Wetmachine: Harold Feld's Tales of the Sausage Factory

Cable Lobbying and the “All Things Orange” Rule.

Imagine for a moment my local school board is considering a measure to fight childhood obesity by banning “unhealthy” food and requiring that school vending machines only provide “healthy snacks.” Now suppose I am a vendor of things such as nacho flavor chips, cheese doodle equivalents, and other foods of a similar nature. Expecting that such a rule would make it more difficult for me to sell my products, I raise my hand at the school board meeting and engage in the following line of argument.

“Are oranges healthy food?”

“Yes,” the relevant official replies.

“Are carrots healthy food?”

“Yes.”

“So all things orange, like carrots and oranges, are healthy foods. Good.” Whereupon I sit down.

Subsequently, I try to sell my nacho chips and cheese doodle equivalents to schools. When informed they are not “healthy snacks,” I become quite upset. I invoke the “Rule of Orange Things” that declares that we need to treat all orange things fairly by treating them the same, so we either have to let me sell nacho chips or ban people bringing oranges and carrots. I will also complain that there is no way I could possibly have known that nachos and cheese doodles might not be “healthy food,” since they have an FDA mandated nutrition label (so they must have nutrition) and who the heck knows what “healthy food” means anyway, since we can see that many nutritionists are now down on juice and even on certain fruits or other foods long considered healthy alternatives to cookies and sugar sodas.

In such a situation, most of us would have no problem saying that nacho chips and cheese doodle equivalents are not “healthy food” despite being orange — because what makes oranges and carrots “healthy food” has nothing to do with their color. Most of us would also agree that while their may be some marginal cases around things like apple juice v. water v. soda, there is no definition of “healthy snacks” in use outside the junk food biz that would include nacho chips and cheese doodles — mandatory “nutrition label” notwithstanding.

Which brings us to the National Cable Telecommunications Association (NCTA) filing last Thursday just at the close of the bell in the Comcast/BitTorrent complaint docket (because the FCC issued a public notice for the meeting at which it will decide the complaint, the docket is now closed).

A bit more below . . .

NCTA's filing is a classic example of argument by the “Rule of Orange Things.” NCTA has done a survey of the top ranked schools as rated by U.S. News and World Report and claims these practices are “far more restrictive” than what Comcast does and that the FCC must immediately start prosecuting colleges and universities if it finds for Free Press. “If there is to be regulation, it must apply equally to all providers.” Or, if oranges and carrots are healthy snacks, then all things orange must be healthy snacks. How unfair, what a terrible violation of due process, if nacho chips and cheese doodles were denied their substantive due process rights, while foods with orange in their very name, like oranges and orange juice, are treated as healthy food! Oh, the humanity!

This last minute combination scare tactic/red herring fails because (a) the practices in question are not in any way similar to what Comcast does, despite quoting a few phrases from a university policy they expect folks won't read ; and (b) Universities are not “providers.” Ars Technica has already done a thorough debunking of NCTA's claims. In addition, EDUCAUSE, which represents colleges and universities on tech issues, managed to get in this reply just as the whistle blew and the record closed. Briefly, even a surface examination of the facts and the law cited by NCTA show that NCTA is merely engaging in a last minute scare tactic. Not only are college and university networks and other “private networks” legally different from Comcast and other “public networks” (in the sense of serving the general public, not in the sense of publicly owned), but the policies NCTA points to generally have to do with equipment or employment policies and not “network management.” Sure, colleges and universities provide access for a lot of people, their students and employees. They may also provide service (by accident or design) to others. This no more makes universities “providers” like Comcast than my letting my visiting relatives use my broadband access makes me a provider. As the EDUCAUSE folks point out, there is a fairly substantial amount of case law and FCC ruling on this point, so NCTA knows it is full of baloney here.

To put it another way, most of us generally don't have a problem with an employer (a “private network”) having a policy about no personal calls on company equipment on company time. But we would have a very big problem if the phone company (a “public network”) decided to monitor your calls and blocked any call where you discussed your job because you are only paying for a “residential” rather than “commercial” line. We do not generally have a problem with a company insisting that it employees work in Word or other standardized format. We would have a big problem if the phone company decided it would not allow people to speak on the phone except in English. And we would have no problem distinguishing between these two forms of “network management.”

The cable guys have a passion for the Rule of Orange Things. Combined with a lot of other technobable and econobabble, and repeatedly loudly enough and often enough, it can be a most effective tool. I spend a lot of my time at the FCC debunking various Rule of Orange Things arguments. Mind, I recognize that it is not always as clear cut as proving oranges aren't nachos. Everyone's favorite case to argue about, whether ISPs should be allowed to let third parties pay for “premium” delivery of their content or applications, is clearly a more difficult question under the current articulation of the FCC's principles. (Does “neutral” in the policy statement mean “not conferring an advantage” or merely not “willfully blocking or degrading?”)

But this case does not present so nuanced an issue. NCTA knows what it is doing when it compares college and university networks to Comcast, just as our hypothetical vendor understands why comparing nacho chips and cheese doodle equivalents to oranges and carrots is nonsense. The argument works more effectively here because while the average person has plenty of experience with oranges, a carrots, nacho chips and a cheese doodle equivalents, most folks haven't actually looked up the college and university policies in question or understand the difference between public networks an private networks. Also, like the kids who would like to believe the Rule of Orange Things because they would love it if nacho chips were healthy snacks, you will find plenty of folks in policy land who disagree with the result and therefore gratefully embrace Rule of Orange Things arguments with the same fervor as a Kansas school board embracing creationism as a legitimate alternate scientific view. Mind you, it is perfectly possible to make an argument against enforcement here without such ridiculous arguments (for example, Richard Bennett articulates his argument in this last minute filing without falling back on any bogus comparisons). But the cable guys know there is always a core of willing believers happy to accept such surface plausibility or folks genuinely confused by their unfamiliarity with the technology or law.

Me, I have a weakness for nacho chips. But I don't pretend they are a healthy food.

Stay tuned . . . .

posted at 12:19:47 on 07/29/08 by Harold - Category: Series of Tubes

Comments

CableTechTalk wrote:

That’s a cute metaphor: The Rule of Orange Things. Cheetos and carrots aren’t the same thing, just because they’re the same color.

Unfortunately, Harold Feld seems to have forgotten another rule: Read the Freaking Manual. Or in this case: Read the Freaking <a href="http://fjallfoss.fcc.gov/pr...“>Ex Parte Letter</a>.

If you did that, you would find out that we didn’t say that cable operators and universities are the same thing. We didn’t say that “the FCC must immediately start prosecuting colleges and universities.”

It says that we take ”issue with the allegation that P2P protocols were being singled out by cable operators for anticompetitive reasons — because some peer-to-peer applications can be used to obtain video programming that may compete to some extent with the video services offered by cable operators.” In other words, among the allegations hurled at the cable industry is that our claims of the necessity of network management are false and that we’re merely targeting P2P as a competitive technology.

So, we noted that “similar tools for managing congestion have been adopted by other network operators, such as college and universities, that have no conceivable anticompetitive intentions.” Many of these institutions of higher learning and “several do so in ways that are far more restrictive and 'blunt' than merely managing the flow, and sometimes delaying, the flow of P2P uploads.” Some prohibit P2P. Some manage downloads in addition to uploads. That’s their business. But they’re clearing not managing their networks because they fear competition from P2P applications.

We did say that if there must be regulation, that “it must apply equally to all providers.” But then we said that “the far better approach... is to allow different network providers to continue to seek out the network management techniques that are best suited to preventing congestion on their particular networks and maximizing customer satisfaction.”

Instead of an orange, this sounds like a sour lemon from Harold Feld.

07/29/08 13:48:51

Harold wrote:

Ah, that must be why EDUCAUSE said you were full of crap. Because your letter was so accurate.

Although I must say, given the speed of your response, y'all must monitor this blog pretty closely. the things Technorati ratings can't tell you . . . .

07/29/08 14:21:01

CableTechTalk wrote:

EDUCAUSE made the same leap you did, and came to the same fallacious conclusion. We are not equating public and private networks. What we are saying is both public and private networks engage in the same management practices to the same end - to guarantee a quality connection for users of the networks.

What we took issue with is the suggestion that two different network managers dealing with the same issue in exactly the same way have completely different motives assigned to their actions.

07/29/08 15:32:35

barry payne wrote:

what's bogus is to exploit conditions of congestion that result from specific, intentional policies of networks open to the general public that result in providers picking winners and losers based on arbitrary metrics of bandwidth use and prioritized service quality, imposed under conditions of artificial shortages and false tradeoffs designed to pre-empt consumers from making the decisions instead ... the ruse is that the same winners and losers will emerge regardless of whether congestion exists

if megabits-per-second capacity by service quality was priced correctly in the first place and not oversold, a neutrally managed network would either have no congestion or it would appear as a low-price, low-quality option as users self-sorted themselves into categories of heavy use, low use or perhaps no use at all in certain periods - “network management” outside of net neutrality is code for undermining this process

network providers didn't suddenly discover congestion as a form of economic scarcity with ridiculous claims that certain resources are “shared” - it's redundant since all resources are shared at some level in the added value chain - it's the rationing by price or non-price means coupled with clear use rights that determines congestion, and providers are the ones who refuse to sell unbundled service X consistently and transparently at price Y under Z conditions, except perhaps for the highest priced “neutrally bundled” packages

as for real oranges versus cheese doodles in school lunchrooms, an apt analogy would have the school - acting as the network provider - rearranging the menu by throttling cheese doodles except when bundled with oranges, coupled with a metered per-bite (teeth) limit on heavy eaters as others dive in for the all-you-can-eat jello side dishes, turning the notion of a liberal food nazi on its head as they decide which content is “unhealthy”

07/29/08 15:49:12

Harold wrote:

CableTechTalk:

Ah, so everyone who looks at this who isn't from the cable industry reads this and comes to the same conclusion is just wrong, while you and the cable guys are just right.

Got it. Very persuasive. I am definitely seeing the error of my ways now.

07/29/08 16:18:37

CableTechTalk wrote:

Harold:

Not what I'm saying at all. I'm saying text can easily be misconstrued and the intent of the letter was not what you suggested.

The intent was to point out that network providers in different circumstances use the same practices to manage congestion. The fact that cable offers programming on a different device has little to do with the use of P2P restrictions by colleges - which have no such competing interest.

If the use of P2P restrictions is “reasonable” in one instance, it should not be deemed “unreasonable” elsewhere. It creates a morass of regulation and inserts bureaucrats into decisions best left to engineers.

If you disagree with the practices in question, that's your prerogative and we respect your opinion.

Your readers, however, should have both sides of the story. In this case, our intent was not to suggest that university networks and cable networks are the same, and we want them to know that.

07/30/08 10:45:51

Harold wrote:

Readers are indeed entitled to all views, which is why I generally provide the links, so folks can follow up and make their own judgments. In this case, both EDUCAUSE (the folks who represent universities) and Ars Technica noted the same differences I did, and drew the same conclusions I did.

You are entitled to believe the differences I site are not relevant and the commonalities are. Readers will draw their own distinctions accordingly. That's what makes this such a cool medium for discussion.

07/30/08 12:06:49

Nadia Sindi wrote:

thanks for this important topic!

I've been scammed by Comcast, promotion deal. I have signed a contract to have the three services for only $53.37. I got my first statement was $91.56. They charged me with two fraudulent charges. That never was part of our agreement. I called several times to make sure,that I won't be charged any hidden cost. Now they are refusing to take some of these charges. My phone is register as “Do Not Call”, yet I'm getting unusual calls.. my number is blocked.

In addition I'm an Arab American who's running for Public Office.. So It's double jeopardy of this intrusion!!

--
Salaam. nadia

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