David Sohn of CDT makes the right points

Commenting on the pending FCC action against Comcast, the CDT’s David Sohn says most of what needs to be said:

In order to engage in enforcement, there needs to be either:

(1) An existing, articulated rule or standard against which to judge behavior;
or
(2) Authority for the enforcement body to adjudicate and issue rulings based on general notions of fairness/equity.

It is difficult to argue that number (1) is present here. The FCC expressly stated that its broadband principles are not rules. If they are not rules, then it is hard to see how the FCC can turn around and try to police violations of them as if they were . . . well . . . rules. Doing so would put the FCC on perilously shaky legal ground.

As for number (2), CDT believes that everyone with a stake in the Internet — which at the end of the day is pretty much everyone, period — should be extremely wary of any assertion of open-ended and highly discretionary FCC jurisdiction over broadband Internet service. Even those who may like what the FCC proposes regarding the Comcast question should consider that they may be far less happy with what some future FCC may do, once the door to largely unguided regulatory action is open. CDT believes that the FCC neither has nor should have open-ended authority to craft policies for the Internet out of whole cloth.

This is the problem with suggesting, as some commentators have, that Internet neutrality concerns could be addressed via case-by-case adjudication and enforcement rather than ex ante rules. You can’t adjudicate and gradually build up a body of common law unless there is some underlying standard to adjudicate against — or unless you have broad authority to make law from scratch. That’s why CDT continues to call for legislation in this area. Having the FCC initiate and craft the entire legal framework, without Congress setting the parameters, cedes too much authority to the agency.

It will be interesting to see how an eventual FCC order, if there is one, addresses the murky legal status of the FCC’s Policy Statement and what legal hook the agency tries to hang its action on.

One other thing I’d add is this: an ideal residential Internet access system needs to be managed in two different but equally important phases:

1) Allocate bandwidth fairly among competing accounts; and then

2) Prioritize streams within each account according to application requirements.

Phase 1 keeps you from being swamped by your neighbor, and keeps you from swamping him, and Phase 2 prevents your VoIP session from being swamped by your BitTorrent session.

The problem with the Comcast Sandvine system is that it skips phase 1 and simply does phase 2, application-level traffic shaping. And the problem with the FCC order that Chairman Martin is floating about is that it makes phase 2 shaping illegal. It’s incredibly useful to manage streams for each user as he would want them managed if he had direct control over them. I think future home gateways will empower users to do this, but in the meantime it’s desirable for the ISP to manage sessions appropriately.

The first rule of regulation should be “do no harm,” and on that basis Martin’s prescription is bad medicine.

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3 Responses to David Sohn of CDT makes the right points

  1. he said most, but not all…

    one further thing to say could be “informing prospects and customers on mgmt policy and providing them transparency on the implementation” ?

    to remove mgmt you need to remove scarcity
    to remove scarcity you need FTTH (to allow going from Moore to Photonics)
    to build FTTH you need remunerability
    to have remunerability you need to reduce costs and increase price

    it is something you need to do at a system-wide level, otherwise you will have free riders

    it is a matter of public policy, IMHO.

    I hope (from Europe) that FCC rules, somehow “overriding” Congress.

    this could be a wakeup call to take on seriously the discussion on “common” infrastructure development for 21st century and choosing priorities.

    then, as is often the case in TLC, europe will follow..

  2. George Ou says:

    Stefano,

    You should ask the Japanese if 100 Mbps FTTH (Fiber To The Home) solves the scarcity problem.

    http://blogs.zdnet.com/Ou/?p=1063
    http://blogs.zdnet.com/Ou/?p=1078&page=2

    The fact of the matter is, you give me a gigabit pipe today and me and my friends/peers will be more than happy to fill it up tomorrow. I have home electronics devices with HDMI ports in the back that can output 3 gigabits per second of 1080 60p video and that will increase by a factor of 16 when we have quad-1080 resolution video. No amount of bandwidth will ever be “enough” just like I’ve never met a hard drive I couldn’t fill even though hard drives 100,000 times larger today than they were 18 years ago.

    Having said that, network management is not a substitute for raw bandwidth and no amount of network management will allow you to run higher-resolution higher-quality and more simultaneous channels. On the other hand, no amount of capacity will every be a substitute for intelligent network management. Network capacity and network management are two independent things and we always need more of both.

    George Ou

  3. Brett Glass says:

    Alas, you cannot remove scarcity so long as you have an infinite (or nearly so) scarcity-creating mechanism: P2P. So long as content is free (even if it’s free because it’s pirated), people will download as much of it as they can. (Why not? There’s zero marginal cost.) What’s more, even if someone has his or her fill of free content, that person’s computer will continue to saturate the pipes by sending it to others.If there’s no penalty for doing that, more and more people will do it until any pipe is saturated. We have seen this in Japan, where 100 Mbps FTTH has not created a dent in resource exhaustion due to P2P.

    In short, the problem is not any inherent scarcity but rather an artificially created one — created by a mechanism that will always outpace the expansion of facilities.

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