Google's Lame Defense of its Net Neutrality Pact

21 Comments

Google has finally responded to widespread criticism of the framework it developed with Verizon for addressing the issue of net neutrality. Unfortunately, Google’s blog post on the matter borrows heavily from the semantic gymnastics practiced by the telecommunications industry Google has cozied up to.

Google Hasn’t Sold Out

The post explains that Google (s goog) hasn’t “sold the tech industry out,” but instead, was engaged in a form of realpolitik by getting in bed with Verizon (s vz) because nothing was getting done at the FCC and in Congress:

But given political realities, this particular issue has been intractable in Washington for several years now. At this time there are no enforceable protections — at the Federal Communications Commission or anywhere else — against even the worst forms of carrier discrimination against Internet traffic.

With that in mind, we decided to partner with a major broadband provider on the best policy solution we could devise together. We’re not saying this solution is perfect, but we believe that a proposal that locks in key enforceable protections for consumers is preferable to no protection at all.

That’s true, and that’s why last week, I called on FCC chairman Genachowski to man up and start moving the debate over broadband reclassification forward while also taking a lead on network neutrality. However, Google’s defense of itself is unconvincing. Go read the article in full, but here are the high points:

Wait, What About Wireless?

Google says the compromise was GOOD even if wireless isn’t included, because until this point, there was no regulation about network neutrality anywhere. It’s true that the FCC and members of Congress have tried for years to get network neutrality rules passed, but even after the Google-Verizon deal, there are still no network neutrality rules because this agreement isn’t law. Verizon will voluntarily abide by these rules, but it’s also an ISP with some of the fastest and fattest pipes around, so its concession is pretty trifling.

As for the selling out on wireless net neutrality, Google notes that discrimination on wireless is less likely because wireless is a more competitive industry, and because carriers are starting to allow open devices on their networks. It also notes that wireless providers have capacity constraints that make network management more important for wireless operators. I concede the last point, but a variety of factors from the amount of spectrum owned by Verizon and AT&T (s T) for 4G services, as well as device availability and high switching costs, make the nation’s wireless carriers less competitive than one might think. Additionally, open devices on networks are good, but Google knows that discrimination can still occur at the network level — and is likely to — regardless of what device is attached. If AT&T wants to block YouTube on its wireless network, it can, and phones, computers and anything else would be affected.

Welcome to the Best-Effort Internet

When it comes to the advanced network services carve-out (also known as managed services), Google defends its capitulation by pointing out that the compromise framework has safeguards:

  • First, the broadband provider must fully comply with the consumer protection and nondiscrimination standards governing its Internet access service before it could pursue any of these other online service opportunities.
  • Second, these services must be “distinguishable in purpose and scope” from Internet access, so that they cannot over time supplant the best effort Internet.
  • Third, the FCC retains its full capacity to monitor these various service offerings, and to intervene where necessary to ensure that robust, unfettered broadband capacity is allocated to Internet access.

The first two are so vague as to be almost useless in defending this carve-out. Whose protection is Google talking about in the first place? The ISPs’? The government doesn’t have all that many standards; that’s part of the problem. In the second item — any time someone has to quote their agreement verbatim in defending it there’s a problem — the quote indicates those words are likely the loophole that ISPs will drive their alternative Internet through. I mean, do you want the web or the best-effort web? Seriously.

The third item touches on something Google never addresses in its entire statement, which is the fact that the FCC is rendered fairly powerless by this agreement. So when Google says the FCC “retains its full capacity to monitor these various service offerings,” I’m not getting a sense of security so much as wondering what a powerless FCC can actually do about any problems that arise.

The Great Android Comb Over

Now we get to the fun parts, where Google insists that this isn’t a business deal and this isn’t about Android. There it’s telling a version of the truth. This isn’t a business deal. It’s a policy recommendation. Google is too big to ever have to pay off an ISP to get its content to users, so it has no need to make a business deal. However, other startups or smaller companies may not be so lucky. As for Android… Fine, Google, it’s not about Android. But here you sound like a balding man with a comb-over insisting he’s not losing his hair, and this post doesn’t really change my mind that Android is your comb-over.

The final myth Google wants to debunk is that this compromise isn’t about two corporations legislating the future of the Internet.

Our two companies are proposing a legislative framework to the Congress for its consideration. We hope all stakeholders will weigh in and help shape the framework to move us all forward. We’re not so presumptuous to think that any two businesses could — or should — decide the future of this issue. We’re simply trying to offer a proposal to help resolve a debate which has largely stagnated after five years.

Here Google is playing the kind of semantic gymnastics that lobbyists deploy so well. In a world where corporate interests (and sometimes their actual lobbyists) write legislation, Google isn’t merely an interested party proposing an idea for network neutrality; it’s a powerful influencer suggesting to overworked and under-informed legislative aids how laws should be written. Unless the FCC takes back control of this process, or Congress stymies any legislative effort because its members are reluctant to touch a hot-button issue during a mid-term election year, Google and Verizon’s compromise will influence policy in a way that common citizens cannot.

Google closes by saying that it hopes “this helps address some of the inaccuracies that have appeared about our proposal.” I would like to offer a similar closing on this particular post. I hope this helps address and clarify some of the semantic sleights of hand or obfuscations that have appeared in Google’s defense, so folks in Congress, those reading about it on the web, and those inside Google who want to believe that this isn’t a selling out of Google’s defense of the open internet can understand what’s really being said.

Ironically, Google may have thrown its reputation under the bus with this whole effort, only to see Congress stand by and do nothing because of the coming mid-term elections. Or perhaps Congress will take the framework and bastardize it to an extent that Google will rue the day it tried to move the ball forward on net neutrality at all. Politics are messy, and Google is learning this firsthand.

Related GigaOM Pro Content (sub req’d): The New Net-Neutrality Debate: What’s the Best Way to Discriminate?

21 Comments

Tristan Thomas

You know everyone is painting an evil picture on Google when most of us don’t understand whats really going on. All Google is saying is that the internet is young and that the government should not place any restrictions on it as of yet.

Google truly does no evil. Or do they? There is this one article I read at http://tech-senses.com/ called called “How doing Business With Google Almost Killed A Company”. That is probably the most evil thing Google has ever done.

deesquig

So google and verizon have taken a lead stand, where is the response legislative response by internet users? And if it’s out there, where is the point by point analysis and commentary? Corporations have as much power as the public gives them, if we want fair and just net control, it must be influenced by us.

patricia

Google is a telecom company because it owns internet infrastructure. It didn’t give in to Verizon or sell anybody out. It has to operate like a telco in order to make sure it can do what it wants to do with its internet infrastructure.

Mobile is not relevant to the future because the platform will be different — it will be delivered by the internet, not the mobile, platform. They are not the same. No need to do anything with the mobile platform — its use will be minimized within five years.

Paul Sweeting

Without taking a position one way or the other on the merits of the case, I do think it’s important to recognize the true legal and political realities on the ground here. Currently, the FCC has no legal authority to impose any sort of neutrality requirement. It attempted to do so in 2008, under its so-called “ancillary authority” but the Federal Circuit Court of Appeals said the agency’s ancillary authority gave it no such power.

At that point, the FCC had three choices.

1) It could petition the Supreme Court to review the appeals court decision, but given that the Federal Circuit Court was created specifically in part to hear these kinds of regulatory challenges, the Supreme Court doesn’t review many of them. Even if it did in this case, moreover, the current pro-corporate makeup of the Court made a successful outcome for the FCC highly unlikely.

2) Congress could establish a net neutrality requirement by legislation, either directly or by giving the FCC express authority to mandate it by amending the Communications Act. Given that it currently takes 60 votes in the Senate to do anything, including renaming a post office, that’s a very long shot indeed. Moreover, there’s a fair chance that the chairs of the committees that oversee the FCC on at least one side of Capitol Hill will swap parties this year. There is not the slightest chance that a GOP-led committee will give any federal agency any new power to regulate anything for a very long time. So the Congressional option is a major crap shoot.

3) The FCC could attempt to reclassify broadband access as a regulated telecommunications service under Title II of the Communications Act. Any move to do so, however, would certainly be challenged in court on grounds that the FCC had was acting arbitrarily. However that challenge came out it would take a minimum of two years to resolve. Chairman Genachowski’s reclassification proposal, moreover, met with major push back from both sides of the aisle on Capitol Hill. The FCC is technically an independent agency, but Congress controls its budget and can make life exceedingly miserable for a chairman who displeases it.

In short, there is currently no legal foundation for requiring net neutrality. Any attempt to establish that foundation is either politically fraught or legally dubious, or both. No amount of manning up by Genachowski or the administration is going to change that reality.

The only thing that will break the logjam is for the various parties to cut a political deal. For better or worse, that’s the backdrop against which Google and Verizon are operating.

Richard Bennett

Your conclusion is absolutely correct, Paul. The link bait “analysis” about “selling out” and “manning-up” is painfully naive.

eideard

The FCC could take the fight to Congress, take the lead in doing so. Not exactly unheard of in American politics.

Google could do the same – including pressing the FCC to do so.

There are occasions when expedient solutions are useful, needed – in short-term business practices. This is not one of them.

Opportunism is not especially productive in the long-term.

Kevin Walsh

It should be pretty clear that Google finally came to the realization its interests were more closely aligned to those of broadband service providers than they are to interest groups clamoring for net neutrality regulations. Google, like broadband service providers, is a profit-seeking organization trying to balance the interests of the only two constituencies that matter—shareholders and customers. Net neutrality interest groups (Freepress, et al) are rent-seeking organizations claiming to champion the interests of the consumer but actually beholden only to their funding sources (an area that transparency does not extend to).

Yes, this creates a bit of PR discomfort for Google, but growing up always does and the faster they get past it the better.

Kent England

I respect GigaOM and I’d like to ask some questions to promote a better understanding of this complex issue:

1) What does it mean that the presumption that traffic prioritization is discrimination could be rebutted? Rebutted to whom? Does that last phrase invalidate the entire item on non-discrimination?

2) Does the avoidance of transparency for wireless services mean that carriers can continue deceptive practices such as advertising unlimited data plans that are actually limited?

3) Are network management practices to be determined by the IETF? Good. Or will some new carrier-centric body decide? Bad.

4) Can additional online services be used to crowd out best-effort, non-discriminatory Internet traffic? How can this possibility be proscribed?

5) “In addition, the FCC would be required to complete intercarrier compensation reform within 12 months.” I believe this single sentence is the reason that Google and Verizon are making this agreement. Inter-carrier compensation is at the heart of competition for access services. Depending on what this means, the best-effort Internet could become closed to further competitors by the erection of insurmountable obstacles to interconnection for new entrants. No new broadband providers, including nascent public metropolitan networks built by city governments. No new YouTubes with their huge traffic flows. No new Akamais for distributed content delivery. Perhaps no Akamais whatever.

I direct your recollection (or research for you younger readers) to the Telecommunications Act of 1996 which started a competitive market for local carriers (CLECs). Dominant carrier lobbyists (AT&T and Verizon) gutted that law and destroyed every one of the CLECs. There is no reason to think that they won’t do the same thing to any Net Neutrality Act of 201x.

Kin

It’s disappointing, but net neutrality never had a decent chance. The telecom companies spend loads on lobbying, if even Google think the fight is too big for them, then it’s lost. No other company has the money and much an incentive to fight for net neutrality. Facebook can say whatever they want, that’s just an opinion unless you do something about it at washington.

Mike Franklin

Love ’em or hate ’em, Google is everything most of us have come to recognize of bloated, conglomerated private enterprise. It happens to nearly every corporation that is allowed to slug down competitors and peripherals like a cold beer on a hot day.

We see it all daily in the Walmarts and the AT&Ts, etc. who have grown so large that one or a hundred or even a thousand unhappy consumers no longer means much. They just do pretty much as the please.

Google feels it will survive and prosper whether it totally screws up its news aggregate service with some gawd-awful rebuild, or hops in bed with the worst censors China has to offer or even in this case, betrays a good number of those who made it a mega-sloth.

‘Do no evil’ is so 90s… not to mention that some forms of evil are so profitable.

dave

Ludicrous conspiracy theories as always. But then, I guess you just say what Verizon tells you to say.

Nick

This is absolutely ridiculous reporting…this is the kind of garbage that makes me want to stop reading GIGAOM!

Glenn Fleishman

Google wrote: “this particular issue has been intractable in Washington for several years now…”

Which is insanely disingenuous. Nearly actionably so. Several years would sweep in the Bush Administration, which had only passing interest in net neutrality, and was mostly focused on ensuring media consolidation; and the first 18 months of the Obama administration, in which a new FCC chair came in, pushed out NN rules, backpedaled, and is still moving forward.

Jan Dawson

Hi Stacey,

That was quick! What did you mean by this phrase:

I mean, do you want the web or the best-effort web?

Which do you think we have now? Which would we have if strict net neutrality were enforced? Seems to me the best-effort web is all we can have under net neutrality, since nothing better than best efforts on all packets is allowed. No?

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