Sandvine has reviewed the Federal Communication Commission’s (FCC) December 23, 2010 Report and Order (the Order) related to Preserving the Free and Open Internet. In short the Order appears to stabilize the environment for deploying Sandvine’s Network Policy Control solutions in the United States. These new rules are not a dramatic change from the prior four Net Neutrality principles, from the FCC’s broadband Policy Statement of 2005, which require open access to lawful content, applications, devices and competition, all subject to reasonable network management.
Notably, for Sandvine, the Order appears to preserve an environment in which deployment of Sandvine’s Network Analytics, Fairshare, Usage Management and Quota Management policy applications can continue to thrive. Other significant aspects of the Order are highlighted in the sections below. Sandvine continues to provide solutions to service providers globally, in support of their compliance with their respective regulatory and legislative environments.
The Rules in Brief
The basic rules require:
1. Transparency of traffic management practices, performance characteristics and the commercial terms of service. Mobile broadband providers must also disclose third-party device and application limits and any relevant criteria for use of such third-party offerings.
2. No blocking of lawful content, applications, services, or non-harmful devices. A less onerous no blocking rule applies to mobile broadband providers, which may not block access to lawful websites and may not block applications that compete with their own video or voice telephony services.
3. No unreasonable discrimination such as to favour one’s own application offerings over competitive offerings. The FCC acknowledged that some discrimination is beneficial. They also noted that paid prioritization is likely to be unreasonable, but will be subject to case-specific review. This rule does not apply to mobile providers.
4. All of the rules are generally subject to Reasonable Network Management.
Relevance to Sandvine’s Solution Portfolios
While the Order does not address Business Intelligence directly, gathering usage data about a broadband Internet access network would seem to be a necessary first step in effecting Network Policy Control and assessing any reasonable network management practice. Without this data there would be no way to determine the reasonableness of any network management technique. It certainly appears that the gathering of network data is not precluded in any way by the Order, and, to the contrary, may be a necessary pre-requisite to assessing compliance with the Order.
Not surprisingly given the history of the debate, the Order deems an application-agnostic approach, such as the one that Sandvine introduced to the market with its Fairshare solution, as ‘likely reasonable’. Paragraph 73 of the Order states:
“Differential treatment of traffic that does not discriminate among specific uses of the network or classes of uses is likely reasonable. For example, during periods of congestion a broadband provider could provide more bandwidth to subscribers that have used the network less over some preceding period of time than to heavier users. “
The Order does not take a position on whether application-specific Traffic Optimization techniques are inherently reasonable or not, presumably leaving the issue open to case-by-case analysis. The Order seems to anticipate the deployment of such techniques, as in the Transparency discussion (paragraph 56) the Order requires service providers to disclose:
“…whether and why the provider blocks or rate-controls specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications.”
The Order is clear that content, applications, services and non-harmful devices cannot be impaired or degraded to render them effectively unusable, unless doing so can be deemed necessary for reasonable network management.
The Order also seems to allow the introduction of tiered or differentiated services offerings, such as those supported by Sandvine’s Quota Management and Usage Management solutions. For example, the Order states (paragraph 72) that service tiers based on subscriber usage levels are reasonable:
“Some commenters suggest that open Internet protections would prohibit broadband providers from offering their subscribers different tiers of service or from charging their subscribers based on bandwidth consumed. We are, of course, always concerned about anti-consumer or anticompetitive practices, and we remain so here. However, prohibiting tiered or usage-based pricing and requiring all subscribers to pay the same amount for broadband service, regardless of the performance or usage of the service, would force lighter end users of the network to subsidize heavier end users. It would also foreclose practices that may appropriately align incentives to encourage efficient use of networks. The framework we adopt today does not prevent broadband providers from asking subscribers who use the network less to pay less, and subscribers who use the network more to pay more.”
The Order further states that broadband offerings which give users choice of their own traffic priorities (paragraph 71) are reasonable:
“Thus, enabling end users to choose among different broadband offerings based on such factors as assured data rates and reliability, or to select quality-of-service enhancements on their own connections for traffic of their choosing, would be unlikely to violate the no unreasonable discrimination rule, provided the broadband provider’s offerings were fully disclosed and were not harmful to competition or end users. We recognize that there is not a binary distinction between end-user controlled and broadband-provider controlled practices, but rather a spectrum of practices ranging from more end-user controlled to more broadband provider-controlled. And we do not suggest that practices controlled entirely by broadband providers are by definition unreasonable.”
The Order explicitly recognizes the ability of service providers to take action with respect to harmful network traffic and to utilize solutions such as the Network Protection solution offered by Sandvine (paragraph 88):
“Broadband providers may implement reasonable practices to ensure network security and integrity, including by addressing traffic that is harmful to the network.”
In a footnote that describes traffic that is harmful to the network, the Order identifies spam, botnets, and distributed denial of service attacks.
Additionally, the Order’s Transparency requirements (paragraph 56) state that certain performance characteristics of service offerings be disclosed, such as the “expected and actual access speed and latency, and the suitability of the service for real-time applications.” Certain applications in Sandvine’s Operations Management suite could help service providers satisfy this requirement.
Reasonable Network Management and Transparency
Reasonable Network Management
The Order defines reasonable network management (paragraph 82):
“A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.”
So, different techniques may be deployed in different networks, thereby recognizing the architectural differences between fixed and mobile networks, for example. In the same paragraph, the Order further states:
Legitimate network management purposes include: ensuring network security and integrity, including by addressing traffic that is harmful to the network; addressing traffic that is unwanted by end users (including by premise operators), such as by providing services or capabilities consistent with an end user’s choices regarding parental controls or security capabilities; and reducing or mitigating the effects of congestion on the network. The term “particular network architecture and technology” refers to the differences across access platforms such as cable, DSL, satellite, and fixed wireless.
In paragraph 92, the Order recognizes that other practices not included in the definition above may also be considered a “reasonable network management practice” and that broadband service providers “should have the flexibility to experiment, innovate and reasonably manage their networks.”
The Order further recognizes that “appropriate and tailored” in the definition of reasonable network management does not rise to the same “narrowly and carefully tailored” standard as previously used by the FCC’s Comcast Network Management Practices Order in 2008. The FCC expressly acknowledged that this previous standard was unnecessarily restrictive (paragraph 85). In the same paragraph the Order states that service providers “need not necessarily employ the most narrowly tailored practice theoretically available to them.”
Service Providers must be aware of the detailed Transparency requirements of the Order, most notably for disclosure of Network Policy Control practices in respect of (Paragraph 56):
- Congestion Management: If applicable, descriptions of congestion management practices; types of traffic subject to practices; purposes served by practices; practices’ effects on end users’ experience; criteria used in practices, such as indicators of congestion that trigger a practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate.
- Application-Specific Behavior: (as discussed under Traffic Optimization above)
- Device Attachment Rules: If applicable, any restrictions on the types of devices and any approval procedures for devices to connect to the network.
- Security: If applicable, practices used to ensure end-user security or security of the network, including types of triggering conditions that cause a mechanism to be invoked (but excluding information that could reasonably be used to circumvent network security).
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