My Amicus Brief in the Open Internet Challenge

I filed a brief with the DC Circuit Court today challenging the FCC’s Open Internet Order. This is the first such brief I’ve filed, and I was motivated by the fact that the order is hopelessly out-of-touch with the way the Internet actually works today and the way it must work in the future for users and entrepreneurs to get its full benefit. I made the following points:

* Without even looking too deeply into the structures of the Internet and the Communications Act, it’s starkly obvious that the Internet lives in the Information Service space. The Internet is a virtual, software-based network, not simply a physical network designed to support a single application as the telephone network is. While there is a transmission function in the Internet – as there is in any network – this function is not uniform, has never been uniform, and should never be uniform.

The essence of the Internet is the ability of networks to interconnect despite the fact that they may be based on different technologies and operated under different policies. Just as the Internet separates TCP/IP from DSL, cable modem, and wireless, the Communications Act separates Information Service from telecom, cable, and mobile networks. The Internet is an Information Service and it’s not even a close call.

* The particular technical functions performed by ISPs are more Information Processing than simple transmission. When we look inside the major tasks performed by ISPs (bandwidth allocation, security and attack mitigation, DNS, and routing) we see intense information processing going on that’s several orders of magnitude more complex than the tasks that enable the telephone network to support its one and only application, voice calls and data streams that look like voice calls.  The nature of these tasks has no real parallel in the telecommunications world, but plenty of parallels in Information Services.

* Ironically, the FCC’s insistence on stuffing the Internet (or “access to the Internet” because there’s no meaningful difference between limiting the services ISPs can offer and what the Internet can do overall) into the telecom box has the immediate implication of making it practically impossible for the Internet to replace the telephone network. The telephone network’s hallmark feature is Quality of Service. You don’t get as much bandwidth as you want from the telephone network, but what you do get is predictable, constant, and reliable. This is why most of the time Skype is more clear than a phone call while sometimes it doesn’t work at all. I’d like to fix that.

The Internet is a statistical free-for-all that only gives you and opportunity to communicate, but the telephone network gives you certainty. The features that allow the Internet to push the telephone network aside have been in the Internet since the mid-90s (they’re called Integrated Services and Differentiated Services), but the FCC’s broad ban on throttling and paid prioritization denies entrepreneurs access to them. This is very good for ISPs because it puts them in a privileged position for voice, video conferencing, and video streaming, but it’s bad for the innovation economy.

The FCC’s order is an example of a bungling regulator achieving exactly the opposite effect from the one it set out to cause by failing to understand the subject matter. The Internet is capable of being much, much more than it has ever been, but the FCC’s ham-fisted regulatory model will actually cause it to be much less than it is today.