Internet Caucus Speakers Disagree on Future of Port-Blocking

The extent of VoIP port-blocking was disputed by Dan Brenner, NCTA senior vp-Law & Regulatory Policy: “The number of instances of blocking you can count on one or two hands.” Northwestern U. Law School assoc. prof. James Speta agreed that blocking “seems to be a rare occurrence” and could happen accidentally through overprotective network configuration. But he defended “economically rational bases” for port-blocking, such as a network operator effectively managing limited resources for traffic. Consumers should worry about blocking purely to protect traditional voice revenue, the only situation in which their welfare is threatened directly, Speta said.

Whether port-blocking is threat enough to warrant a formal rule was in question. The FCC “seems to do a terrific job” in acting quickly on complaints, evidenced by the “tens of hours” between Vonage’s complaint against Madison River and the consent decree, Brenner said. Speta said the Commission’s authority under Title I of the Telecom Act is “insufficient” to prevent port blocking, but common carriers are refraining from blocking “for fear of waking the regulatory giant.” Vonage CEO Jeffrey Citron said only Madison River’s obligations as a telecom service saved his company from blocking: “Maybe this port blocking would be going on right now” if Madison River were a cable provider. Without new rules or better enforcement, “it’s actually just inevitable” that “you will see more blocking.” Brenner agreed cable has no obligation to carry VoIP providers but said the industry has no need to block, given its “competitive product” and host of challengers outside VoIP. Citron pounced on Brenner’s statement, asking “Why does cable object so much” to a rule against packet discrimination? Brenner responded that a blanket rule would snarl spam-blocking and lead to a growing list of exceptions.

“We are asking all the wrong questions” on packet discrimination, Citron said. The real question should be: What rights do consumers have over their purchased bandwidth? Citron said consumers should be allowed to manage their network resources as they see fit, not forced to go with whatever configuration ISPs choose for upstream/downstream speeds, bandwidth allocated for VoIP and such. “This is really all about network neutrality,” said Timothy Wu, U. of Va. Law School assoc. prof. “The Internet should be like the electric network,” with devices that can work in any home the same way. “This is just like the question of phone attachments” in the 1960s, when courts let users connect answering machines, faxes and eventually modems to the phone network.

Talk of new rules assumes companies won’t collaborate for common goals, Brenner said. Even as Microsoft’s Internet division tangled with cable companies, the cable industry worked with it to ensure the Xbox could perform its networked gaming functions over cable lines: “I personally believe this is a solution in search of a problem,” Brenner said. ILECs similarly “will see the light” on the benefits of offering naked DSL, erasing the need for regulatory intervention, Speta said. Invocation of nondiscrimination rules by companies like Vonage mainly uses the “regulatory process to gain business negotiation” as a shortcut, Brenner said. Calling govt. entry into disputes an unnecessary “third stool,” he said: “It’s very inexpensive for business to litigate” its competitors out of the market rather than innovating.

Brenner and Wu disagreed on the wisdom of network neutrality. Wu posed a scenario in which his neighbor can pay for premium Internet service that comes at the expense of his own basic service, asking Brenner if that would be fair. Brenner responded “Yes, it’s called HBO,” and said the XBOX’s online gaming functions fit Wu’s scenario. Targeted enforcement will accomplish more than a codified network neutrality principle would, Brenner said; if the FCC doesn’t act, “Congress should sit on the regulator.” Citron asked what the basis for enforcement would be without an existing rule. When Brenner went on at length on the case’s complexity, Citron interjected: “You still haven’t answered my question.” Wu said an ex post facto enforcement policy -- Brenner’s preferred route -- requires an ex anti facto rule to decide what constitutes wrongful behavior.

Cable companies and VoIP providers aren’t so far apart, Brenner and Citron eventually agreed. Asked if the cable industry is following the Bells’ precedent in degrading ISP service in the 1990s, Brenner sharply disagreed. Some NCTA members are affiliated with Vonage, he said, and bandwidth-heavy applications such as online gaming won’t affect VoIP or normal Internet usage. Citron said Vonage has had more trouble with DSL providers, with 3 of 4 ILECs still denying Vonage interconnection for E- 911 services. He also confirmed that wireless ISP Clearwire is blocking its ports because the new ISP can’t handle the traffic -- which Citron didn’t buy -- but Vonage has moved service to other ports. “Sometimes that third stool is necessary,” Citron said. Wu agreed “cable and Vonage are natural friends,” but said clear rules are needed to punish flagrant blocking of market entry. Brenner said the FCC’s close monitoring of 3rd-party ISP activity has worked fine without formal rules.

IPTV growth could eclipse VoIP port-blocking, panelists agreed. Wu said no one is asking: “What happens when you have serious competition for video?” TV programming delivered directly to the computer would be a much harder pill for cable companies to swallow than VoIP, Wu said.