Net Neutrality Bill Nitty Gritty - "Unreasonable Favoritism"?

Okay, let's get down to the nitty-gritty on the proposed Net neutrality bill, HR 5353.  Yesterday, we looked at some pretty broad phrases in the proposed legislation, and wondered how far these phrases could be taken.  Today, we'll start to look at one of these phrases, the bill's proposed prohibition on "unreasonable discriminatory favoritism, or degredation of, content by network operators." 

When one of my sons was little, he would sometimes get pretty mad at me if I wouldn't let him get his way.  He'd pull the usual kid stunts, like crying and yelling and turning all red in the face.  I'd tell him to shape up and stop being unreasonable, and he'd turn redder and scream "I'M NOT BEING UNREASONABLE!"  What a crackup. I guess the definition of the word "unreasonable" can be kind of personal and situational. 

So, here are a few test cases for "unreasonable discriminatory favoritism, or degredation of, content.  I'll offer my opinions of the degree of reasonableness, or lack thereof, for each test case, but will understand that opinions may differ:

1. Hypothetically speaking, a major cable MSO might perchance notice that their DOCSIS plant is getting congested every night, well beyond the standard per-user capacity metrics they planned.  They are getting complaints about poor internet access performance from many of their users.  They trace the problem to high bandwidth usage by 5% of the users on their network, and notice that most of the extremely high usage is traceable to use of a program called BitTorrent.  They know they could deploy a "traffic shaping" device  at strategic points in their network for a total cost of about $3M, which will shut down a certain percentage of BitTorrent connections during the peak usage hours, hurting the performance of the BitTorrent users, but helping the performance of the remaining 95% of their user base.  Or they could deploy DOCSIS 3.0 to their entire network for about $2B.  They choose to do some "traffic shaping".  The cable MSO clearly states in their "Terms of Use" that thay may elect to perform traffic shaping if it is in the best interest of the overall quality of their service as experienced by most users.  Is this an unreasonable or discriminatory degradation of BitTorrent content?
2. Same as scenario #1, but the cable MSO doesn't disclose that they may do some traffic shaping to preserve quality for the majority of their users.
3. Same scenario as #1, but in this case, it is not a cable MSO, but it is an Internet Service Provider that does not sell video services, so the ISP would not view BitTorrent as a competitor for anything other than bandwidth.  This ISP also decides to do some traffic shaping and periodically tears down BitTorrent sessions.  This ISP has also clearly stated in their "Terms of Use" that subscribers are limited to no more than 500 Kbps apiece during the peak busy hour.  Is this an unreasonable or discriminatory degradation of BitTorrent traffic?
4. A major cable MSO offers a voice over IP service that rides on the same physical network as their high speed internet service.  The cable company deploys a quality-of-service management capability that is part of their DOCSIS and PacketCable technology standards, so that that the voice traffic is given higher priority than the other Internet traffic.  The cable company knows, due to the shared nature their DOCSIS network, that when one subscriber is on a phone call, that another subscriber in the same neighborhood might have less Internet access bandwidth available until the call is over.  The neighbor that does not subscribe to the cable MSO's voice service happens to subscribe to Vonage's "over-the-top" voice over IP service, and the Vonage service doesn't work as well when the cable MSO's voice subscribers are on the phone, due to a bandwidth shortage.  Is this an unreasonable or discriminatory degradation of traffic for the neighbor who does not subscribe to the cable MSO's voice service?

My answers:

1. Maybe
2. Yes
3. No
4. No

...that is to say, in my view, the only case that is clearly an unreasonable and discriminatory degredation of traffic is in the case of #2, when the cable MSO blocks BitTorrent traffic but did not disclose that it might do so in their Terms of Use.

In the case of #1, I can see where the MSO could be guilty of an unreasonable and discriminatory degredation of traffic under the following condition: if the cable MSO is shown to single out only the BitTorrent traffic for blocking, when other traffic from an application that does not compete with the cable MSO's service offerings and uses just as much capacity could have been blocked with the same benefits, then I would say that the MSO is guilty.

In the case of #3, the ISP has no competitive incentive to block traffic...their only motive is to provide a quality service to their subscribers.  Not guilty.

In the case of #4, I believe network providers need to have the freedom to deploy quality-of-service management techniques in their networks so that real-time applications such as VoIP work well.  An over-the-top VoIP provider knew it couldn't control the quality-of-service when it got into the business, and it doesn't have a right to access the internal QoS mechanisms of the cable MSO.

Now, I understand that your opinon may differ on whether these examples represent an unreasonable favoritism on the part of a network provider, and that is exactly the point.  Who gets to define what is reasonable and what is not?  In the proposed Markey bill, congress asks the FCC to make some recommendations.  In the end, though, somebody is bound to be disappointed with the FCC's definition of "unreasonable."