I am seeing in a few places such as App Rising and Slashdot that Fairpoint is planing to force subscribers to use its webmail portal even if they get Yahoo, MSN, or AOL email. This would, of course, be a major violation of the FCC's “Four Freedoms” by preventing users from accessing the legal content or services they want to access. Which makes me somewhat skeptical that this is actually what Fairpoint intends.

For those just tuning in, Fairpoint acquired most of Verizon's high-cost rural systems in Maine, NH and VT. Leaving aside the underlying logic and value of the deal to the various parties and local subscribers, the critical point is that Fairpoint will complete its take over of these systems and cease operating them as part of the VZ network on January 31, 2009.

What started the current rumor about Fairpoint's plans is this article in the Rutlan, VT Herald detailing changes for local subscribers. In particular, the article notes that as a result of the change, users will get Fairpoint.net addresses rather than Verizon.net addresses, and will need to reconfigure their mail clients to pull mail from Fairpoint rather than VZ. Then comes this quote:

Web-based e-mail users can continue to access their e-mail at the Verizon Web site until Feb. 6. After that date, Fastiggi said users will need to log on to www.MyFairPoint.net. Customers then click on Web mail and type in their existing user name@myfairpoint.net and existing password.

AOL, Yahoo! and MSN subscribers will continue to have access to content but will no longer be able to access their e-mail through the third party Web site. Instead, Yahoo! and other third party e-mail will be accessed directly at the MyFairPoint.net portal.

Most folks are reading this as saying that Fairpoint plans to require all users of these services to use the Fairpoint mail portal. But I notice that these are all companies that have various sorts of co-branding agreements with Verizon. This suggests a different interpretation.

Right now, as I understand it, if you are a Verizon-Yahoo customer (or other third party customer) than you have certain access privileges that integrate email to either Verizon or the third-party email service seemlessly. Our VZ-Yahoo customer logs into mail at either VZ or Yahoo's portal and sees all mail addressed either to xxxx@verizon.net or xxxx@yahoo.com. I should stress that as I am not a VZ subscriber, I am not entirely clear on the details. But it boils down to the fact that VZ has negotiated certain application deals to make itself more attractive and that these deals are seemless to the subscriber. Fairpoint, obviously, does not have these thrid party deals.

What I think the article is trying to say is that whetver special value-add services you got from being a VZ-AOL or VZ-MSN or VZ-Yahoo subscriber, these disappear when Fairpoint takes over on January 31. Rather than have an integrated mail platform for both email addresses, you will need to go to AOL.com and go to their mail portal, which will provide only the mail addressed to xxx@aol.com, and go to the Fairpoint web portal separately to get your email addressed to xxxx@fairpoint.net. But Fairpoint is not planing on interfering with you going to AOL.com and using their website to read your email.

This explanation would make much more sense than the idea that Fairpoint will force you to read any third party email through the Fairpoint web portal. For one thing, it really doesn't make sense to force all email users to give up their web-based third party emails to use Fairpoint. Nor does it make sense that they would give you access to the entire third party website except their email portal. They could, but why do it? Finally, given what happened to Comcast when they interfered with applications in a much more subtle way that was arguably linked to network management, I can't imagine what would prompt Fairpoint to court an FCC complaint — especially when state regulators had previously voiced concern about Fairpoint's ability to provide broadband service for local subcribers.

In any event, I await clarification before going ballistic or engaging in another round of breathless “network neutrality violation” stories. If I'm right and this is just a notice that Fairpoint cannot honor deals made between Verizon and third-party service providers, all well and good. If it is Fairpoint for some reason trying to force customers to abandon third-party email providers and use only Fairpoint, then we have another NN complaint and, most likely, a user revolt and angry letters from various members of Congress and state officials.

Stay tuned . . . .

In what Rob Friedan accurately describes as an obtuseness so thorough it looks suspiciously like deliberate misinformation, the Wall St. J. has yet another piece on what it imagines the network neutrality fight is about and why the best thing in the whole wide world is to do nothing.

Rather than rehash old ground (Rob does a fairly good job of it in his post), I will move on to my handy and simple network neutrality solution. “Simple,” in the sense of being a fairly straightforward piece of legislation. It would pass the buck back to the FCC for implementation — with all the attendant hassle and complications that brings. But from a Congressional standpoint, it is really quite straightforward. In fact, Congress already resolved this problem once a long time ago, back when the FCC was struggling with them new-fangled mobile wireless networks.

How did they do it? And what would I do for broadband? See below . . . .

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One of the sad legacies of the Clinton Administration is the never ending circus of internet governance known as the Internet Corporation for Assigned Names and Numbers, or ICANN. The idea, in those optimistic “anything not government is good” days, was to insulate management of the domain name system (DNS) from politics by setting up a structure outside government to handle the name and number system of the internet. The notion was that you could take a critical foundation of the internet's architecture, on which a company called “Network Solutions” had built a huge business on maintaining a friggin' database, and prevent people from trying to control it by moving it out of big bad government and into a noble non-profit corporation. As a double protection, they expressly limited ICANN's mission to “technical coordination” via “private contracts” and absolutely not, not, NOT governance. Oh, and fixing trademark and cyberquatting issues. And having governments involved via the “Government Accountability Committee” (GAC). And creating competition in the domain name registration biz. And DNS security. But other than that, no governance.

Some of us at the time warned (a) that there was nothing magic about government v. non-government, control over a critical resource just about ensured that government-like stuff would happen, (b) you can't be “no governance, just technical coordination, except whatever” anymore than you can be “absolutely all abstinence except for the no sex part,” and (c) Anyone who thought governments — including the U.S. government — would just let DNS go its merry way and limit input to an “advisory committee” for a “technical coordination body.”

Guess what? Turns out we were right. So now the Obama Administration gets to inherit the perennial problem of how to deal with all the conflicting interests around ICANN and management of the DNS system — a most unrewarding job given the number of conflicting interests and the fact that while the issue is potentially of significant importance to the smooth management of the internet, the actual pay off for any specific decision is pathetically puny compared to the massive headache caused by making a final decision. Which is why this has festered for ten years.

A bit more, and an outrageously simple suggestion, below . . . [Read More!]

Both Dave Isenberg and Tim Karr have already cast a rather skeptical eye over the Wall St. Journal story claiming that Google is in secret negotiations to get “fast lane” treatment for its content in violation of Network Neutrality principles. I'll therefore limit myself to a few additional points. I'll not along the way that one of the nice things about having a blog is that I can point to stuff I said a long time ago for the inevitable accusation that I am simply an apologist for the Great Google Overlords.

More below . . . .
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Well that certainly didn't take long.

Richard Bennett has an article at The Register describing BitTorrent, Inc.'s new method for circumventing traffic throttling. Essentially (if I understand it), BitTorrent has altered the way in which its uTorrent P2P application will work. Instead of relying on the Transfer Control Protocol (TCP) uTorrent will now use the User Datagram Protocol (UDP) to move packets. Richard describes what this means and the potential impact of this better than I can. Critically, however, Richard describes this as a means by which BitTorrent can avoid Bell Canada's targeted traffic management by disguising the nature of its traffic as latency-intolerant (like voice over IP (VOIP))and therefore given priority over other traffic. You can see some discussion of this as a response to the CRTC decision to allow Bell Canada to manage traffic here at DSL Reports.

As I observed only last week, the CRTC decision presents a splendid opportunity to grab some popcorn and watch some other country play games with its critical infrastructure. Mind, since the internet is a global “network of networks,” what happens in Canada is likely to impact me here in the U.S. as well. But I can't do anything about that. So pardon me whilst I munch my popcorn and enjoy a good dose of Cassandrafruede (a term of my own invention which means “the bitter pleasure experienced when something awful you predicted that could have been avoided if people had listened to you comes to pass, even though you also get screwed through no fault of your own”).

More analysis to go with my popcorn below . . . . [Read More!]

According to this official news release, the Canadian Radio-Television and Telecommunications Commission (CRTC) denied a request from the Canadian Association of Internet Providers (CAIP) to stop Bell Canada from throttling without notice the traffic of rival ISPs leasing access to Bell Canada's network. Instead, CRTC punted to a general inquiry on traffic shaping.

According to Michael Geist, expert on all things telecom and Candian and general super-smart guy, this is not the last word from the CRTC on the question. But since — according to the public notice — the first public hearing on the subject is scheduled for July 9, 2009, Canadian ISPs can look forward to a considerable period of time when they live at the mercy of their largest rival.

This does not depress me, as I do not live in Canada. Rather, I am excited at the prospect of some other country (for a change) deciding to make offerings to the Gods of the Marketplace and play games with its critical infrastructure while I get to watch. Until now, Canada has generally been outranking us in the international rankings on penetration, although it ranks less well on affodability and only so-so on speed (as compared to countries with real broadband). Those who see such things as relevant (and not everybody does, the situation is complex and the data messy, hard to come by, and subject to multiple interpretations) generally regard this as a consequence of bad policy choices by the FCC (again, not everyone agrees, the data — to the extent we even have data — is very messy and complex). In particular, a lot of us think that the decision to eliminate mandatory wholesale access and rely on “intermodal” competition was a phenomenally bad idea.

Now we may get a chance over the next few years to test this hypothesis, and at someone else's expense! Go Canada!

More below . . . . [Read More!]

After Comcast surprised me with their filing on Friday, I really wanted to believe they had turned a corner. Not to anthropomorphize too much, but I had hoped that Comcast had gotten such a bad public relations disaster out of this that they were determined to work so hard to be good little puppies that even a Democratic Congress, Democratic President, and Democratic FCC would believe that the we no longer needed rules. And I would be totally down with that (their behaving that is, we still need rules). I love it when companies learn their lesson and stop misbehaving. Remember, public policy is (IMO) all about result. If swatting Comcast on the nose like a naughty puppy gets them to stop pooping on their customers, then they deserve a pat on the head and a tummy yummy treat when they behave.

But I'm having a “Columbo moment” here. For those who did not grow up in the 1970s and therefore do not recognize the reference, Columbo is a television detective who every episode goes to talk to the chief suspect about the circumstantial evidence, and the chief suspect always has a fully prepared and perfect alibi. On the way out, apparently as an afterthought, Columbo will turn around and say: “there's just one thing that bothers me.” This question on a minor inconsistency turns out to open a gaping hole in the suspect's alibi and — in classic television fashion — allows Columbo to solve the crime by the end of the show.

I do not pretend there is any mystery here left to solve. Comcast's filing very neatly explains their past practices, how we reached this point, and how Comcast intends to change its practices. It includes benchmarks for performance and a plan for informing its subscribers. It looks exactly like what the Commission ordered.

There's just one thing that bothers me. Footnote 3 of Attachment B. Comcast stresses in footnote 3 that its 250 GB per month cap is not a network management policy, is not a replacement for its current network management practices, and therefore is not actually a proper subject of this disclosure report. Now why did they go out of their way to say that?

If you will excuse me, sir, while I adjust my raincoat, a bit more analysis below . . . [Read More!]

There's been a lot of back and forth over whether letting broadband providers lock up content, or content providers lock out ISPs, is a good thing or a bad thing. And now, ESPN360.Com is going to kick off the fragmentation games and let us all find out.

It is a fine old Republican free market anti-deregulatory tradition to deregulate critical infrastructure and hope for the best, pooh-poohing doomsday predictions as ignorant exaggerations and fear mongering by business-hating regulation-loving quasi-commies. And since this philosophy worked so well with our financial sector, we have now moved it to the next major engine of the economy — broadband.

I am so excited! For those who have developed a taste for Lehman Bros-type thrill rides, the ESPN360.com deal will bring back fine memories of your first subprime derivative. You (and the rest of us along for the ride) can look forward to the thrill, the excitement, the dramatic highs and lows of playing high stakes roulette with our digital future. True we've lost our mortgage money (literally and metaphorically) playing “follow the Subprime queen.” But don't worry. As any economist will tell you, the combination of a lack of information, high transaction costs, complex interrelated markets, and poorly understood network effects is just tailor made for that wild west anything goes atmosphere that made all them miners rich in the Sacramento gold fields!

Bet our critical infrastructure? How can we afford NOT TOO!!!

Details below . . . [Read More!]

Well, after saying that while Comcast might fully comply with the FCC's requirement to report on September 19, but I expected them to play games instead, Comcast handed me a very pleasant surprise. Not only do they appear to have made a thorough disclosure of their current network management practices and their future network management plans, not only have they submitted the required compliance plan with benchmarks, but they actually served me with an electronic copy. As I pointed out last time, this last was not required but is generally good form.

The downside, of course, is that I must go and actually read the filings. That nasty suspicious nature they beat into me at law school rears its ugly head again. Still, it's a “problem” I enjoy having so I can't really complain.

But it looks like Comcast has decided that its best interest lies in complying and getting this behind them (with the exception, of course, of the Petition for Review). While I am by no means ready to lower my guard and drop my own Petition for Review (that nasty suspicious nature again), I give credit where it belongs. At first glance, Comcast appears to have complied as thoroughly as I could wish. Assuming this bears out after proper verification, I hope I am pleasantly surprised a second time when Comcast complies on schedule.

Stay tuned . . . .

Back on August 20, the FCC released its Order resolving the complaint against Comcast for blocking P2P protocols. As part of the remedy, the FCC ordered Comcast to provide a full report on its current “network management practices” within 30 days, along with a transition plan for how it intended to manage traffic after it discontinued its current practices. The FCC then invited Free Press and anyone else interested to keep a sharp eye on Comcast.

Comcast has sworn up and down that it will comply with the FCC's Order and it is only appealing in the D.C. Circuit as a matter of principle. I, nasty cynical public interest dude that I am, so doubt this noble intention that i have filed a law suit of my own to get the FCC to clamp down on Comcast now. So, here we are at last on September 19. What does Comcast do?

Comcast has a range of options. Comcast could refuse to comply, forcing the FCC to take action and potentially giving Comcast grounds to go to the D.C. Circuit for an emergency stay. I think that pretty unlikely, given what a big deal Comcast has made about complying.

Comcast could fully comply. But, to paraphrase Arlo Gutherie, that isn't very likely and I don't really expect it.

What I expect is for Comcast to file something incomplete, possibly with a request for the FCC to protect its proprietary data. But more likely they will file something that will be just enough compliance to present Kevin Martin with a nasty political choice: Does he enforce the letter of Order and go in guns blazing against Comcast, knowing that Comcast will make great political hay of his supposed “vendetta” against them? Or does he let Comcast thumb their noses at him and — in addition to the humiliation factor — have public interest groups question whether he really intend to enforce that end of the year deadline and thus call his hard-won consumer protection credentials into question? The situation is further complicated by the internal politics of the Commission. Whichever choice Martin makes (and he gets to make it himself, since it is an enforcement action and not subject to a vote of the full Commission), it is almost certain that two Commissioners will call him on it publicly. McDowell and Tate are almost certain to regard whatever fig leaf Comcast files as sufficient, whereas Copps and Adelstein will likely raise a hue and cry if Martin lets Comcast get away with filing an incomplete report.

As an aside, I also expect Comcast to file after close of business and to do so by hand rather than electronically, so that the content is not immediately accessible. I also do not expect to get a service copy, despite being counsel to complainants. That's perfectly legal of Comcast, as it can take the position that this is a report to the FCC and not a pleading that needs to be served on the complainant or complainant's counsel. But it does mean I don't expect to see what Comcast actually filed until sometime next week.

Happily, I put my trust in the advice of the Bible and do not put my trust in princes — or FCC Commissioners. In this case, the pending Petition for Review gives us a certain leverage, and Comcast will have to consider that it will have a tough time arguing my Petition is moot and pointless when they are not actually in compliance with the FCC's Order.

Perhaps I misjudge Comcast. It would certainly make my life easier if they just complied and filed something open that detailed their past practices and explained how they planned to go forward (including details of he 250 GB cap). In particular, I very much want to know if Comcast intends to exempt its own content from the 250 GB cap. That would be rather anticompetitive, and without any actual rational connection to the stated need to reduce last-mile congestion. Comcast originated packets running from the head-end to the subscriber take up as much capacity as non-Comcast originated packets.

See, there goes that nasty and suspicious mind of mine again. Still, I hope I'm wrong and Comcast comes clean.

Stay tuned . . . .