Packets is packets, right?  Wrong.

With the demise of the Net Neutrality standards, Internet providers are free to “prioritize” certain kinds of packets over others.  Now this is nothing new.  The TCP/IP protocols already prioritize packets based upon their nature, source and destination.  Latency is not much of a problem for e-mail, file transfer, or text messaging, but a big deal for VoIP and videoconferencing.  The protocols know this.

Now, what’s different between prioritizing packets based on engineering standards and net neutrality is that companies are now free to prioritize packets based upon the free hand of the market.  “Dat’s an awfully nice streaming video youse got there.  It would be a shame if anyting was to happen to it.”

And, at least anecdotally, that’s exactly what seems to be happening.

According to at least one report from an Indiana University researcher, ISP Comcast with a near monopoly in many major marketplaces is deliberately slowing down content from a specific source – Netflix.

The researcher tried an experiment – logging into Netflix directly via Comcast, and measuring bandwidth (throttled) and logging into Netflix via his school’s SSL encrypted VPN (not throttled.)

Now you would assume that the VPN would be slower – after all, it was not only encrypted, but also took a more indirect path from the researcher’s computer to the ultimate destination.  But no.  The direct connection to Netflix maxed out at a bit rate of 235 kBps, but the indirect (VPN) route provided a constant connection speed of 3,000 kBps – more than 10x the bandwidth!

While Comcast could measure bandwidth consumption in both cases, in the case of the VPN, because the traffic was encrypted, they couldn’t know that the packets were streaming video from Netflix.  Hence, no throttling.

Personally, I have experienced this same problem of throttling Netflix on Comcast.  With my brand new “smart” TV, I have attempted on several occasions to watch shows on Netflix, only to be thwarted by slow speed, latency, buffering and of course, throttling.  Not only does this decrease the resolution of my “high def” TV images, but frequently makes it impossible to watch anything other than the “spinning pizza pie of death” network.

The problem is going to get much worse.

On February 14, Netflix will release season two of House of Cards, and tens of thousands (perhaps millions) of people will spend their Valentine’s day weekend with Frank and Claire Underwood, Zoe Barnes, and the rest of the fictional Congress (the only difference being that the fictional Congress does seem capable of doing things from time to time.)

On April 6, the Houses of Westeros will join the bandwidth fray (not the House of Fray) and further clog the series of tubes that is the Interwebs.

You see, bandwidth is perceived to be a limited commodity.  At least in the United States.  At least right now. You see, the United States, inventor of the Interwebs (thank you Vice President Gore) and home of Google, Yahoo, AOL, Facebook and yes, Netflix) ranks 32nd among industrialized country in average download speeds at 21.1 mBps.  Hong Kong’s average download speeds are 72.5 mBps.   But this is a drop in the bucket compared to what is possible with current technology.  Alcatel Lucent and BT’s most recent bandwidth tests achieved speeds of 1.4 tBps – fast enough to send 44 uncompressed high def movies per second.  No more spinning pizza pies of death for you!

The Law

So watch the ads for Comcast, FIOS or any other Internet provider, and they will tout how “fast” their network is.  No, we aren’t like that turtle (or tortoise – same thing?) family “The Slowsky’s” – we have “blazing fast” Internet.   Or FIOS ad for “America’s Fastest, Most Reliable Internet.”  Or Time Warner’s “super fast” Internet.  Or CenturyLink’s ad promoting that it has “up to” 20 mBps” download.

Wow, that’s fast. But is it real – and does it have to be? The answer of course is, no and probably not.

I had a 1976 Honda Civic (brown) that could travel at speeds “up to” 200 miles per hour.  If pushed off a cliff.  In a vacuum.  Accelerated by a rocket engine.  At night.  By using the weasel words “up to” these ISP’s can promote speeds that are theoretically possible under ideal conditions (when nobody else is using the web).  The reality lies not in the company’s marketing and sales and advertising data, but rather in its contracts.  And there you get a completely different story altogether.

Take Comcast for example.  Its user agreement refers to what are euphemistically called “network management practices.”  Under these practices, Comcast, like most other ISP’s retains the right to unilaterally decide that a consumer is using “excessive” bandwidth, and unilaterally decide to slow down their speed of upload or download.

So even if they advertise a specific bandwidth, and even if they charge consumers extra for the faster speed, under their “network management practices” they never ever have to actually deliver that speed.  To anyone.  Ever.  They don’t even have to come close.  And they can discriminate based on the consumers’ behavior.

In a 2010 case, the D.C. District Court found that the FCC did not have the jurisdiction to regulate a cable provider’s network management practices.  That’s just between the consumer and the ISP and is a matter of contract.   While in a 2011 case, a New York court allowed a consumer to sue its ISP (Time Warner) when the provider selectively “throttled” the customers’ use of P2P file sharing the following year, another New York court  reached the opposite conclusion. It opined that Cablevision was within its right to throttle its customers, noting that, under the subscriber agreement, “when a subscriber engages in conduct that uses more bandwidth than the amount that Cablevision, in its discretion, determines is reasonable, Cablevision may take action that it deems necessary to protect its network, such as suspension of internet service or a reduction of allotted bandwidth or speed.”

The court went on to say “Cablevision’s discretionary restriction of bandwidth or suspension of internet service — was fully disclosed in the Terms of Service and Acceptable Use Policy. … [T]o the extent that Plaintiffs allege that Cablevision mislead them by falsely representing that its service provides “High Speed Internet,” “Faster Internet,” and “blazing fast speed” and that “Optimum Online’s lightning-fast Internet access takes the waiting out of the Web,” these statements constitute puffery and are not actionable.”

So the FCC can’t regulate ISP’s network management practices, and may not have the authority to impose “network neutrality” standards  (although the FCC Chairman indicated that he is still studying the issue).

Network Management vs. Network Neutrality

Network Management and Net Neutrality are related but are slightly different things.  In a network management program, an ISP typically discriminates against users based upon the VOLUME of data used (bandwidth hogs) and/or the service being used (P2P file sharing.)

In net neutrality, the ISP additionally discriminates based upon the nature AND SOURCE of the service or packets.  Thus, Comcast could throttle Netflix streaming, but not Hulu Plus.  Or it could demand a vigorish from HBO to allow its customers to stream the HBO GO service.

It could go further – it could charge customers (or Netflix) a premium for streaming House of Cards Season 2 without interruption, but allow people to watch other Netflix original programming (say, Bad Samaritans) with no kickback – um, payment.

Supply and demand, baby.

Entities like Comcast may also favor their own streaming networks (XFinity on Demand) over those of “competitors.”  So if you stream Good Fellas through Netflix, iTunes or Amazon, you get the additional “benefit” of being able to go to the kitchen for snacks during the frequent intervals where the picture is buffering.  But if you stream the same program through XFinity – voilà!  Blazing speeds.

As Ray Liotta said, “To be a gangster was to own the world.”

So this debate goes beyond mere net neutrality.  It’s a fight for the future of the Interwebs.  Netflix makes boucoups bucks streaming video over ISP’s infrastructure.  The ISP’s have to pay boucoups bucks to create the infrastructure to make Netflix rich.  They want their share.  Whether it’s a fair share or not.  Ultimately, it may take an Act of Congress to settle this.  And that ain’t likely to happen any time soon.  Not without Majority Whip (spoiler alert – soon Vice President) Frank Underwood.  And that’s a real House of Cards.

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