The investigation by the Federal Communications Commission (“FCC” or “Commission”) of Comcast’s network management practices regarding traffic from BitTorrent applications prompted an intense debate regarding the extent to which Internet Service Providers (“ISPs”) can manage traffic over their networks.¹ Although the Commission found that Comcast’s interference with BitTorrent was unreasonable, it declined to prescribe specific rules or guidelines for reasonable network management practices or prohibit ISPs from engaging in practices that discriminate against particular Internet applications, content, or technologies.² While the ruling signaled that explicit blocking of applications was an unacceptable practice, it provided ISPs with considerable latitude to manage traffic across their networks. In this regulatory vacuum, ISPs have implemented substantially different network management systems and practices. First, in response to the FCC’s decision, Comcast announced it was implementing a non-standard network management system that would de-prioritize the traffic of bandwidth intensive users when the network was in a congested state.³ Then Cox Communications announced it was testing a new method for managing traffic in times of congestion that would prioritize “time-sensitive” Internet traffic such as Web pages, voice calls and streaming video, while delaying what it determined to be non-time sensitive traffic such as file uploads and peer-to-peer (“P2P”) activity.⁴ Most recently, Time Warner amended its subscriber’s agreement to permit the company to use network management tools to suspend or reduce a subscriber’s throughput rate to ensure that its service operates efficiently.⁵

As Internet traffic continues to increase and consumers access applications and content that demand more and more bandwidth from their broadband connection, some ISPs argue their networks are becoming increasingly congested—creating a need for network management or quality of service (“QoS”) mechanisms to limit subscriber’s usage or prioritize certain traffic.⁶ On the surface, such mechanisms appear like a benign attempt by ISPs to assure the quality of certain applications and improve their customers’ experience on the network. However, the focus on network management obscures a fundamental problem with the majority of residential broadband networks: some ISPs have excessively oversold their broadband services—promising unrealistic speeds given the capacity limitations of the networks.⁷

Such limitations are conflicting with a shift in Internet applications and usage from low-resolution pictures to high-quality streaming video and from passive web browsing to more participatory applications such as Facebook, YouTube, and online gaming.⁸ Although, P2P applications⁹ such as BitTorrent may serve as easy scapegoats for these congestion problems, the lack of sufficient capacity on some residential broadband networks to handle present as well as future uses of the Internet is a more direct causal factor. In response to this bandwidth crunch, a number of providers have opted for complex traffic management or QoS mechanisms to ration limited bandwidth among subscribers.¹⁰ Ultimately, however, ISPs could and should resolve this congestion more effectively by adding sufficient capacity and providing end-users with accurate information regarding the performance capabilities of their broadband connection.

The focus of ISPs on network management and QoS further raises concerns among network neutrality advocates, who view prioritization through QoS and deep packet inspection (“DPI”)¹¹ as fundamentally altering the end-to-end design of the Internet.¹² Although not directly tied to previous efforts to charge content and application developers for access to a provider’s customers, prioritization of certain traffic would have implications for shaping the future development and innovation on the Internet—allowing ISPs to make value judgments in terms of which applications, services, and content are the most important to subscribers. Network management and QoS systems further cement ISPs as gatekeepers on last-mile networks, building in the necessary mechanisms to monitor and monetize traffic.

Such negative implications have prompted calls for regulatory protections to ensure all Internet content, applications, and services are treated equally by ISPs.¹³ Although neutrality regulations may be necessary to protect consumer freedom on the Internet, current residential networks, if left unimproved, may be unable to keep pace with users as applications and content consume greater and greater amounts of capacity. This could cause dramatic slowdowns on some networks.¹⁴ These realities require focused attention and an in-depth assessment of both ISPs’ claims and potential solutions offered by network neutrality proponents to facilitate constructive solutions that will ensure innovation continues in the U.S. Within this context, the very future of the Internet as an open, participatory medium will rest upon how we answer the fundamental question, “Who will make network management and prioritization decisions, end-users or network operators?”

This paper will examine the issue of congestion and the impact of network management and QoS prioritization, both in terms of its validity as a solution to congestion on residential broadband networks and its implications for changing the Internet. Part I of the paper will examine the capacity limitations of most residential broadband networks and the impact of changing broadband usage patterns and applications such as P2P and streaming video. Although it is clear that such applications are exposing the capacity limitations of certain networks, the degree to which ISPs’ business decisions and network design are contributing to the problem has been obscured in the current discussion. Part II will explain the current network management practices of prominent ISPs and assess their validity as a solution to congestion. Part III will examine the implications of network management and QoS for altering the end-to-end design of the Internet and the strong incentive network operators have to exert control over the applications and content that flow over their networks. The final part of the paper will attempt to strike a balance between a blanket prohibition on network management and the capacity realities of some last-mile networks. It will recommend policy solutions that address congestion on networks, empower end-users, and promote continued innovation on the Internet.

The full text of the paper can be downloaded here (pdf, 51 pp).

NOTES

^† Benjamin Lennett is a Senior Policy Analyst for the New America Foundation’s Open Technology Initiative and Wireless Future Program. The author wishes to thank Robb Topolski, Daniel Meredith, and Adam Lynn for their invaluable assistance and guidance with this article.
¹ See, e.g., Declan McCullagh, FCC Formally Rules Comcast’s Throttling of BitTorrent Was Illegal, CNET NEWS, Aug. 1, 2008, http://news.cnet.com/8301-13578_310004508-38.html. The article notes the likelihood of court challenges, as well as the “unusually pointed dissent” of Commissioner Robert McDowell, who “said the order would invite far more extensive FCC regulation of the Internet, with the rules varying by which political party controls the White House.” Id.
² See In re Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband Industry Practices, Petition of Free Press et al. for Declaratory Ruling that Degrading an Internet Application Violates the FCC’s Internet Policy Statement and Does Not Meet an Exception for “Reasonable Network Management,” Memorandum Opinion and Order, 23 F.C.C.R. 13,046 at ¶ 32 (Aug. 1, 2008) [hereinafter Comcast P2P Order] (“Deciding to establish policy through adjudicating particular disputes rather than imposing broad, prophylactic rules comports with our policy of proceeding with restraint in this area at this time.”).
³ See Letter from Kathryn A. Zachem, Vice President, Regulatory Affairs, Comcast Corp., to Ms. Marlene H. Dortch, Sec’y, Fed. Commc’ns Comm’n, File No. EB-08-IH-1518,    WC    Docket    No.    07-52,    at    1-2    (Jan.    5,    2009),    available    at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_doc....
⁴ Peter Svensson, Cox to Test New Way to Handle Internet Congestion, FOXNEWS.COM, Jan. 28, 2009, http://www.foxnews.com/wires/2009Jan28/0,4670,TECCoxInternet,00.html.
⁵ K.C. Jones, Time Warner Under Fire For New Terms Of Service, INFORMATION WEEK, June 2, 2009, http://www.informationweek.com/news/showArticle.jhtml?articleID=217701343.
⁶ See The Future of the Internet: Hearing Before the S. Comm. on Commerce, Science and Transportation, 110th Cong. 7–9 (2008) (statement of Kyle McSlarrow, President and CEO, National Cable & Telecommunications Association) [hereinafter McSlarrow Statement].
⁷ See infra notes 48–51 and accompanying text. See also Posting of Luc Ceuppens, Running Networks Hot: Urban Myth or Viable Strategy?, to XCHANGE MAGAZINE, Luc Ceuppen Blog, http://www.xchangemag.com/articles/501/running-networks-hot-urban-myth- strategy.html (Apr. 8, 2009, 08:15 EST) (noting that while the traditional “rule of thumb” for oversubscription ratios was 4:1, current ratios of 12:1 or 20:1 are becoming the norm as ISPs cope with increasing demand).
⁸ McSlarrow Statement, supra note 6, at 5–6.
⁹ See infra notes 15–17 and accompanying text.
¹⁰ McSlarrow Statement, supra note 6, at 8–9.
¹¹ Nate Anderson describes deep packet inspection as:

move[ing] beyond the IP and TCP header information to look at the payload of the packet. The goal is to identify the applications being used on the network, but some of these devices can go much further; those from a company like Narus, for instance, can look inside all traffic from a specific IP address, pick out the HTTP traffic, then drill even further down to capture only traffic headed to and from Gmail, and can even reassemble e-mails as they are typed out by the user.

Nate Anderson, Deep Packet Inspection Meets ‘Net Neutrality, CALEA, ARS TECHNICA, July 25, 2007, http://arstechnica.com/hardware/news/2007/07/Deep-packet-inspection-meet.... See also Rob Frieden, Internet Packet Sniffing and Its Impact on the Network Neutrality Debate and the Balance of Power Between Intellectual Property Creators and Consumers, 18 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 633, 652 n. 57 (2008) (citation omitted) (“Deep packet inspection (DPI) technology allows service providers to peer inside next-generation network (NGN) packets to see what users are up to—what applications they are using, where their traffic is going, and so on.”).
¹²  See M. CHRIS RILEY & BEN SCOTT, FREE PRESS, DEEP PACKET INSPECTION: THE END THE INTERNET AS WE KNOW IT 7–8 (2009),    available at http://www.freepress.net/files/Deep_Packet_Inspection_The_End_of_the_Int... Know_It.pdf; see also Brett M. Frischmann & Barbara van Schewick, Network Neutrality OF and The Economics of an Information Superhighway: A Reply To Professor Yoo, 47 JURIMETRICS J. 384–86 (2007) (“If infrastructure providers follow the broad version of the end-to-end arguments, they cannot distinguish between end uses, they cannot base access decisions or pricing on how those packets may be used; nor can they optimize the infrastruc- ture for a particular class of end uses.”).
¹³    Frischmann & van Schewick, note that [N]etwork neutrality rules would prevent network providers from excluding applications or content from their networks or from discriminating against them . . . . [how- ever] network neutrality proponents disagree whether certain practices should be considered “discrimination” under a network neutrality regime. In particular, network neutrality proponents disagree whether a network neutrality regime should allow Quality of Service, and, if yes, whom network providers should be allowed to charge for it.
Frischmann & van Schewick, supra note 12, at 389 n.22.
¹⁴    Peter Svensson, Comcast Blocks Some Internet Traffic, MSNBC.COM, Oct. 19, 2007,
http://www.msnbc.msn.com/id/21376597/.