Principles for Network Management, Limited Role For FCC

For several years now, the issue of Internet neutrality has been the subject of prominent and strident debate in telecom and Internet policy circles. In general terms, the issue concerns whether operators of broadband networks should be free to favor some traffic over others, or instead should be required to handle traffic in an essentially neutral manner. Since late 2007, the debate has focused in particular on what techniques network operators may employ for the purpose of “network management.”

(1) “Network Management” Moves To Fore of Internet Neutrality Debate

(2) CDT Suggests Principles for Network Management, But Limited Role for FCC

(3) Other Network Management and Internet Neutrality Developments

1) “Network Management” Moves To Fore of Internet Neutrality Debate

For several years now, the issue of Internet neutrality has been the subject of prominent and strident debate in telecom and Internet policy circles. In general terms, the issue concerns whether operators of broadband networks should be free to favor some traffic over others, or instead should be required to handle traffic in an essentially neutral manner. Since late 2007, the debate has focused in particular on what techniques network operators may employ for the purpose of “network management.”

“Network management” usually refers to technical actions that network operators take to keep the network running efficiently and avoid problems. It could include steps to combat spam, computer viruses, or denial-of-service attacks (in which an attacker tries to crash or freeze a website, service or network component by flooding it with bogus traffic). It also could include actions aimed at mitigating the impact of periodic congestion caused by high volumes of entirely legitimate traffic.

The recent emphasis on network management stems from revelations starting in the summer and early fall of 2007 that Comcast was sometimes interfering with its broadband subscribers’ peer-to-peer (P2P) upload traffic, by causing certain P2P communications to terminate. Comcast said that its actions were a reasonable means of alleviating congestion, justified by the fact that constant, uncontrolled uploading by a few large P2P users can impair network performance for other users. Critics charged that, by degrading selected applications and by failing to disclose that it was doing so, Comcast was undermining the open and user-driven nature of the Internet. Comcast has now announced that it will cease using the controversial congestion control tactic by the end of 2008, but this has not settled the broader questions raised by the incident.

The Comcast developments garnered a great deal of attention in Internet circles and prompted petitions to the Federal Communications Commission (FCC) alleging a violation of the agency’s 2005 broadband Policy Statement. That Statement – the closest thing to an existing government policy supporting Internet neutrality, though it lacks the status of actual rules – establishes principles centered around the idea that consumers should be entitled to use online content, applications, and devices of their own choosing. But the Policy Statement contains the following potentially important caveat: “The principles we adopt are subject to reasonable network management.”

In addition to seeking action against Comcast’s specific behavior, therefore, the petitions filed with the FCC also request clarification of the Policy Statement’s “reasonable network management” exception. One petition asked the FCC to initiate a formal rulemaking to determine what constitutes “reasonable network management,” while another asked for a declaratory ruling that degrading P2P traffic does not qualify.

The FCC took public comment on the petitions in February. It also hosted public hearings on network management in March and April. In general, network operators argued that rising traffic volumes, and in particular P2P, put great stress on the network and may require ISPs to engage in a variety of management tactics in order to keep the network running smoothly for most users. A number of other interested parties, including movie and motion picture interests eager to preserve the possibility of ISPs acting to stifle traffic associated with copyright infringement, joined in warning against FCC interference in ISP traffic management choices. On the other side, many argued that giving network operators free rein to degrade specific applications in the name of “network management” would render the Policy Statement meaningless and pose significant risks to competition, consumer choice, and innovation.

CDT submitted comments and reply comments to the FCC. As discussed below, CDT believes that network management has a legitimate place, but should be guided by some key principles in order to avoid risks. At the same time, the FCC should not attempt to regulate network management through formal rules.

FCC Policy Statement on broadband

CDT’s Comments to FCC (2/13/08)

CDT’s Reply Comments to FCC (2/28/08)

2) CDT Suggests Principles for Network Management, But Limited Role for FCC

Network operators may sometimes need to differentiate among certain traffic to ensure efficiency, reliability, or security on the network. For example, few would object to efforts to thwart spam or denial-of-service attacks. Likewise, most would acknowledge that where a network operator offers multiple tiers of service, it may need to manage traffic to enforce the usage parameters associated with each tier.

In addition, while network capacity presumably will increase over time, there will always be some bandwidth constraints and hence the possibility for congestion. Network management tools may play a role in dealing with such congestion. Indeed, one could argue that every computer network uses some form of network management in response to congestion. When traffic exceeds capacity, some packets inevitably will be dropped, and the network needs some way of determining which ones. Even dropping packets at random, or based on their order of arrival at the chokepoint, could be characterized as a form (albeit not a very active one) of network management.

But just because network management may have an important role in addressing real problems, it does not follow that any and all actions taken in the name of network management are entirely benign. “Network management” is a broad term that can encompass a variety of practices with a variety of goals. Some practices, by vesting network operators with a new level of “gatekeeper” control over what applications will thrive and which will not, could carry significant policy consequences.

In its comments to the FCC, CDT suggested several principles that should guide network operators and policymakers as they consider questions relating to network management:

  • First, network management practices should be transparent. Transparency can provide an important safeguard, enabling consumers and consumer advocates to push back against practices that could negatively affect competition or impair the usability of particular applications. Network operators should disclose sufficient information to provide a basis for comparison; a heavy BitTorrent user, for example, might be very interested to know if one broadband provider in the local area degrades BitTorrent traffic to control congestion while the other does not. Transparency also can encourage developers of services and applications to shape their products’ bandwidth usage patterns in ways that take account of legitimate network congestion considerations by, for example, designing an application to stay below the congestion levels enforced by an ISP.
  • Second, network management practices should be evenly applied. Techniques that put a network operator in the position to pick and choose among applications, services or protocols – deciding which ones will be subject to bandwidth limits or greater risk of packet loss, for example – carry serious risks. Once the operator is in the business of selecting particular traffic for inferior treatment, there is the possibility of mixed motives, as choices between different tactics could be tinged by competitive considerations. Innovators, meanwhile, would need to start worrying about whether and how their applications might be targeted. These risks can be mitigated if network management techniques are based on objective criteria, such as quantity of bandwidth used, and applied evenly, without regard to the content or source of particular traffic.
  • Third, network management practices should comply with core internetworking standards. The Internet has been described as a “network of networks,” and common protocols with generally accepted technical standards (such as the TCP/IP suite of protocols) are what enable communications and applications to traverse its constituent networks on a seamless basis. Developers of applications rely and design technology with the expectation that applications built to use and respond to these standards will function the same way across the public Internet. Network management tactics that depart from key standards risk increasing instability across the Internet, causing applications behave in unexpected ways and complicating the task facing innovators.
  • These principles are intended to apply to network management for congestion control. Tactics for protecting subscribers against harmful or nuisance traffic like spam or malware may well require a lower level of transparency and a higher level of tolerance for targeting traffic based on its content.


Importantly, at the same time as it suggested these principles, CDT also told the FCC to refrain from adopting formal rules to regulate network management. In CDT’s view, the FCC does not and should not have general regulatory authority over the broadband Internet. Even well intentioned and well devised rules specifying what network management practices are permitted could exceed the agency’s current legal authority. They also would risk setting a dangerous precedent that could open the door to less judicious regulatory intervention in the future. The FCC should not try to assert what would amount to unguided discretion to regulate broadband Internet service how and when it sees fit.

Rather, the task of establishing a concrete policy framework with carefully targeted rules for network operators is one for Congress. Legislation might well give the FCC an enforcement role. But in the absence of legislation, the FCC should show restraint. CDT believes that the FCC usefully could add a nondiscrimination principle to the broadband Policy Statement, but should hold off trying to impose a more prescriptive or more detailed regulatory framework.


3) Other Network Management and Internet Neutrality Developments

The FCC is not the only place where network management and Internet neutrality issues are on the agenda. The Internet Engineering Task Force (IETF) is hosting a workshop at the end of May on network congestion stemming from heavy P2P use and the possible ways that network operators could respond to it. IETF involvement could offer some welcome technical perspective that could serve as important background for the ongoing policy debate. In the long run, it even could potentially lead to work on developing new, widely accepted approaches to congestion control, which perhaps could reduce network operators’ experimentation with tactics that are more controversial and arguably discriminatory.

Meanwhile, there are efforts by ISPs and P2P applications providers to share technical information that may enable P2P systems to boost their efficiency and reduce their impact on overall network congestion. A group of major ISPs and P2P providers are participating in a working group they have dubbed “P4P” (the acronym stands for “Proactive network Provider Participation for P2P”). Comcast likewise has publicly announced agreements to collaborate with P2P providers BitTorrent, Inc. and Pando Networks. This kind of voluntary cooperation has the potential to produce some useful results, but it also has its limits. Network management approaches negotiated by and specific to individual parties are no substitute for open and generally applicable technical standards, and it would be a severe blow to Internet innovation if developers of new applications were expected or required to coordinate in advance with ISPs.

There are also some tentative efforts by major U.S. ISPs to experiment with usage-based pricing for Internet service. Time Warner in January announced a trial in Beaumont, Texas under which new subscribers would be charged based on how much bandwidth they use per month. Comcast has been reported to be considering a monthly usage cap, set high enough to affect only a tiny percentage of subscribers. Since ISPs say that many congestion problems are caused by a relative handful of their highest volume users, building explicit caps or surcharges into service plans may offer a promising way of addressing congestion issues in an evenhanded manner. Higher prices for higher usage (or for higher usage during the most congested times) could encourage greater bandwidth efficiency by users and applications, thus reducing the need for more controversial network management tactics. Such pricing also could provide ISPs with a way to make those users who impose the greatest burdens on the network do more to help defray the costs of network capacity upgrades.

Finally, the FCC proceeding and the related discussion of network management has prompted renewed attention in Congress as well. There have been recent committee hearings in both the House and Senate, and new Internet neutrality bills have been introduced in both the House Energy and Commerce and Judiciary Committees. H.R. 5353, introduced by Reps. Markey and Pickering, would establish a general policy against unreasonable discrimination by network operators and task the FCC with investigating and reporting on how current practices are or are not consistent with that policy. H.R. 5994, introduced by Reps. Conyers and Lofgren, would amend antitrust law to prohibit certain forms of network operator discrimination. Legislation on this subject faces strong opposition, however, and is unlikely to make significant progress during this election year.