to mail DVD’s (“$600-700 million annually”), (b) Netflix should have to pay ISPs a lot of money to deliver those movies digitally (rather than the ~$35 million they actually pay to CDN’s like Level3, according to the Digital Society article).

First, this is misleading.  Netflix may only pay $35 million to its CDN’s to deliver content to those “regional front doors”, but Netflix’s 20 million+ customers pay their ISPs hundreds of millions (if not billions) of dollars for Internet service (which, in practice, means a connection to those “regional front doors”).

Second, why a company’s previous cost structure is relevant to its current business model escapes me.  Netflix’s prior, significant expenses in using the postal service to send DVD’s by mail seems as irrelevant as it would be for FedEx to argue that L. L. Bean should pay more to ship its packages than Amazon.com because L. L. Bean was founded in 1912 (when shipping was more difficult and expensive) and Amazon.com was founded in 1994 (when shipping was relatively cheaper).  It’s hard to see the logic in that.

[6] Joel, it seems you and I should be able to agree on the end result we both want — a strong, robust, and high-capacity broadband infrastructure that serves everyone’s needs. But instead of working to figure out how best to get there, we find ourselves arguing about a subsidiary question that reminds me of that famous dialogue from an old Marx Brothers film, where Groucho finds himself negotiating with a beautiful woman over how they might spend the night together:

Groucho: Would you sleep with me for a million dollars?

Pretty lady (laughing): Of course I would!

Groucho: Would you sleep with me for $10?

Pretty lady: Certainly not! What do you take me for?

Groucho: We’ve already established that. Now we’re just haggling over the price.

My analysis: Yes, of course, price is all Alan and I have been arguing about.  It would be disingenuous to suggest otherwise.  Alan argues that Netflix should pay some (unspecified) amount to ISPs in addition to what ISP’s customers pay; I have been arguing that ISPs should not be able to double-dip.

At this point, I will let our respective arguments speak for themselves.