The 'fast-lane' debate resumes over Google and tiered access

What could be a "non-story story" in this morning's Wall Street Journal which some are saying strays too far from the truth, was met with a "non-denial denial" response from Google indicating it may not be too far from wrong.

The chatter this morning is about whether Google, a company whose name actually means "big," is approaching cable companies about possible partnerships that could give certain customers higher-speed, premium access to higher-bandwidth content such as YouTube and Google Apps. This after a Wall Street Journal story painted Google as two-faced, advocating so-called "net neutrality" principles in public while making exclusivity deals with carriers in private.

The WSJ story received very high placement Monday morning in almost every blog and aggregator except, interestingly enough, Google News.

Arguably, the story may not have any actual news in it. That Google and other major content providers have been considering or actively seeking partnerships that could lead to "fast-lane" access for themselves and others willing to pay for it, has been a fact in the public record for at least three years. In the spring of 2006, it became a bone of legislative contention when the then-Republican controlled Senate Commerce Committee attempted to railroad through Congress legislation that would permit national licensing for qualified broadband providers. Proponents of the measure suggested openly that carriers could partner with content providers to offer premium-tier service to customers, which they said would be necessary in order to generate the revenue to fund nationwide broadband buildouts.

But opponents argued that such deals would give carriers and content providers the means to partition the Internet into classes of accessibility that could end up being exclusionary for smaller providers and smaller carriers. It was this debate that actually seeded the phrase "net neutrality" into the common vernacular. In the end, the opponents won the day not for having won the argument, but due to the Democrats' takeover of Congress the following year.

At that time, one outspoken opponent of net partitioning was Stanford University Law School Professor Lawrence Lessig. During the Commerce Committee debate, Prof. Lessig spoke out in favor of former FCC Chairman Michael Powell's "Internet Freedoms," an effort to codify a series of four principles about Internet access and service distribution in a manner not dissimilar to the Bill of Rights. "The now openly-stated intentions of AT&T and others to introduce access- tiering to the Internet threatens to undermine application competition on the Internet. Congress should act to avoid that result," reads Prof. Lessig's written testimony before Congress (entered into the record though not spoken aloud).

"Access-tiering will create an obvious incentive among the effective duopoly that now provides broadband service to most Americans," the Professor's statement continued. "By effectively auctioning off lanes of broadband service, this form of tiering will restrict the opportunity of many to compete in providing new Internet service...The incentives in a world of access-tiering would be to auction to the highest bidders the quality of service necessary to support video service, and leave to the rest insufficient bandwidth to compete. That may benefit established companies, but it will only burden new innovators."

In the very next paragraph, Prof. Lessig goes on to say this does not make him opposed to the concept of network owners charging end customers different fees on a value scale -- essentially saying that AT&T, Comcast, and others should have the right to enable economies of scale on their networks.

But perhaps in an attempt to fill out a story that would otherwise have only consumed three paragraphs, the WSJ this morning suggested that Prof. Lessig's most recent advice, including to Pres.-Elect Obama, that network operators be permitted to charge end customers fair but scalable rates, was evidence that he had "shifted gears," perhaps as a compromise that could grease the fast track for a federal appointment.

That suggestion infuriated the Professor, who responded on his personal blog early this morning, "The article is an indirect effort to gin up a drama about a drama about an alleged shift in Obama's policies about network neutrality. What's the evidence for the shift? That Google allegedly is negotiating for faster service on some network pipes" -- a fact which, again, has been part of the public record for years.

A common tactic for political advocates, most notably on talk shows, when faced with an uncomfortable question, is to rephrase the question and then answer that one. (Comedienne Tina Fey, in her role as Alaska Gov. Sarah Palin, demonstrated that technique in a now-classic send-up of the last Vice Presidential debate.) So this morning's response to the WSJ article from Google itself skillfully attempts to invoke that method, in a way that could only spark more skepticism about a subject that may otherwise have been left effectively diffused and rendered moot by Prof. Lessig.

"Some critics have questioned whether improving Web performance through edge caching -- temporary storage of frequently accessed data on servers that are located close to end users -- violates the concept of network neutrality," reads this morning's statement from Google counsel Richard Whitt. "As I said last summer, this myth -- which unfortunately underlies a confused story in Monday's Wall Street Journal -- is based on a misunderstanding of the way in which the open Internet works."

The technique of edge caching enables systems that cache high-volume, high-traffic content to be located more closely, in the Internet geography, to the end users. The more they request the content, the more closely those caches are positioned to the user, expediting transfer time. Whitt says that Google has been talking with ISPs about being able to collocate its own servers there, in deals that would make YouTube content conceivably closer to end users, but which would otherwise not be exclusive -- and, once again, which wouldn't be news to anyone.

Nonetheless, it's almost impossible not to notice that the WSJ story did not mention edge caching at all, focusing instead on the type of "fast-lane" provisioning that was the subject of the stalled 2006 legislation.

Last September, a bill authored by Sen. Ed Markey (D - Mass.) -- an outspoken opponent of the 2006 "fast-lane" bill -- calling for ISPs to provide the government with enhanced geographic data on their broadband service, passed Congress. Now, ISPs will be required to provide information on their services at the nine-digit ZIP code level, with the likely result being a so-called "broadband map" that could reveal whether carriers and content providers have already made deals that have never been disclosed.

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