If HBO Gets Its Own Fast Lane, Will The Net-Neutrality Cops Crack Down?

The fuzzy regulatory construct known as net neutrality may get its first big test when providers of streaming video services like HBO and Showtime try to buy their own dedicated “channels” from cable operators to avoid congestion on the broader Internet.

The Wall Street Journal has reported talks between cable networks and broadband providers including Comcast, saying the entertainment companies are seeking a “managed service” that would give them a separate lane with better quality of service than if their bits were mixed in with the general flow of Web traffic. The cable companies are reportedly ambivalent about building such lanes, both because of the cost and because it might get them in regulatory hot water under the Federal Communications Commission’s new net-neutrality rules.

As well they might. The FCC has thus far avoided making any firm statements about where “broadband Internet access service” ends and “specialized services” – relabeled “non-BIAS data services” – begins. In the Open Internet Order released March 12, the agency says it doesn’t intend to crack down on dedicated traffic flows for services like traditional cable TV channels, Voice Over Internet Protocol, cardiac monitors, or even e-readers like the Amazon Kindle. But the FCC says it will remain vigilant for evidence “these types of service offerings are undermining investment, innovation, competition, and end-user benefits.”

It will be interesting to see how the net-neut cops treat dedicated channels for streaming video on demand, then. Since virtually all digital cable traffic now utilizes some form of Internet protocol as a delivery method, any channel set aside for a paying customer like HBO is theoretically bandwidth that could be used for general-purpose Internet access. The genius of the Internet is that bits can travel by any available route to be reassembled at the other end into meaningful content.

“A true dedicated channel means you set aside bandwidth for a particular use and if no one’s using it, it isn’t available,” said Christopher Yoo, a professor at the University of Pennsylvania Law School and director of that institution’s Center for Technology, Innovation and Competition. “That’s a sure way to choke off the benefits of broadband.”

The FCC’s net-neutrality rules don’t include the term “managed service” but they do spend several paragraphs discussing the difference between non-BIAS data service and what the agency just calls broadband. The officials who devised net neutrality say data services bundled with specialized devices like heart monitors, thermostats or automobile telematics will be free from regulation. One key differentiator: They aren’t a “generic platform” for Internet access and they “use some form of network management” to isolate their capacity from broadband Internet access.

But “network management” has been built into the Internet protocol from the beginning, as a means for ranking bits according to priority – the very evil net-neutrality rules are supposed to prevent. So by prohibiting companies for paying broadband carriers to insure high-quality delivery of their signals, the FCC is effectively ruling out the use of one of the basic features of Internet protocol. To be sure, the agency allows “reasonable network management,” but that is a fuzzy term that will be enforced retroactively against companies that engage in practices the regulators later decide weren’t so reasonable.

Included in the earliest Internet headers was a feature called Diffserv, Yoo said, which allowed eight levels of priority so time-sensitive bits like fragments of a voice conversation can speed ahead of lower-priority bits like email messages. Email bits can arrive in any order to be reassembled at the other end, while voice conversations require a more linear flow.

As engineers developed IPv6, the latest iteration of Internet protocol, they added a feature to allow dedicated circuits via the technology known as Multiprotocol Label Switching, which helps speed traffic through networks. That was “one of the most interesting decisions of the IPv6 architects,” Yoo told me, since it demonstrates how prioritization of traffic is considered a basic feature of broadband.

If HBO et al get dedicated “channels” for their streaming services, it will “start the process for the many ad hoc FCC `interpretations’ that will occur going forward,” said Robert Frieden, a professor of telecommunications law at Penn State Law School.

The FCC will have two conflicting missions in play here, he continued in e-mailed comments to me. On the one hand the agency doesn’t want to stifle valuable consumer services like VOIP, which for many cable subscribers provides basic phone service. On the other hand, they don’t want to undermine the basic concept of net neutrality, under which consumers theoretically have equal access to any Web content on the other end of the broadband pipe.The agency specifically mentions so-called “over the top” video providers, which it wants to protect against better-heeled competitors that pay to shove their bits in front.

Adding to the complexity are the arrangements big content providers like Amazon and Netflix make, either by building their own networks or contracting with content delivery network providers like Akamai, to push their content out to the edges of the network so it can be downloaded faster by consumers.

“Bear in mind that someway, somehow the FCC has avoided having to examine the functions and services performed by proxy server/CDN companies like Akamai,” Frieden said.  “Does an ISP simply have to show it operates like Akamai, but extends the value added, specialized features for the link downstream to end users?”

European regulators are wrestling with the same questions, Yoo said, and have discussed requiring specialized services to operate over dedicated bandwidth separate from the general Internet.

“It’s a really stupid idea,” Yoo said, because bandwidth, under the Internet protocol, should be universal.

“It’s that sharing of multiple types of traffic that makes the internet so effective,” he said.

The finance industry faced a similar problem when trading speeds exceeded what could be handled reliably on public networks. Traders responded by building their own high-speed networks to drive lag times down to the millisecond level. While that made sense for the finance industry and the cost was born by traders and their customers, it might not be the best model for the Internet, Yoo said. By prohibiting broadband providers from charging for prioritized delivery in one sense, the FCC may be fostering investment in prioritized delivery on wasteful parallel lines.

“It’s an example of what could happen if we limit the kind of services we can provide,” Yoo said.