FCC orders Google to Respond to Net Neutrality Complaint

Once the biggest backer, now a potential violator

For years, Google was the most active corporate supporter of federal Net Neutrality regulations prohibiting broadband providers from controlling what apps or devices Americans use on the internet services they pay for.

But now Google has been ordered by the FCC to formally answer a complaint from a Google Fiber pre-subscriber that it’s violating Net Neutrality rules.

At issue are rules in the Terms of Service for subscribers to the ultra-fast Google Fiber project, which delivers Gigabit internet (about 100 times faster than the average 2012 broadband connection) to residents of Kansas City, for only $70 a month.

In the fine print, Google bans subscribers from a range of activities, including using “any type of server.”

Your Google Fiber account is for your use and the reasonable use of your guests. Unless you have a written agreement with Google Fiber permitting you do so, you should not host any type of server using your Google Fiber connection, use your Google Fiber account to provide a large number of people with Internet access, or use your Google Fiber account to provide commercial services to third parties (including, but not limited to, selling Internet access to third parties).

Douglas McClendon filed a complaint contesting the rules to the FCC in 2012 when he was a Fiber “pre-subscriber” living in Kansas. After some odd procedural missteps, the FCC sent McClendon’s 53-page complaint on to Google on June 24 as an “informal complaint.”

That notice requires Google to reply to McClendon and the FCC by Monday, July 29. The FCC can then, if it chooses, open a formal complaint and investigate on its own.

McClendon, a software engineer, points out in his rambling complaint, that the Terms of Service prohibit a Google Fiber customer from running lawful and non-disruptive devices.

Google’s ToS bans running an email server, hosting a Minecraft server, using a Raspberry Pi to monitor a security camera, using a Slingbox to place-shift TV, or having a home media hub accessible remotely, among thousands of other possible uses of “servers” by internet customers.

Furthermore, he argues, given the interest in the so-called “internet of things”, where everything from your thermostat to your trash can has an IP address and communicates online from your home, the ban against running a server is harmful to the very kinds of innovation that are trumpeted by Google employees such as net pioneer Vint Cerf.

Rambling or not, McClendon is right. Google’s ToS is exactly the kind of regulation that net neutrality rules were meant to stop.

In the plain language posted to the Federal Register in September 2011, the FCC decreed that blocking or impeding of apps or devices by land-based broadband providers was unlawful and harmful to an open internet:

Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices;

Or as McClendon puts it:

All I want from ISPs is a fair share of network resources. And by fair, I mean that I want my usage of the traffic to be balanced with others, but most certainly in an application and service agnostic way. My upstream traffic as a web or game server should be treated no differently than each of my neighbors total upstream traffic, that may include more video uploads to YouTube, or live video streams to Skype or Google Hangouts.

The essence of the spirit and motivation for Network Neutrality rules, at least as far as I understand the issue, is entirely about not letting networks give advantage or preference to any particular destination or type of application or service, so as not to make the network operator the chooser of winning and losing applications, services, and destinations on the internet. By disallowing hosting servers in their Terms of Service, Google Fiber is getting to choose all residentially hosted innovative business’s servers and services as losers, instead of treating their upstream and downstream network traffic on equal terms with their neighbors.

Ironically, Google started the Fiber project to put a stick into the eye of the nation’s incumbent ISPs, including Verizon, Time Warner Cable, AT&T and Comcast. Partly the move was economic, trying to force the incumbents to offer faster service at lower prices. But the move was also considered a way for the “Don’t Be Evil” Google to show the nation’s ISPs how to play nicely with customers and online services.

Google has long been a natural foe of ISPs, which are jealous of its ad revenues, and which want to exert more control over the data pipes and extract more revenue from online services.

ISPs fought against net neutrality rules, arguing they should have the right to block certain kinds of traffic and charge premiums to services like Netflix and YouTube.

Google and Verizon disastrously teamed up in the summer of 2010 to propose a compromise, leaving wireless mostly unregulated. While that framework ended up largely being adopted by the FCC, Google got a black eye over the proposal, while Verizon is suing to stop the FCC rules.

But, it turns out in trying to take on the ISPs to scare them into building out infrastructure and acting like good internet citizens, Google adopted their logic.

In fact, Verizon’s terms of service for landline broadband ban “any type of server” and using your connection to run a Wi-Fi hotpot (neither of which have any justification in the Net Neutrality rules). That’s despite promising on a less legally dense page that:

We will not prevent you or other users of our service from sending and receiving the lawful content of your choice; running lawful applications and using lawful services of your choice; or connecting your choice of legal devices that do not harm the network or the provision of Internet access service, facilitate theft of service, or harm other users of the service. (emphasis added)

Net Neutrality regulations do give ISPs leeway to manage congestion on their networks, but they have to do so transparently and can’t be biased against certain kinds of traffic. They may not single out filesharing traffic for blocking or throttling — but they can throttle heavy users if the pipes get congested.

But the rules about congestion management say nothing about ISPs differentiating between commercial and non-commercial uses.

I asked Google on Monday to comment on whether the Fiber rules adhere to the letter and spirit of Net Neutrality.

I also asked whether it was true, as reported anonymously in a Slashdot comment, that Larry Page expressed his unhappiness with the policy at an all-company meeting last fall, saying that Google’s early success was made possible by being able to hook a server up to the Stanford network where he and co-founder Sergey Brin were graduate students.

A Google Fiber employee called back to defend its policies but declined to say anything on the record.

But it does have to respond to McClendon and the FCC by Monday.

Photo Credit: kainet: cc-licensed.

Ryan Singel is a recovering reporter and editor who runs Contextly, the best damn editorial content recommendation system for publishers and content marketers.