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Friday, January 29, 2010

'Net neutrality: towards a co-regulatory solution' released by Bloomsbury

Its on a Creative Commons download- and the Preface thanks all of you as readers, and many of you by name - so thank you:-) 
If you enjoy reading the bits you print or read onscreen, there is an introductory offer on the hardback, either contact me or look on the Bloomsbury website.
Happy reading - I will post the gentler or most revelatory reviews and link obscurely to the rest...
STOP PRESS: if you wait to download until Monday, you can get the cover and see it in all its glory.

Thursday, January 28, 2010

BEREC formed - European FCC draws no closer?

The new super-souped-up European Regulators Group is founded today - with a name so preposterously badly chosen that its alternates BERT and GERT sound better every day...its called BEREC (B-Erik?) and its been welcomed by Ofcom for reasons that are clear - better the B-Eriks than letting the European Commission take executive control. In the future the European Commission will be required to seek BEREC's advice and take 'utmost account' of its guidance in making its own recommendations in the telecoms sector.It will have up to 28 Eurocrats staffing it alongside the 27 NRA chiefs so expect a delicious fudge, though its agenda items are very substantive:

Functional separation: establishing competitive telecoms markets by creating operationally separate businesses for local and backhaul network access."
But don't get too excited, here's what it says about net neutrality and its reactive position:
"During 2010, the debate on enhancing net neutrality is likely to develop further. The revision to the regulatory framework will make important revisions to strengthen requirements in this area. ERG will contribute to this debate and examine issues which fall within the scope of the electronic communications regulatory framework. In particular, ERG will work with the Commission and provide input to any measures or communication which will be developed by the Commission including a formal opinion in response to public documents issued by the Commission."
"Deliverable: ERG Opinion on Commission communication. Deadline: Depending on Commission initiatives"

Tuesday, January 26, 2010

Reding v. Kroes, round one

Viviane Reding may be on her way out of DG Info Society, but it seems like she'll be bringing along some pet projects to her new Fundamental Rights Directorate. EurActiv reports today that Reding's personal priority will be updating the outdated Data Protection Directive, and sources close to Reding insinuate that her focus shall be on online privacy. Never mind that much of online privacy is being dealt with in the ePrivacy Directive, for which Reding's former Directorate is responsible.

Not coincidentally, Reding and the new commissioner at Information Society—Neelie Kroes—reportedly do not get along well. The heated debate between Kroes and Reding over functional separation of telecom operators of 2007 most clearly testified to their icy relationship.

So is a turf war to follow? Reding's approach seems to suggest that she already fired the first shot. After all, while she stresses that the Data Protection Directive has not been revised in 15 years, she does nowhere mention the 'particularizing and complementing' role of the ePrivacy Directive alongside the Data Protection laws. Moreover, the ePrivacy Directive has officially been revised only a month ago—which took place under Reding's watch.

I'm curious to see if and how Neelie Kroes will respond. Only then it can be determined whether we've got a fight on our hands...

Friday, January 22, 2010

Clinton speech - what it didn't say

Hillary is rather caught between her own spooks' need to snoop on her citizens (and everyone else in the world) and the old 'fr'dom' chant of George Dubya - she freely admits this is his policy initiative:
'All societies recognize that free expression has its limits. We do not tolerate those who incite others to violence, such as the agents of al Qaeda who are - at this moment - using the internet to promote the mass murder of innocent people. And hate speech that targets individuals on the basis of their ethnicity, gender, or sexual orientation is reprehensible...We must also grapple with the issue of anonymous speech. Those who use the internet to recruit terrorists or distribute stolen intellectual property cannot divorce their online actions from their real world identities. [But] these challenges must [not] be[come] an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes.' (My punctuation).
So do we want the home of the NSA, the Patriot (sic) Act and most of the surveillance-intelligence complex lecturing the rest of us on free speech while licensing the flogging of blade servers and other DPI kit to friends, Romans and Chinamen? Its a point made robustly by Rebecca McKinnon and Ian Brown, who points out the nasties perpetrated by Yahoo! and Microsoft back in the day. To which we can add of course Mr Murdoch, an unambiguous threat to free speech in China based on past history.

Thursday, January 21, 2010

Clinton on censorship and Google/China - lessons for net neutrality?

As the Google-China thing rumbles on, and we ignore China's claims that it co-regulates via ISPs to stamp down on porn, hate speech, religious extremists and security breaches, Hillary Clinton has weighed in with a speech asking why the rest of the world can't be more First Amendment friendly, conflating commercial with political censorship. '"Countries that censor news and information must recognize that, from an economic standpoint, there is no distinction between censoring political speech and commercial speech. If businesses in your nation are denied access to either type of information, it will inevitably reduce growth. Increasingly, U.S. companies are making the issue of information freedom a greater consideration in their business decisions. I hope that their competitors and foreign governments will pay close attention to this trend."
National sovereignty has some role to play, surely, on the Internet - after all, the US with its traditional hypocrisy hounded offshore gambling firms and recently jailed a foreign executive who just happened to be swinging through the US in transit (and of course hosts much spam and kiddie porn that plagues users). Much as we might agree with her preaching, if not US practice, does this mean net neutrality becomes a foreign policy issue for USTR, as suggested by Andrew McLaughlin? No, thought not, empty gesture politics so far!
It'll be good to see the European Commission hammer the US in front of the WTO on its disgraceful illegal activities in trying to persecute offshore gambling - if the EC has got the stones to carry through an obvious case.

Wednesday, January 20, 2010

UK 3 Strikes: Goldilocks and the 3 bears

A draft Code of Conduct for ISPs and copyright holders (thanks for the link to IPTegrity) has been issued by the government departments responsible for its implementation, and its suggestions illustrate the fairytale dilemma facing industry. How do you persuade subscribers to do the right thing, without either putting the fear of God into them and getting a thousand appeals set in motion by civil rights groups, or putting in so many checks and balances that it amounts to a free pardon? How can the porridge be not too hot and not too cold, and the beds not too hard and not too soft? Frankly its clear that its not possible to strike the right tone. 
The draft Code note sets out the problem: 'The consideration for the code would be to strike a balance. Setting the trigger levels too high would decrease the credibility of action and in effect give infringers x amount of free content. Setting the level too low would result in far more “final warnings” which we anticipate would generate excessive numbers of costly appeals. Ironically this too would reduce the deterrent as we only expect copyright owners to take civil action against the most damaging of infringers and we would then have the situation of large numbers of subscribers receiving final warnings who then had no further action against them.'

Amazon and net neutrality lite: old idea, new reaction?

The blogosphere seems ablaze with Amazon's suggestion that QoS priority services could be allowed on the Internet subject to non-interference with regular traffic. Now leaving aside the fact that priority means some investment is for private traffic not the public Internet, meaning compromises not absolutes, what is new about Amazon net neutrality? Its net neutrality lite - some protections for universal Internet service but permitting private investment.
Paul Misener said the same thing - for what may have been the first time - at George Mason University in September 2006 - 40 months ago. Does anyone know of an earlier statement of the same?
P.S. Ken Carter has posted his paper (in Japanese) comparing net neutrality to samurai-first rules on Japanese public roads 300 years ago. His point was that its about socio-economic policy priorities - my response would be that I prefer the British common carriage rules that the US inherited back then!

Tuesday, January 19, 2010

European Commission delayed until March - Kroes safe?

The withdrawal of a dodgy Bulgarian candidate means that the Parliament will not ratify a new Commission until 9 February at the earliest - and that means new Commissioners will not take office until early March. Easter is a long weekend at the end of March so don't expect much out of Brussels before April.
Meanwhile, I didn't blog about Nellie Kroes' under-preparation and apparent competition economics-based anti-intervention bias at her public hearing last week (listen from about 55mins in) - I am guessing she's still thinking as Competition Commissioner as the busiest of all Commissioners, and just under-prepared and did not anticipate an ambush.
She did make a fairly important statement about VoIP blocking and other net neutrality concerns, and we'll see whether that provides her with political capital to shake up the mobile sector. She said that ISPs "shouldn't be allowed to limit the access to service or content out of commercial motivation, but only in cases of security issues and spamming".

Friday, January 15, 2010

FCC, transparency and net neutrality: content providers' perspective

The excellent Shane Greenstein gave a PPT at the FCC workshop at MIT Wednesday, and made the rather vital point that if ISPs are increasingly changing their carriage conditions unilaterally by interfering with different apps' QoS, then that is a complete game-changer for the innumerable app developers out there - as he puts it, Comcast could be 'the canary in the goldmine'. See further:

Thursday, January 14, 2010

Talk: Media@McGill at 4.30pm

Final reminder that I'll be speaking in Montreal at 4.30pm, all welcome if you're in the area, on 'Medium law and net neutrality', explaining some of the pre-history behind the debate from the 1990s and earlier, as well as expanding on the opening chapter in the book, due out a week on Monday (updates to follow).

Saturday, January 09, 2010

Pyrrhic victory for Comcast? FCC to formalise net rules

It seems from all educated commentators that the FCC v. Comcast case is likely to decide that the 2003/5 'Four Freedoms' were motherhood and apple pie but not regulatory jurisdiction to decide on net neutrality. That will leave about a month of abeyance before the FCC formally rules that the new 'Super Six' rules should apply.
Claims that the White House is going soft on neutrality seem to be wishful hot air.
Who said its the lawyers who always win in Washington?

Friday, January 08, 2010

Commissioner Kroes: nothing new to add on net neutrality yet

As part of her confirmation hearing, the Commissioner supplies an advance questionnaire on her main priorities to the European Parliament. There is nothing new in it, and she says this about net neutrality, while making clear that universal service will be a major legislative plank in 2010:

"iii. Developing Policy for a Digital Citizenship
I will pay special attention to Europe's contribution to producing high-quality open ICT standards. In addition, the Commission will be reporting on the European Parliament and the Council of Ministers before the end of 2010 on the issue of net neutrality, taking as a starting point the new provisions of the Telecoms Package."
She has hearings next week, then confirmation follows in short order. Frozen officials in Brussels will already be preparing for BEREC and their agenda. Of course, she is still busy on issues such as Kraft/Cadbury in her current portfolio, and her blog has gone quiet.....wonder if she skates?

Thursday, January 07, 2010

UK Government consults on NGA FTTC access

As you'll all know by now, the UK government's 'flagship' (sic) regressive 50p/line tax on fixed telecoms (i.e. BT lines) is forecast to raise £1billion by 2017 - and it now wants to know how to spend the money. I'd have thought there are four principles:
1. not to cross-subsidise mobile any more - so the money must go back into BT's network and other fixed telecoms.
2. to ensure it doesn't interfere with commercial roll-out, so it should be in places where there is not the slightest possibility of BT actually rolling out VDSL, i.e. where loop lengths and other factors make it impossible to achieve speeds over 50Mbps.
3. not to fund second home owners, lairds of the manor and far-flung farms (they can use satellite, on a case-by-case subsidy basis if necessary) in remote locations, but actual communities.
4. I would suggest that means the fourth is that such connectivity be shared as widely and freely as possible inside the community via local WiFi-sharing and microwave from the link. Of course, that might involve, shock horror, some anonymous file-sharing slips through the net, so UKGov is planning to outlaw that in their ludicrous Digital Economy Bill.
P.S. A warning from history: remember a decade ago, the predictions that ADSL could not reach 99% of the country (and ISDN 5-7 years before that?), and the villages having to club together to persuade BT to upgrade their exchange. That proved that there was demand for basic broadband - I bet the same happens to NGA so that BT's '40% by 2012' and the NGA Fund's '90%+ by 2017' are only separated by the bureaucratic waste of collecting this tax from Bt customers and then giving it back via the's a snippet from 2 November 1999:
David Harrington, director general of the Telecoms Managers Association (TMA) emailed saying: "If ecommerce is to roll-out across the UK we must have universal broadband access. Oftel must take urgent action to consider and upgrade the basic Universal Service Obligation on the dominant operator (defined as basic, affordable, analogue voice) to provide affordable broadband of at least 2Mbps to every customer who requests it."

More on Dutch Broadband

/*updated after comments*/

To continue the string of Dutch broadband news: the most traditional Dutch consumer rights organization (Consumentenbond) is fast developing into a digital rights advocacy group. After the day before yesterday's bombshell that Dutch DSL ISPs come nowhere near the advertised download speeds, Consumentenbond has started targeting switching costs.

In a press release circulated yesterday, the consumer rights group presents its own research on the difficulties consumers run into when switching ISPs. The results of the qualitative study that Consumentenbond has run confirms anecdotal evidence that many of us are familiar with: close to 35% of the respondents reported being cut off the Internet from one to over five days when switching. Switching between DSL providers resulted in the longest interruptions. Moreover, 64% of respondents had no idea that ISPs had 'switching services' in place that should make switching easy.

These switching services were the result of a self-regulatory agreement between the ISPs and the Ministry of Economic affairs in 2008. This agreement also stated that switching ISPs for 95% of consumers should not lead to interruptions of Internet connectivity for more than 24 hours. This promise was clearly not met. The Ministry has already signaled its annoyance with the ISPs' behavior.

Personally, I'm pleased and somewhat surprised that Consumentenbond is being so vocal on Internet matters. My perception of this organization—illustrated by the life-long membership of my grandparents—is a somewhat dull and leftish consumer union in the business of testing vacuum cleaners. Consumentenbond seems to be renewing itself into an all-round public interest group fit for this day and age, which is to be applauded. Wonder what they come up with next.

Wednesday, January 06, 2010

Collusion between cable and DSL - the love that dare not speak its name?

Its always close to impossible to demonstrate collusion in mobile or fixed broadband markets - operators trot out the old line that its a dynamic marketplace, lots of potential entrants, even if entry barriers to wholesale are impossibly high and its only tinkering around the retail margin (see Tele2 for an example of a well-run entrant ruthlessly keeping costs down and chasing market share in mobile and VDSL).
The last two days have left me pondering that regulatory analysts are not as dumb as competition economists might hope - an excellent post by Rudolf on the Netherlands market and the cable-DSL standoff that may result, much as BT and Virgin are doing the same in the UK. Its very low-grade competition - no-one aiming a knock-out blow, rather like the Haye-Valuev fight for those pugilistic science aficianados amongst you.
Even more significant is the intervention by Larry Strickling, boss of the US NTIA, the brains behind their broadband plans - who argues publicly that as mobile 4G is unlikely ever to offer real price-feature competition that will substitute for cable-DSL duopoly, that the US should be thinking much more aggressively in opening to feature competition:
"locally, where residential consumers make their purchasing decisions, they frequently have limited, and often no, choice among broadband Internet access service providers".
Better results through unbundling has echoes from the 2009 Harvard report on broadband, and European policy over the past decade.
Will this led the EC Cartel Taskforce to leap into action? Not a hope, as Rudolf states: "KPN said it was happy where it was and the other two said the same. This is not collusion in the: Yoohoo, send in the European Commission and the anti-cartel police kind of way, but the effect is the same and much harder too prove. "
But its always nice to remind ourselves that the 'competitive markets' emperor is freezing his butt off.

Tuesday, January 05, 2010

Welcome to Jasper - and watch the Netherlands on net neutrality!

I'm particularly glad to welcome Jasper onto the blog - not just because he's a very smart guy, but also because he really understands the economic, technical and legal policy issues around net neutrality in both the US and Europe. As we move towards the vital technical details of regulatory proceedings in the US, Canada and European Commission, its essential that we begin to grapple with the details and their wider implications.
Of course, being from a proper broadband country (unlike me in Cambridge), he'll have connectivity as well...which is nice...and understand some of the politics of new Commissioner Nellie Kroes.
Welcome aboard Jasper!
P.S. We continue to encourage comments, suggestions and other input from readers. We're now at 7,000 visitors so do feel free to contribute as well as read.

A New Face

When Chris approached me to join this blog as a co-author, I was happy to accept. There are few people around with a truly interdisciplinary and international perspective on net neutrality, and Chris is definitely one of them. I'm honored to contribute.

About myself: I'm currently a PhD candidate at Tilburg Law and Economics Center in the Netherlands, where I'm supervised by Pierre Larouche. Before continuing my studies in Europe I spent some time in the US where I first started working on network neutrality issues. I was a research fellow at media reform organization Free Press during the culmination of the Comcast case, and joined the University of Pennsylvania afterwards to build on my experiences in Washington, DC. Feel free to read up on me here.

My PhD research investigates the necessity for net neutrality regulation in European Law, and the first Article of my thesis is about to be published in the Federal Communications Law Journal. I am currently working on the feasibility of transparency requirements for network management to safeguard network neutrality principles.

I'm happy to share my ideas on this blog, and look forward to discussing net neutrality with you here.

Sunday, January 03, 2010

Digital Economy Bill - watch Don Quixote live!

The Bill will grind through Committee beginning 6 January and its parliamentary page is regularly updated.
Is it my suspicion, or do we assume a March UK election will not happen at least in tiny part because this Bill will occupy the Lord Mandelson at least until late February when he kicks it out to the Commons? It cannot make it to the statute book before April at the earliest.

'Three Strikes' strikes...French law in April Fool's delay

HADOPI should be now in operation, and a board member thinks that 95% of users will stop detectable downloading of copyrighted material after their first 2 letters - i.e. before they are cut off. Its reminiscent of the child porn debate, where the UK ISPs in the Internet Watch Foundation prevented almost all kiddie porn hosted in unencrypted WWW formats on UK servers - but horrors presumably persist on non-UK and encrypted formats.
Europe is of course home to the legend of Don Quixote. The UK parliament is presently debating its new Anti-Digital Windmill Bill...
Michael Geist's blog points to reports that the latest act in the HADOPI tragi-comedy is a further potential 3-month delay (translated from French report):
'Rebound in the last act of the tragi-comedy Hadopi... the National Commission on Informatics and Liberties (CNIL) must give its opinion on any of these decrees... However, December 10, the CNIL decided not to give an opinion, and has sent a letter to that effect. [...]'
'The other option - apparently the most likely - is not to declare war on the CNIL, but to bow to its demands by sending it the draft decree on the procedure. This other text being finalized, could be subject to consultation in January. CNIL will then have two months to give its opinion... Ultimately, the first e-mail warning would be sent to users as early as April. When questioned, the CNIL has confirmed that it had requested access to the decree "procedure".'
Suspicions are raised that Sarkozy doesn't want a HADOPI in the media before the municipal elections in April - a cease-and-desist letter campaign might annoy a lot of parents who are voters...note the UK law also would not take effect until after the General Election.