Response to Ofcom consultation on net neutrality

Having been privileged to attend a joint POLIS and Communications Consumer Panel workshop on net neutrality earlier in the week at the LSE (Chatham House rules), I've carved out a couple of hours today to respond to Ofcom's consultation on traffic management and 'net neutrality'.  It was done quickly this morning in between ticking boxes on forms for anxious administrators, so it's not a particularly comprehensive response but I've copied it below for those who might be interested. It's odd the way the 'Additional comments' were arranged at the start of the form but fwiw my additional comments were done after addressing the 11 questions. Feedback on critical errors/omissions welcome.

Additional comments:

Although I have responded to all the questions in the consultation it doesn't seem as if I've even scratched the suface of the complexities involved in this issue. So there were just a number of extra short points I would wish to make.
Firstly for anyone involved in net neutrality policy, Chris Marsden's book, Net Neutrality: Towards a Co-regulatory Solution, is essential reading. It is a coherent book-length argument about a generic regulatory approach to net neutrality which encompasses many of the nuances and complexities of the subject matter it is impossible to include in a short consultation response.
Secondly I am concerned at the degree to which standard terms like 'consumer', 'competition' and 'transparency' often get misunderstood, unintentionally mislead and obscure some of the complexities underlying the whole area of net neutrality. Achieving transparency or consumer satisfaction can often be seen as ends in themselves in the debate; when they can't come anywhere close to addressing the wider needs society or the marketplace might have in relation to the Net. In an information society, the default rules of the road are the information laws and the architectures of our information technologies and networks. That makes network operators potentially the key chokepoints for the implementation, operation and some would argue (though I would fundamentally disagree) policing and enforcement of those information rules of the road. So the debate is much more important than whether BT or TalkTalk can provide cheaper and transparent access to a 'consumer' to the same local loop.
So instead of terms like 'consumer' which can hide a huge range of varying stakeholder interests we should probably use terms like 'net users' which more clearly imply a range of stakeholders which spans the spectrum of consumers, citizens, creators, artists, innovators, businesses etc. - the whole gamut of the economy and society.
Likewise the use of words like 'competition' or 'competitive' also more often confuse rather than enlighten the debate as these words come with certain underlying assumptions and hide a raft of complexity under the surface. For example the UK broadband market (fixed and wireless) is considered competitive but what does that really mean? A ‘consumer’ can choose one of a range of ISPs who control the switch at their local exchange or alternatively a hybrid cable operator like Virgin, (if Virgin happens to have cable in that locality). So in reality the net services are still travelling down the same potentially noisy unreliable ISDN line whichever ISP the customer is paying; and switching in practice, if someone can brave that particular minefield (I have and it was painful), may have very little effect on quality of service. Regardless of the ISP claiming ‘up to 10M’ if you’re 2 miles from the exchange the best you’ll get on that line with any of the ISPs controlling the switch in the exchange is 3M. One of the assumptions flowing from the idea that the market is competitive is that consumers will make informed choices – a big assumption. Another big assumption, in a supposedly competitive market, is that incumbent suppliers will have an incentive to invest in high speed infrastructure to generate a competitive advantage. But the kind of competition we have in the UK is demonstably not leading to universal superfast infrastructure construction. And we cannot blame the network operators for engaging in rational economic actor behaviour in this respect, as David Isenberg and David Weinberger explain in The Paradox of the Best Network, http://netparadox.com/ Fundamentally it is too risky for a network operator to invest large amounts of capital in infrastructure if they are not going to be able to gaurantee they have control of that infrastructure in a way that will facilitate a reasonably rapid payback period and a significant and durable return on investment and operations.
Thirdly that issue of the construction of super fast broadband infrastructure is a key one. There is a serious need for private and public sector investment in broadband infrastructure (PPP?). Yes the UK is in debt and yes the government is making serious cuts but there is an argument to be made that in times of economic duress, (according to John Maynard Keynes in 'General Theory of Employment Interest and Money'), that is precisely the time we should be investing in further economic and society enhancing infrastructure. In simple terms, paying one person to dig a hole, another to stick fiber optic cable in it and yet another to fill it in could be one way to help the economy out of recession.
Finally, we should be looking, as a matter of policy principle, at guaranteeing, in the long term, universal access to an open or neutral internet. Internet access, in the UK, is a fundamental part of access to education, essential services, employment, business operations, as well as simple entertainment or online retailing. The regulatory principles governing the internet therefore become crucial to the future of our society and economy in ways that we would not have conceived of a mere 20 years ago. Given its importance now, though, the key priorities for the regulator and for government should be
1) in creating (and investing in) an environment that will create incentives for the contruction of a superfast broadband infrastructure and
2) in ensuring that there is universal access to via that infrastructure to an open or neutral internet.

Question 1: How enduring do you think congestion problems are likely to be on different networks and for different players?:

Until we can cut the gordian knot on large scale investment - from the public and private sectors - in universal super fast broadband infrastructure, congestion problems are going to be ever present and increasing. The network is already sustaining more users that it was built for and those users effective demand for the facility of infinite bandwidth and zero latency is growing.

Question 2: What do you think are possible incentives for potentially unfair discrimination?:

If the architecture of the network is such that discrimination is possible then discrimination will happen.
The fundamental incentive for discrimination, in this context, is the bottom line of the network operators. If network operators are considered to be rational economic actors then traffic that provides a decent proportionate return on costs will be favoured and traffic which shows insufficient financial returns or has a negative impact on the operators business will be discriminated against.
So, for example, the incentive will be to discriminate against high volume peer to peer traffic, competitors traffic where that can be identified as is possible with increasingly 'intelligent' networks, audio/video/gaming/VoIP on demand, high congestion inducing traffic of various kinds (e.g. high bandwidth, zero latency), and Net users engaging in communications which the network operator might disapprove off. This latter traffic spans the spectrum from nefarious criminal and cybervandalism activities at one end of the scale to legitimate political and other speech (e.g. perhaps simple criticism of telcos) at the other end of the scale. There is evidence from the US that some filter software companies, for example, blocked websites that were critical of filter software. (See for example Wallace, J and Mangan, M. (1997) Sex Laws and Cyberspace: Freedom and Censorship on the Frontiers of the Online Revolution. Henry Holt and Company, New York. Also http://www.peacefire.org/censorware/ and http://sethf.com/anticensorware/
In addition there are obvious incentives for network operators to provide priority to traffic from partner/contractually linked organisations.

Question 3: Can you provide any evidence of economic and or consumer value generated by traffic management? :

No. There is a dearth of research on this and hence little or no empirical evidence.
Network operators in the UK suggest they make best efforts attempts to evenly manage traffic flows during periods of high congestion.

Question 4: Conversely, do you think that unconstrained traffic management has the potential for (or is already causing) consumer/citizen harm? Please include any relevant evidence. :

As per Q3 empirical evidence is thin on the ground which, given the net neutrality debate has been going on for so long, and despite the fact that the gathering and analysis of such evidence is a significantly non trivial task, is a bit of an indictment of all the major stakeholders.
Has unconstrained traffic management the potential for consumer/citizen/user harm? Yes. How and what kinds of harm? See my answer to Q2 above.

Question 5: Can you provide any evidence that allowing traffic management has a negative impact on innovation? :

As per Q3 above there is a desperate need for robust research on this and little or no empirical evidence at the moment. It could be presumed that innovations that might be perceived to threaten network operators' positions then the network operators will act to inhibit that innovation.
As Jack Osterman of AT&T said in the 1960s regarding Paul Baran's packet switching ideas: "First it can't possibly work, and if it did, damned if we are going to allow the creation of a competitor to ourselves."
So direct empirical evidence that traffic management will have a negative impact on innovation is in short supply. There is evidence across a range of sectors , however, (see for example, Clayton, C. (1997) The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail, Harvard Business School Press, Boston. Also Jaffe, A and Lerner, J. (2006) Innovation and Its Discontents, Princeton University Press, New Jersey, Oxford. that incumbents will act to protect their market position from competition and new entrants.
And whilst I don't really wish to focus on or particularly criticise AT&T, the Hush a Phone case (Hush-A-Phone v. United States, 238 F.2d 266 (DC Cir. 1956)) is the classic illustration in the telecoms sector that even when an innovator provides no threat to the incumbent monopoly that incumbent may well be prepared to act in a way that crushes innovation.

Question 6: Ofcom’s preliminary view is that there is currently insufficient evidence to justify ex ante regulation to prohibit certain forms of traffic management. Are you aware of evidence that supports or contradicts this view? :

Care is required here. Lack of evidence of harm is not the same as evidence of of lack of harm. In addition, the difficulty in measuring market/consumer/citizen/net user/societal harm, in ways that will provide valuable insights, is potentially intractable.
Much of the focus of this consultation is in calling for evidence to provide guidance on how to move forward on the regulation of net neutrality and traffic management. Whilst that is an admirable approach - I'm all for evidence based policymaking, somehting which seems all too rare in recent times - there is a remarkable lack of hard empirical evidence to guide policy on net neutrality. That tells us two things. Firstly we should be investing quickly in much more empirical research to inform policy. Secondly we should be making policy decisions only at a general principle level - e.g. an overriding principle to guarantee an open network for example - until we have gathered sufficient robust evidence to inform more detailed policy decisions.

Question 7: Ofcom’s preliminary view is that more should be done to increase consumer transparency around traffic management. Do you think doing so would sufficiently address any potential concerns and why?:

Transparency on traffic management is never going to be enough on its own. Understanding their internet connection is being throttled during times of congestion does not give the internet user the power or the tools to do anything about it, particularly if there is no open network alternative available at a reasonable cost.
The passage of the Digital Economy Act was arguably transparent - people could follow the debate in parliament and write to their MPs objecting to it - and more than 20,000 people did, but it still got rushed through in the wash up of legislation before the general election. Tens of thousands could see what was happening, objected to it, but ultimately could not do anything about it.

Question 8: Are you aware of any evidence that sheds light on peoples’ ability to understand and act upon information they are given regarding traffic management?:

No. Again evidence is in short supply. There is evidence, however, of the ability of people to understand complex data sets if they are presented in a suffiently accessible way. See Tufte, E. (2004) The Visual Display of Quantative
Information 2nd Ed. Graphics Press, Cheshire.
The facility to act on that information is dependent on having access to an effective range of affordable competitive options including network operators who offer a neutral (or open) network facility, something not currently available in the UK (despite the fact that the UK is perceived as having a 'competitive' market)

Question 9: How can information on traffic management be presented so that it is accessible and meaningful to consumers, both in understanding any restrictions on their existing offering, and in choosing between rival offerings? Can you give examples of useful approaches to informing consumers about complex issues, including from other sectors?:

The best examples I know on explaining complex data/issues in an accessible way are Edward Tufte's range of work 'The Visual Display of Quantative
Information', 'Envisioning Information', 'Visual Explanations: Quantities, Evidence and Narrative'.
Also Hans Rosling's work with Gapminder.

Question 10: How can compliance with transparency obligations best be verified?:

Assessment of published documents pertaining to network operators' claimed operating procedures is relatively straightforward. Actually ensuring operators are following the letter and the spirit of their own publicly available procedures is more difficult. Measurement of actual operations and net user harm is complex and the temptation would be for an independent auditor (Ofcom?) to measure metrics which are easy to measure rather than those that provide truly informative indicators of sector practice.

Question 11: Under what circumstances do you think the imposition of a minimum quality of service would be appropriate and why? :

When we have built a universal superfast broadband infrastructure.
Until then minimum QoS will have to be so low as to be useless or a minimum standard that network operators can't meet in practice during congested periods, unless specific forms of traffic are allocated regulatory priority which is probably unrealistic.
It is possible that until we can get a decent usniversal broadband infrastructure in place it may be incumbent on the regulator to find some way of gauranteeing minimum QoS in relation to the operation of and access to essential services. But how that might be done in practice is a difficult question to answer.

Now I better get back to that overdue form filling...