Scott Jordan
Department of Computer Science University of California, Irvine
  Device Attachment

A portion of the debate over net neutrality centered on whether subscribers should have the right to use devices of their choice on broadband Internet services to which they subscribe. This type of "any device" principle dovetailed with a long history of debate over whether consumers should be able to attach the devices of the choice to any network service to which they subscribe.

Telephones: Subscribers of wired telephone service have a right to attach non-harmful devices of their choice to their telephone service, due to FCC actions during the 1960s and 1970s. These FCC acctions led to a commercial market for telephones, answering machines, and modems. However, cellular telephone service providers have sometimes claimed that cell phones are part of their network and that consumers should have no such right.

Set-top boxes: Congress, in the 1996 Communications Act, also required the FCC to assure the commerical availability of equipment consumers could use to access cable television service. In 1998, the FCC issued an Order establishing the right of consumers to use the device of their choice on cable television services to which they subscribe, and requiring cable television providers to make available hardware that implements the security functions of the service so that unaffialiated equipment manufacturers could offer consumers competitive set-top boxes. In 2003, the FCC issued an Order allowing the use of CableCARDs to perform such security functions. However, since then CableCARDS were never upgraded to allow consumer access to on-demand programming, and thus a consumer's ability to obtain and use the device of their choice to access cable television service has degraded.

Internet: The FCC's 2010 Open Internet Order prohibited ISPs from blocking any non-harmful device a consumer wishes to connect to the fixed broadband Internet service to which they subscribe. But it did not guarantee a similar right to consumers of mobile broadband Internet services, such as those used by smartphones. And that rule was struck down in 2014 by the United States Court of Appeals.

In computer science, we have long recognized that the telephone network, the cable television network, the cellular network, and the Internet are merging. These incompatible public policies over the rights of a consumer to attach the device of their choice must therefore be reconciled as the network merge. This inspired our research on the topic.

 

Our Research on Device Attachment

We propose that users of all communication services should have a right to attach non-harmful devices of their choice to receive communication services to which they subscribe.

We analyze both the technologies and legal models for device attachment to telephone networks, the Internet, video networks, and cellular networks. We present a set of rights that users should have, and a set of rights that providers should have, and define the scope of the application of these rights. We consider where and how a service provider’s network connects to a user network or user device, and propose legal requirements for attachment of devices to provider networks. We consider management of devices, and propose limited rights of service providers to control specific elements of user devices. We consider traffic management, and propose limitations on integration of devices with service plans, a definition of reasonable traffic management, and a transparency principle. We briefly address a communication provider’s right to forbearance from regulations unnecessary to ensure user rights. Then, we revisit the technologies and regulatory models and discuss how our proposed legal framework would affect the services offered by each.

This paper is intended for people with a technical background in networking:

User and ISP Rights of Device Attachment and Device Management (with G. Shaffer), ACM Transactions on Internet Technology, vol. 13 no. 2, December 2013, pp. 6:1-6:20.

We then propose a law that ensures this right in all types of communication networks, while simultaneously ensuring service providers the right to reasonable network management.

We explore the issues that must be resolved in order to create unified regulation of device attachment in converged communication networks. It is apparent that it is not sufficient to merely state an “any device” rule without substantial development of further statutes or regulations that detail what this means. We posit that these issues include demarcation of the connection point between a provider’s network and a user’s network, delineation of reasonable network management of various user devices, subsidization of user devices, and content protection. Furthermore, reasonable network management in this context requires identification of not only which functions are reasonable but also in which devices. Thus issues of discrimination and harm also arise.

For each such issue, we present an example of statutory language that could be used to resolve the issue. The proposed statute ensures users the right to connect devices of their choice while simultaneously ensuring network providers the right to reasonable network management. It is consistent with current user and provider rights on telephone networks, and strengthens user rights on cable and satellite networks and on cellular networks. It can be applied to residential networks attached through cable and digital subscriber line (DSL) modems, Internet residential gateways, set-top boxes, and smartphones, and it addresses which protocols and devices should be controlled by users and which by providers. The proposed statute eliminates separate device attachment rules for telephone, cable television, satellite television and cellular networks, and for the Internet.

This paper is intended for people with a background in communications policy:

A Proposed Attachment Statute for Converged Networks (with G. Shaffer), Journal of Information Policy, vol. 1, 2011, pp. 394-424.

We then studied the real-world scenarios that challenge current telecommunications law in this area, including the availability of digital video recorders, wireless device exclusivity, restriction of content to certain devices, device crippling, and device tethering. For each case study, we looked to principles considering user entitlements to utilize devices and applications of their choice and provider entitlements to use reasonable network management for guidance on whether these scenarios should be allowed. We also tested these scenarios against the statutes proposed in the paper above. This study predicts that American rules governing device attachment will become unsustainable as network technologies converge, and that a unified statute regarding device attachment will become necessary.

This paper is intended for people with a background in communications policy:

Testing Current Telecommunications Practices Against User and Provider Principles (with G. Shaffer), Journal of Information Policy, vol.3, 2013, pp. 355-379.

 

Subsequent FCC Actions

Internet: In 2015, the FCC passed the 2015 Open Internet Order, which includesa rules prohbiting ISPs from blocking non-harmful devices of a consumer's choice on either fixed or mobile broadband Internet service. I am honored to have been able to contribute toward the writing of the FCC's Order, as well as toward preparing the FCC for its successful defense of the Order in Court, in my role as the FCC's Chief Technologist during this time.

Set-top boxes: In 2014, the United States Congress passed a law requiring that the FCC appoint an advisory committee of technical experts to recommend a system for downloadable security that could advance the goals of the 1996 law that requires the FCC to assure the commercial availability of equipment consumers could use to access cable television service. This Downloadable Security Technology Advisory Committee issued a report in 2015 proposing methods that could be used to give users the choice over the devices they use to access video programming from a wide variety of providers. Subsequently, the FCC proposed rules to tear down anti-competitive barriers and pave the way for software, devices, and other innovative solutions to compete with the set-top boxes that a majority of consumers lease from cable television providers. The FCC is currently working on finalizing regulations. I am honored to have been able to contribute toward these efforts in my role as the FCC's Chief Technologist during this time.

 

Portions of this work were supported by NSF. Any opinions, findings, conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Science Foundation or IEEE. This material is presented to ensure timely dissemination of scholarly and technical work. Copyright and all rights therein are retained by authors or by other copyright holders. All persons copying this information are expected to adhere to the terms and constraints invoked by each author's copyright. One print or electronic copy may be made for personal use only. Permission must be obtained from the copyright holder for systematic or multiple reproduction, distribution to multiple locations via electronic or other means, duplication of any material in these papers for a fee or for commercial purposes, modification of the content of these papers, reprinting or republishing of this material for advertising or promotional purposes or for creating new collective works for resale or redistribution to servers or lists, and to reuse any copyrighted component of this work in other works.

Scott Jordan last modified April 3, 2017 UCICSNetworked Systems