CNET blogger Charlie Cooper is among the large and growing number not impressed by the FCC’s pretzel-logic ruling against Comcast
Critics correctly note that Congress still has not given the FCC explicit authority to decide Internet policy. Even as the FCC issued its decision, Chairman Kevin Martin went on record writing that while Comcast had no right to prioritize Internet traffic, it’s fine to prioritize voice over IP:
We do not tell providers how to manage their networks. They might choose, for instance, to prioritize voice-over-IP calls. In analyzing whether Comcast violated federal policy when it blocked access to certain applications, we conduct a fact-specific inquiry into whether the management practice they used was reasonable. Based on many reasons, including the arbitrary nature of the blocking, the lack of relation to times of congestion or size of files, and the manner in which they hid their conduct from their subscribers, we conclude it was not.
We do not limit providers’ efforts to stop congestion. We do say providers should disclose what they are doing to consumers
So it’s OK to put individual data packets under a magnifying glass? But in its group statement–which Martin presumably signed off on–the FCC approvingly cited MIT professor David Reed, a respected Internet notable [sic], who believes “that “(n)either Deep Packet Inspection nor RST Injection”–Comcast uses both to manage its network–“are acceptable behavior.”
This takes Emerson’s apercu that a foolish consistency is the hobgoblin of little minds to an extreme. Maybe the private sector can figure things out without confusing itself over regulation from bureaucrats. But they first need clear rules of the road to follow. Otherwise, expect more of the same.
The FCC is delaying publication of the actual order because it’s impossible to reconcile the conflicting statements made by the majority in support of it. Specifically, they need to answer how an ISP is going to boost the priority of VoIP without violating this new rule that all applications have to be treated as equals.
They also need to explain where this new equality requirement comes from, because even the murky Policy Statement doesn’t say that all packets from all applications have the same value.
If it looks like Kevin Martin is making up the rules as he goes along, it’s because that’s exactly what he’s doing.
Technorati Tags: net neutrality, FCC, Broadband, Comcast
It appears, alas, that Friday’s ruling ought to appear with the dictionary definition of “arbitrary and capricious” as an example.
What is of even greater concern is this: Chairman Kevin Martin is not alone in wanting to make rulings on a “case by case” basis, without a foundation in law, rules, or even prior “unenforceable” statements. Commissioner Michael Copps, who would likely enjoy greater status and perhaps even the Chairman’s seat under a Barack Obama administration, has likewise said that he wants to create “case law” rather than going through due process (i.e. a Notice of Inquiry and rulemaking proceeding). I told Commissioner Copps, at the Stanford hearing, that the uncertainty inherent in such behavior would doom small competitors to the telco/cable duopoly, but he appeared unmoved. Must a court intervene before due process is considered? I certainly hope not, as the cost of the court battle could well kill one or more worthy competitors unless their lawyers work on a contingency basis and are awarded court costs.
Working out the rules on a case-by-case basis is fine as long as you have a strong foundation of principles at the outset, and I don’t see that condition being met. The so-called “Four Freedoms” are flawed, contradictory, and incomplete, so it’s going to take a lot of cleverness to make them into a sound framework.
The first test is going to be the order in the Comcast case, and I’m willing to bet that it’s going to be as convoluted as a pretzel.
From the Electronic Frontier Foundation, one of the organizations that manufactured the Comcast-BitTorrent controversy, an excerpt from a press release they posted on August 3 (http://www.eff.org/deeplinks/2008/08/fcc-rules-against-comcast-bit-torrent-blocking) :
There is one aspect of Friday’s FCC ruling, however, that seriously troubles us. Consider how the FCC got here. In 2005, without any authority or guidance from Congress, the FCC announced a “policy statement.” Now, in 2008, it decided that it has the power to enforce the policy statement and announced an “enforcement framework” that will be applied to future complaints. Again, all this without authority or guidance from Congress. As Commissioner McDowell put it in his dissent from the Comcast order, “Under the analysis set forth in the order, the Commission apparently can do anything [to regulate the Internet] so long as it frames its actions in terms of promoting the Internet or broadband deployment.” Can the FCC be trusted with that kind of power? Remember, historically, the FCC has been subject to “regulatory capture” — in other words, over time, they end up doing the bidding of the very telecom giants they are supposed to be regulating.
So while there is a great deal to like about the Internet Policy Statement, and today the FCC appears to have come to the right conclusions about Comcast’s behavior, what if the next “policy statement” turns out to be a disaster for net neutrality? After all, a polar bear makes a great bodyguard, until it decides to eat you.