I've said it before and I'll say it again: P2P filesharing might be the bogeyman du jour but streaming video is both the real bandwidth hog and the real target of the ISPs' bandwidth-throttling initiatives. In the wake of the FCC's landmark order reprimanding Comcast for its BitTorrent blockade, ISPs have been scrambling to figure out how to protect themselves from the coming 'exaflood,' without running afoul of the FCC. Comcast, for example, has rolled out 250GB bandwidth caps, in order to curb "excessive use" of the company's "unlimited" broadband Internet services. Given that Comcast is a provider of broadcast, on-demand and even streaming online video and given the fact that streaming video has been shown to account for some 35 percent of all traffic during peak times, the anticompetitive implications here should be fairly obvious. What's that you say, they're not quite obvious enough? Well, worry not friend, AT&T has gone ahead and made things even more clear.
While digging through AT&T's updated Terms of Service (TOS) for broadband customers yesterday, Gizmodo's Matt Buchanan turned up the following, vaguely-worded tidbit (emphasis mine):
In order to provide a consistently high-quality video service, AT&T Uverse High Speed Internet throughput speeds may be temporarily reduced when a customer is using other U-verse services in a manner that requires high bandwidth. This could occur more often with higher speed Internet access products. It may be necessary, for some AT&T High Speed Internet users, for AT&T to set a maximum downstream speed on a customer line to enhance the reliability and consistency of performance.
To clarify, I take "other U-verse services" to mean AT&T's U-Verse-branded telelphony and television services--both of which are delivered over IP just like your Internet packets. So, what does this mean? Essentially, it means that if your connection is deemed to be using too much bandwidth, AT&T reserves the right to reduce--either temporarily or permanently, through the use of individual caps--the speed of your Internet connection in order to keep its U-Verse television service humming along.
"But what if I just keep my TV on in the background while I work and would prefer that my television signal experience a hiccup rather than my Internet connection?" you ask. "Shouldn't I get to choose which of the two is prioritized?" AT&T doesn't think so. Even though both services are essentially delivered over the same "pipe," AT&T seems to think that its television service should be prioritized whenever necessary, even at the expense of Internet connection speeds. Why?
Because the Internet and AT&T's U-Verse TV service directly compete with each other for your eyeballs. Just think about the wealth of video content available online: from streaming sites like YouTube, Hulu, Amazon's Unbox and Netflix to movie download sites like iTunes. With all the video content available online nowadays, you're probably less likely to flip on that TV than you would have been a few years ago.
Therein lies the problem. You see, AT&T really needs you to turn on that TV. The company has invested heavily in its VDSL infrastructure in order to offer U-Verse services and now needs to demonstrate a return on that investment to its shareholders. As the company has hinted at in press releases, it's quite excited about the advertising opportunities that U-Verse provides--opportunities that will likely range from the familiar (ads displayed in the on-screen programming guide) to the mysterious and vaguely sinister (Project Canoe-style behavioral ad targeting). If your Internet connection is slowed to a crawl, you're probably a lot more likely to put down the mouse and pick up the remote, which means more potential money in the bank for AT&T.
AT&T's motivations aside, the network management techniques enabled by the company's new TOS raise a fundamental question: should AT&T be allowed to prioritize its own content over the content of others when both travel over the same IP network? Also, isn't this kind of behavior strictly forbidden in the AT&T/BellSouth merger agreement (PDF link)? As you will recall, the merger agreement states:
AT&T/BellSouth also commits that it will maintain a neutral network and neutral routing in its wireline broadband Internet access service. This commitment shall be satisfied by AT&T/BellSouth's agreement not to provide or to sell to Internet content, application, or service providers, including those affiliated with AT&T/BellSouth, any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's wireline broadband Internet access service based on its source, ownership or destination."
Isn't AT&T privileging its IPTV service over other services that operate over IP? Well, yes. So isn't the company running afoul of the merger agreement? Well, no. As Tim Wu points out, the agreement contains a carve-out for IPTV:
[IPTV] services are IP in name only. They are in practice and architecture a direct competitor to cable television services. These services use only the private infrastructure built by AT&T, and do not rely on the public Internet as described by IP addresses. Hence the exclusion of private IPTV services should be considered less controversial. In fact, were the Network Neutrality rules to apply to IPTV, it is doubtful that AT&T could offer its competing cable television services, leaving the cable market with even less competition.
While AT&T's network management plans might still violate the FCC's four principles (PDF link)--depending on how you read them, of course--it looks like the company is safe for now, at least as far as the AT&T/BellSouth merger agreement is concerned. That is, unless the four principles trump the terms of the merger agreement...but that's for the FCC, the courts or a higher power to decide.
Regardless of whether or not AT&T's network management plans are legal, these changes to the company's TOS raise a number of interesting questions. Should IPTV services be exempt from rules governing other services that share the same pipe? Should AT&T be allowed to partition bandwidth in the same way that Comcast and Verizon do, in order to assure a quality-of-service for its video offerings? Unfortunately, I don't have the answer to either of these questions. But in a world where "Internet Protocol" is increasingly becoming a misnomer, I think they're certainly questions worth asking.
UPDATE: After this blog post was first published, an AT&T rep contacted Gizmodo to offer up a clarification of the TOS language in question. Take it away, Giz:
So here's what AT&T just told us: "We’re not referring to the use of high-bandwidth activity from other services, like AppleTV, we are saying that customers who subscribe to our higher-bandwidth tiers could see slowdowns in their Internet throughput." In other words, what this actually means is you won't be slowed down for downloading a whole lot, but if there's network congestion generally speaking, your bandwidth's going to get squeezed, and it's more likely to happen if you've got one of the faster U-Verse broadband packages. People that have a (s)lower-bandwidth tier won't see this as often because their connection is already pokey. AT&T says the "vast majority" of people will never notice.
What does this mean? It seems that AT&T updated their TOS just to inform their users that if they use a lot of bandwidth, their network connection could experience some slowdown as a natural result of congestion. Why on earth would AT&T update its TOS just to include a fact that should be obvious to anyone with even a basic understanding of how networks work? The non-cynic might say that the company is simply managing user expectations--that is to say, protecting itself against complaints of "I paid for a 10 Mbps downstream connection and I'm only getting X". However, the cynic might say that AT&T is backpedaling after the blogosphere discovered what was supposed to be a clandestine change to its TOS.
Regardless of which is true, I think that the questions raised in the above post are still worth asking--whether or not AT&T ever planned to prioritize its IPTV packets over Internet packets in the first place.
the fast lane has arrived,
the fast lane has arrived, and contrary to claims by opponents of net neutrality, it isn’t there to make sure “critical” content like VOIP or medical records make it through uninterrupted … after all, this is entertainment television which deserves a first class seat among the winners and losers chosen by the monopoly-duopoly broadband complex
notice that AT&T doesn’t clearly state in the TOS that the reason for degrading the service quality of other U-verse service is congestion … only that it’s for the benefit of video service, which leaves wide open the intention to degrade one over the other as an outright separation of content into fast and slow lanes unrelated to constrained bandwidth capacity - itself already an artificial shortage
AT&T’s threat of “it may be necessary … to set a maximum download speed” opens up all the non-transparent, arbitrary cloak and dagger sniping of bandwidth use just encountered with Comcast … for starters, what was that they sold customers in the first place if not a maximum burst rate of bandwidth - so that maximum apparently is to be replaced at will with a new, “lower maximum” which appears unannounced from nowhere, in any amount, on any given day, like a Comcast threat that provides no measure of what was exceeded or to be undertaken to avoid cancellation of service
as Comcast and Time Warner embark on a defacto fast-slow lane division using capped-metered gegabytes, where the bandwidth may be the same but the gegabyte-volume limits effectively force favored content into fast lanes, AT&T is achieving the same outcome through true bandwidth manipulation (using “too much” bandwidth is fundamentally different than using “bandwidth too much”)
it’s not at all clear that the phrase “any service that privileges, degrades or prioritizes any packet transmitted” results in net neutrality, particularly in the form of preventing fast-slow lanes (absent the carve-out of U-verse video), if for no other reason than it can’t represent neutrality unless it applies within a particular quality of service like a given bandwidth tier, itself which must be unbundled from content to achieve the desired neutrality
different content that ends up in different bandwidth tiers is presumably the result of neutral choices by users, but capped-metered gegabytes will push content favored by providers into higher tiers (or off broadband entirely) and still qualify as neutral
likewise, when actions like that of AT&T are no longer carved out and reveal clearly intended fast-slow lanes, they too will likely argue that the explicit bundling of content with a particular bandwidth speed is consistent with net neutrality because each speed is accessible to anyone on the same grounds, i.e. any producer from the supply side of video who wants on the U-verse tier would be charged an exhorbitant, prohibitive fee (but equally accessible) designed to favor U-verse, the same way that Comcast and Time Warner intend to use overage charge penalties for capped gegabytes in excess of a 1,000 percent unit price increase on the demand side to favor selected content