EFF Warns That FCC Net Neutrality Rules Are A Bad, Bad Idea

from the good-for-them dept

Mon, Feb 7th 2011 7:02pm — Mike Masnick

We've been pointing this out for years, but it seems that many of the "tech elite" are so focused on the phrase "net neutrality" that they're willing to jump on any sort of regulation that says it's "net neutrality." So, it's nice to see that the EFF is not following suit, but instead is warning that the FCC does not have the regulatory mandate to do what it's trying to do with net neutrality -- and if it is given that control, it will inevitably lead to much more internet regulation that we will all come to regret.

We're wholly in favor of net neutrality in practice, but a finding of ancillary jurisdiction here would give the FCC pretty much boundless authority to regulate the Internet for whatever it sees fit. And that kind of unrestrained authority makes us nervous about follow-on initiatives like broadcast flags and indecency campaigns. In general, we think arguments that regulating the Internet is "ancillary" to some other regulatory authority that the FCC has been granted just don't have sufficient limitations to stop bad FCC behavior in the future and create the "Trojan horse" risk we have long warned about.

In discussing this stance with Wired, Abigail Phillips, a staff attorney at the EFF said she wasn't sure what "the right solution is" to the question of keeping the basic end-to-end principles of the internet in place. I still don't think the "solution" is that complex. For over five years I've been pointing out that if there was real competition in the marketplace, net neutrality wouldn't even be an issue, because customers would go to ISPs that didn't discriminate. The real problem is how deeply connected our government is to a very small number of giant broadband providers. They've set the game up so that there's very little real competition, which allows those ISPs to pull stunts like trying to doublecharge, favor certain content, and do metered billing. Get more competition, and none of those things fly.

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Filed Under: broadband, net neutrality
Companies: eff, fcc

45 Comments

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Hugh S. Myers (profile), 7 Feb 2011 @ 7:18pm

And where did the monolithic communications providers come from?
Why from the valiant efforts of the FCC of course! Which is as good a reason as any to keep them out of the net business...
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Anonymous Coward, 7 Feb 2011 @ 7:48pm

Monopoly
But what about areas that only have one available ISP?
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Anonymous Coward, 7 Feb 2011 @ 7:56pm

Net Neutrality should be simple like in other countries that have a working platform:

- Sharing lines is mandatory.
- Building of public IXP - Internet Exchange Points that are not owned by the same people providing the lines that is a clear case of conflicting interests.
- People who sell lines or rent them should not be also the owners of content.
- A clear regulation saying that nobody can prioritize traffic.
- No exclusive deals for line sharing or access to critical infra-structure should be allowed.
- The building of infra-structure should be about building tunnels bellow too, the government should own those tunnels and others should be able to put cables there to theirs hearts content.

With that competition flourishes without any of that, plans for an internet competitivity in the U.S. are just pipe dreams, that means legislation will have to be changed and there is no political will to do so.
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Anonymous Coward, 7 Feb 2011 @ 8:58pm

Metered Billing
"pull stunts like ... metered billing"

Yeah, that's what the power, water and gas companies pulled. In the summertime my electric bill is several times more than my flat-rate internet bill, because it's metered! I think all the services (power, water, gas, etc.) should be flat rate. Every time I adjust the thermostat I worry about how much it's costing me. Ditch the meters!
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Anonymous Coward, 7 Feb 2011 @ 8:59pm

As TV, movies and the internet continue to become inexorably linked, and as they are all the domain of big profit, I don't see how the FCC will not be the arbiter of everything, net-wise.
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Anonymous Coward, 7 Feb 2011 @ 9:09pm

Re: Metered Billing
Using power consumes an actual commodity. With the internet that bandwidth is there regardless of whether any bits are being sent over it.

And my heat payments are actually now based on the size of my apartment and not how much I actually use.
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Anonymous Coward, 7 Feb 2011 @ 9:24pm

Re: Re: Metered Billing
With the internet that bandwidth is there regardless of whether any bits are being sent over it.

Those wires are there regardless of whether or not any power is being sent over them and those pipes are there regardless of whether or not any water or gas is being sent through them.
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Christopher (profile), 7 Feb 2011 @ 10:48pm

Re: Re: Re: Metered Billing
Ah, but you are being charged for something that is a FINITE RESOURCE! Or supposedly is.

Bandwidth is NOT a finite resource. As long as they keep on laying more fiber, bandwidth can scale near infinitely.
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Adrian Lopez, 7 Feb 2011 @ 10:54pm

"For over five years I've been pointing out that if there was real competition in the marketplace, net neutrality wouldn't even be an issue, because customers would go to ISPs that didn't discriminate."

Except the free market doesn't guarantee real competition. An unregulated market does nothing to prevent monopolies and oligopolies, and those are exactly the kinds of things that may lead to a non-neutral Internet.

What we need is a set of narrow regulations that guarantee neutrality on the Internet without also giving the likes of the FCC the power to regulate content. It's not rocket science, but it does require a spine. If only there weren't so many spineless politicians.
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Anonymous Coward, 7 Feb 2011 @ 11:39pm

Re:
I can't prioritize traffic? Oh, I can, I'm a buyer.

What about corporate buyers of bandwidth? What about resellers operating in this rich market that you think you can create?

I agree with all your points but that one. Traffic prioritization will work itself out without having to open the prohibition-can-of-worms if all the other points are setup to create a healthy market, as opposed to the gimpy one we have now.
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Hugh Mann (profile), 7 Feb 2011 @ 11:41pm

Hmmm...
So, this would appear to be a situation in which merely puting "cyber" (figuratively) in front of something IS enough to differentiate it from what's already being done.

Intresting how often we're told here that the mere fact that something is related to the Internet should not cause it to be treated any differently than its non-online precursors. BUT, when you're talking about authority to regulate online activity, suddenly the Internet is this totally dfferent realm that is not addressed adequately by existing laws.

HM
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Anonymous Coward, 8 Feb 2011 @ 12:18am

Re: Re: Re: Re: Metered Billing
Bandwidth is NOT a finite resource. As long as they keep on laying more fiber, bandwidth can scale near infinitely.

I wish you'd point me to where I can connect to this infinite source of internet connectivity. I'd like to start up an ISP off of it.
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Not an electronic Rodent, 8 Feb 2011 @ 2:03am

Ein Minuten Bitte
Hang on a mo. Am I missing something? Isn't the FCC an American body, and isn't the internet, well, global? Does that not suggest that if you are going to have any body "in charge" of internet neutrality that it might be a good idea to involve (gasp) other countries?
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Richard (profile), 8 Feb 2011 @ 4:43am

Re: And where did the monolithic communications providers come from?
Actually the monolithic corpaorations are the consequence of the fact that the "last mile" of the (phone) network is a natural monopoly.

What is needed is a regulation that allows neutral access to the infrastructure - in particular this last mile - to multiple competing providers. This is what we are supposed to have in the UK and we do (seem to) have rather more ISPs than you seem to have in the US.

I repeat thought that there does have to be some "net neutrality" regulation - but it should be at a b2b level rather than consumer.
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Richard (profile), 8 Feb 2011 @ 4:50am

Re: Re: Re: Re: Metered Billing
What we have here is, in both cases, a combination of fixed infrastructure and consumables.

In the power case there is a fairly even balance between the two - so you should expect your bill to be a combination of a fixed connection charge and a per/unit charge.

In the internet case the marginal cost of using bandwidth is minimal (and mostly consists of the actual cost of metering so you should expect a flat charge unless they make the decision to meter it - in which case your connection will be metered in order to pay for the cost of metering it!

The water case is somewhere in between.
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Anon, 8 Feb 2011 @ 4:54am

Re: Metered Billing
The difference is power, water, & gas are a very finite resource
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Richard (profile), 8 Feb 2011 @ 4:56am

Re: Ein Minuten Bitte
The issue is to do with the consumer connection infrastructure. By the time you get to the international cables the plurality of nations is sufficient to guarantee a resonable measure of neutrality?

The FCC don't regulate the cables between Britain and Germany or the connections to UK or German consumers so it isn't an international issue - although individual countries will have their own local versions of this debate.
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Bengie, 8 Feb 2011 @ 5:24am

Re: Re: Re: Re: Re: Metered Billing
I'll give you an infinite time line and a T1, let me know when it "runs dry".
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Not an electronic Rodent, 8 Feb 2011 @ 5:27am

Re: Re: Ein Minuten Bitte
The issue is to do with the consumer connection infrastructure. By the time you get to the international cables the plurality of nations is sufficient to guarantee a resonable measure of neutrality?
I realised that was the direct intent of the legislation under discussion but from observations of how these things usually go, especially where "American Interests" are concerned I, apparantly like the EFF, am not sure it would end there.
And that kind of unrestrained authority makes us nervous about follow-on initiatives like broadcast flags and indecency campaigns. In general, we think arguments that regulating the Internet is "ancillary" to some other regulatory authority that the FCC has been granted just don't have sufficient limitations to stop bad FCC behavior in the future and create the "Trojan horse" risk we have long warned about.
Emphasis added
Don't you think that those things would have a significant impact outside the US? "Oh, now we (America) say you can't have any of our content at all unless you install this proprietary DRM (which just happens to be from an american company) and now it's not just the industry saying so, we have the full weight of the government behind it.". That sounds like an international impact to me.
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Anonymous Coward, 8 Feb 2011 @ 5:39am

Re: Re: Metered Billing
The difference is power, water, & gas are a very finite resource

So is the bandwidth of any given internet connection.
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Anonymous Coward, 8 Feb 2011 @ 5:43am

Re:
You hit the nail on the head here.

True competition without restriction would likely mean that many Americans would see their cable, phone, and internet bills rise significantly, as they are in rural areas that are served only because of mandates. Competitive marketplaces exist only where there is money to be made, and that is not going to be in areas where houses are a mile apart and the backhaul to the nearest CO is 30 miles.

Americans want to live the suburban dream but want to pay in town prices. These are two things that are not compatible. If you decouple the rural areas from exclusive mandates granted in the city, there would be few companies wanting to offer service outside of the major centers, and they would do it only on a "cost plus" basis, as they wouldn't have the same income from the city to support their rural networks.

If your goal is "reasonable internet for everyone", that isn't compatible with "increased competition". You only have to look at the wireless business to understand that competition alone isn't enough to push companies to serve rural areas properly.

http://coverage.sprint.com/IMPACT.jsp?ECID=vanity:coverage

EFF talks a good game, but their goals isn't at all compatible with the reality on the ground.
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Anonymous a-hole, 8 Feb 2011 @ 5:47am

Re: Re: Metered Billing
The difference is power, water, & gas are a very finite resource
Also, I don't get charged for power, water and gas I don't request. Yes, on most utilities there are "operating costs" added that go into maintaining the infrastructure to ensure when I turn on a light the electricity flows. With an internet connection, I can't keep J. Random Hacker from sending an endless supply of traffic and devouring the ISPs artificial cap.
Imagine if you got charged for phone calls whether you answered them of not. Now imagine you gets calls internationally all the time.
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Anonymous Coward, 8 Feb 2011 @ 5:50am

Re: Re: Re: Metered Billing
First bandwidth is a fixed cost you can't consume more then it is available and everybody pays for that availability already, now they want to charge for supposed usage when the whole bandwidth was already paid for that is just crap.

More you want to see what happens when metered is institured, look no further than Canada, where prices got way up and bandwidth got capped to ridiculous low amounts is that progress?

And the f'ing ISP's keep posting billions of dollars in profits every quarter.
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Anonymous Coward, 8 Feb 2011 @ 5:58am

Re: Re:
Not if prioritizing your traffic reduces competition then you should not be able to do it, doesn't matter if you bought it, won it in a rift or whatever.

And I don't think I can create it, I know for a fact that is how Japan did it, France did and now Australia is doing it.

If you are part of the core infra-structure you are not allowed to discriminate against traffic beyond reasonable needs, that means if you are slowing down just Youtube to force them to pay you, you are breaking the rules, that means if you are slowing down every other traffic to gain advantage over other offerings you are breaking the rules.

If people wanted dedicated services they would pay for dedicated fiber not for the public infra-structure to allow that.

If anyone wants priority they put a dedicated router at both ends and don't screw with the general traffic on other lines.
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Steve R. (profile), 8 Feb 2011 @ 6:38am

Trust Me, We Don't Need Regulation
A tired mantra. Why should we trust the ISPs? Freedom, in many respects has degenerated in our societ as a license to steal. Like a welfare society - the ISPs mantra boils down we have rights and entitlements but no obligations or responsibilities. A civil society can not operate on those premises.

Yes, there are serious issues with regulated net-work neutrality. There isn't a regulation that can't be circumvented.

What seems to be consistently missing in this whole debate is an offer by those who will be benefiting from regulatory freedom is an actual guarantee of net neutrality. There is nothing stopping them from implementing net-neutrality. They are free to choose.
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Shon Gale (profile), 8 Feb 2011 @ 6:53am

Of course the politicians are in the broadband pocket. You don't think politicians use their own money to run for office do you?
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Not an electronic Rodent, 8 Feb 2011 @ 7:00am

Re: Re: Re: Metered Billing
So is the bandwidth of any given internet connection.
But bandwidth as an aggregate isn't in any meaningful way as capacity in the core network can be added ad infinitum (well no but for practical purposes). In fact the finite bandwidth of a specific internet connection is pretty much the point. If one buys, say, a 20Mbps connection then it'll never go over an average of 20Mbps no matter how much you cane it and in fact is usually guaranteed to be far lower.

A cap on the amount of data for the ISP is meaningless though despite that this is what they often try and sell. It's not the amount of data you pull it's the amount of contention on the line and the overall data rate across the contendign users. If one downloads 5GB of data during peak hours you'll have far more effect on their network than if you pull 30GB in low usage hours. I deliberately paid a little more for my internet line to get a lower contention rate that means I get a (theoretically) reasonable amount of bandwidth even in peak hours no matter who else is thrashing their connection.

The problem is not the bandwidth it's the way ISPs sell it to consumers as something it's not. They tout the peak figure of "Super fast 20Mbps broadband" and sell you it, carefully putting the 50-1 contention rate that means what you're actually buying is 400Kb with burst capability in very tiny letters with an asterisk. Then, when it turns out it only goes at 400K because people actually wan tto use the product they pay for, the ISPs profess to be all suprised and blame it on "bandwidth hogs" when people complain that they're not getting what they bought. Then they mutter about caps and charge you more for something that has little effect on the problem but sounds useful.
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Richard (profile), 8 Feb 2011 @ 9:06am

Re: Re: Re: Ein Minuten Bitte
I think you are broadening the issue a bit here - however I agree that- once you broaden the issue in that way- all the concerns that you raise are a big worry.

However I'm inclined to think that the set of people who are pushing for those worrying things have their counterparts in Europe and elsewhere - so we will have these battles on our own turf before (plus as well as) we have to fend off the US attempts to push the agenda.
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Anonymous Coward, 8 Feb 2011 @ 9:19am

Re: Re: Re: Re: Re: Re: Metered Billing
I'll give you infinite time and a solar panel. Call me when the lights go off.

Just like the lights, the T1 will go dry when I try to get more than it can give.
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David, 8 Feb 2011 @ 9:38am

Re: Re: And where did the monolithic communications providers come from?
Yeah, and the cable TV wire is a natural monopoly, too. And so are the 4 or 5 wireless broadband providers.

Hmmm, if there are 5 or 6 'natural monopolies competing with one another, are they really monopolies (natural or otherwise)?
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Charlie, 8 Feb 2011 @ 9:45am

Net Neutrality and the FCC
The problem with the "competition cures everything" line of thinking is that for most people, net neutrality is a vague concept, but faster streaming services (Netflix, Hulu, VoIP, etc.) or other products that might work better in a non-neutral environment can command some real marketing sizzle. I think the net-neutral ISPs would lose this battle in the broad marketplace.
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John, 8 Feb 2011 @ 9:53am

Possible Regulatory Model
I just want to throw out the idea of not giving the regulatory power to supervise the operation of the internet to the FCC, but instead to the US Post Office.

The internet is the postal network of the 21st century. The rights and concerns voiced during the creation of the postal service are just as relevant to the transmission of electronic communications. The internet needs to be prompt, reliable, and efficient, servicing all patrons in all areas and all communities.

I don't disagree that more competition among ISPs will lead to network neutrality, but without public government oversight, your going to see the continued growth of companies such as Phorm.

Personally I want my internet, data agnostic and secure.
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dogheart, 8 Feb 2011 @ 9:57am

The idea of "competition" is not only entirely destructive, it's also essentially non-existent. We need to remove money and commerce from the equation entirely. It's unworkable for the times we're living in. A relic of times when scarcity was real and trust was impossible. Now, it's basically the name for the busy work-driven indentured servitude that 99% of us are born into.
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Norm (profile), 8 Feb 2011 @ 11:06am

Re: Re: Re: And where did the monolithic communications providers come from?
Wired communications are a natural monopoly because of the huge initial cost. Check Verizon's numbers for FIOS. Its in the billions. Wireless has a cheaper initial cost because a single tower can cover a large area. Competition does exist at the wireless level, but not wired. Wireless and wired are slightly different markets. Wireless cannot keep up with the speeds and reliability that wired provides, although that may change in the future.

In most areas, there is only one wired broadband provider available. What Richard is suggesting is common-carrier status for wired broadband. I tend to agree with him, because the barrier to entry for competitors is billions of dollars in capital.
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David, 8 Feb 2011 @ 12:02pm

Re: Re: Re: Re: And where did the monolithic communications providers come from?
Actually, the FCC's data shows that in most areas there are TWO wired broadband providers (cable and telco). And with respect to wireless, I think that WiMAX and LTE are already making wireless broadband a true substitute for wired.
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Anonymous Coward, 8 Feb 2011 @ 12:55pm

Re: Re: Re: Re: Re: Metered Billing
Once you have the pipes in place, there is no marginal cost to the carrier per byte delivered. That is not true of gas or electricity.
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chris (profile), 8 Feb 2011 @ 1:12pm

Re: Re: Re: And where did the monolithic communications providers come from?
Hmmm, if there are 5 or 6 'natural monopolies competing with one another, are they really monopolies (natural or otherwise)?

monopoly, oligopoly, six of one, half dozen of another.
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hacksoncode, 8 Feb 2011 @ 1:53pm

Unnecessary
Honestly, we don't need anything resembling what people are calling "net neutrality". All that is necessary is to remove common carrier privileges from carriers that are not common.

ISPs can't control data based on content without (logically) becoming liable for the content. That's just common sense. It's stupid that they should even think they could get away with that for a second. It should be made clear by statute.

I guarantee that none of them will get anywhere near violating true network neutrality if we do this, and it doesn't require any regulations.
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Norm (profile), 8 Feb 2011 @ 3:18pm

Re: Re: Re: Re: Re: And where did the monolithic communications providers come from?
That doesn't make much sense. Telco is not a type of broadband. Other than cable, you can get dsl (which may not even qualify as broadband under the new definitions), fiber, and other more commercial offerings such as T1.

If you are referring to the FCC data that only tested if at least one housing unit within a zip code had broadband, then its pointless. That measurement is so widly inaccurate that it should be used as a basis for any conclusion.
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Norm (profile), 8 Feb 2011 @ 3:23pm

Re: Re: Re: Re: Re: Re: And where did the monolithic communications providers come from?
Edit: shouldn't be used
/oops
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Jose_X, 8 Feb 2011 @ 5:58pm

Re: Re: Re: And where did the monolithic communications providers come from?
Oligopoly is a closely related term to keep in mind.
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Jose_X, 8 Feb 2011 @ 6:10pm

Re: Re: Re:
I agree. They are public roads.

First, we can't create a dedicated connection from everyone to everyone. We must coordinate and share.

Second, if the public roads "owner" could pick how much to charge anyone on that road, then you would find a sure way to leverage that into many "monopolies" (or at least very biased advantages) in adjoining businesses. We would also find that small stakeholders would lose out.

Our public leverage (for the "little people") is exercised through our government or at least that is the intent.
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Bengie, 9 Feb 2011 @ 4:39am

Re: Re: Re: Re: Re: Re: Re: Metered Billing
deal, but you need to put those solar panels somewhere where they are always facing the sun and they get sun 24/7
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alph, 18 Feb 2011 @ 5:26am

Re: Metered Billing
are you a fucking idiot? utilites are commodity based, motherfucker. you can't run out of internet.
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Anonymous Coward, 17 Apr 2011 @ 1:04am

Re: Re: Re: Re: Re: Re: Metered Billing
There's still tremendous cost to operating the network after the pipes are in place -- $100k carrier-grade routers, optics, the network engineering, network management, monitoring software, future planning, configuration management, 10KWh/rack electricity draw, constant upgrade cycle, bandwidth/subscriber management ($250k/box carrier-grade)... there sure there is a cost per byte delivered!
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