Category: Law

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

Declan McCullagh is wondering about that secret framework the FCC has discovered:

Details of the FCC’s ruling, which may not be available for a few weeks, remain unclear. While Comcast will face no fine, Martin said the FCC has adopted a new legal “framework” that will let federal bureaucrats deem whether future network management practices are permissible. The dissenting Republicans said they did not receive the final text of the order until late last night–it apparently includes a variant of a “strict scrutiny” test usually reserved to judge whether government policies are legal or not–and it is not yet public.

I think this secret framework is the most interesting part of today’s news, and the delay in the publication of the FCC’s order reflects the difficulty they’re having in making it up.

Technorati Tags: net neutrality, FCC, broadband, pandering

According to Drew Clark, these are the FCC’s findings in the Comcast dispute:

1. Comcast’s network management practices discriminate among applications and protocols. It uses deep packet inspection.

There is no law against deep packet inspection for the purpose of reasonable network management, and Kevin Martin’s press release says it’s OK to discriminate for and against applications: “We do not tell providers how to manage their networks. They might choose, for instance, to prioritize voice-over-IP calls.” So no problem here, but nice attempt at scaring people with “deep packet inspection.”

2. Comcast’s practices are not minimally intrusive, but are invasive, and have significant effect.

Comcast’s actions only affect BitTorrent in unattended seeding mode, which actually helps BitTorrent in peering mode and download mode, so it is minimally intrusive.

3. Comcast has blocked content and significantly interfered with person’s ability to access applications and content of their choice.

Comcast’s actions have no effect on the ability of its customers to access content. In fact, they help. Seeding cannot be construed as “accessing content” under any reasonable definition. In fact, it’s “offering content” and the Four Freedoms don’t enumerate that as a right.

4. Comcast’s practices do not constitute reasonable network management practices.

In the opinion of actual working engineers, these practices are reasonable, if less than ideal. In engineering as in politics the perfect is the enemy of the good.

5. The economic harms have been compounded by Comcast’s failure to disclose its practices.

There has been no demonstrated economic harm. In fact, the system discourages piracy, and therefore prevents economic harm.

6. Comcast’s practice contravenes federal internet policy, and limits consumers’ ability to access the lawful internet content of their choice.

Once again, this practice doesn’t affect consumer ability to download content.

So the Commission is wrong on the facts, wrong on the law, and generally pounding on the table.

Technorati Tags: net neutrality, FCC, broadband, Comcast

At least one FCC commissioner has his head on straight today, Robert McDowell. His dissent on Martin’s arbitrary smackdown is great:

For the first time, today our government is choosing regulation over collaboration when it comes to Internet governance. The majority has thrust politicians and bureaucrats into engineering decisions. It will be interesting to see how the FCC will handle its newly created power because, as an institution, we are incapable of deciding any issue in the nanoseconds of Internet time. Furthermore, asking our government to make these decisions will mean that every two to four years the ground rules could change depending on election results. Internet engineers will find it difficult, if not impossible, to operate in a climate like that. Today’s action is raising many questions across the globe. Is the next step for the FCC to mandate that network owners must ask the government for permission before serving their customers by managing surges of information flow? As a result of today’s actions, Internet lawyers around the country are likely advising their clients to do just that. Will the FCC be able to handle that case load? Will other countries like China follow suit and be able to regulate American companies’ network management practices, with effects that could be felt here? How do we know where to draw the line given that the Internet is an interconnected global network of networks?

Given the Internet’s interconnectivity, are we now starting a global race to the lowest common denominator of maximum government regulation all in the name, ironically, of Internet freedom? Keep in mind that societies that regulate the Internet less tend to be more democratic, while regimes that regulate it more tend to be less democratic.

I am being asked these and many other questions, and I don’t have answers to them. No one does. But two things are for sure, this debate will continue, and the FCC has generated more questions than it has answered.

Read the whole thing, it’s great.

After voting on the Comcast order today, Kevin Martin and his Democratic Party colleagues issued press releases telling us how they saved the Internet from Comcast’s discriminatory practices, but they’ve failed to release the actual order they adopted in secret. Rumor has it they re-wrote the order after voting on it, and are presently working with high-level spin doctors to remove all the rough edges, inconsistencies, and factual errors. So once again, critics of the Commission’s apparent over-reach are left sparring with a shadow puppet.

The press releases are inconsistent and incoherent.

They display a significant lack of understanding of the technical and factual issues in this case. The Commission’s press release refers to a hitherto unknown right of network applications to be treated “equally”, without sourcing it or explaining it:

The Commission concluded that Comcast’s network management practices discriminate among applications rather than treating all equally and are inconsistent with the concept of an open and accessible Internet…

While Comcast claimed that it was motivated by a desire to combat network congestion, the Commission concluded that the company’s practices are ill-tailored to serve that goal for many reasons: they affect customers who are using little bandwidth simply because they are using a disfavored application; they are not employed only during times of the day when congestion is prevalent; the company’s equipment does not target only those neighborhoods suffering from congestion; and a customer may use an extraordinary amount of bandwidth during periods of network congestion and will be totally unaffected so long as he does not utilize an application disfavored by Comcast.

And at the same time Martin endorses the practice of raising the priority of delay-sensitive applications like VoIP:

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 prioritize VoIP. That means it’s OK to de-prioritize everything that’s not VoIP, and the only way you can determine which is which is by inspecting packets to see what protocol carries them. But the Commission says you can’t do that:

For example, Professor David Reed of the Massachusetts Institute of Technology, widely respected as one of the architects of the Internet, said that “[n]either Deep Packet Inspection nor RST Injection” — Comcast uses both to manage its network — “are acceptable behavior.”

Leaving aside the fact that Reed hasn’t been active in network engineering for over twenty years, one man’s personal opinion is not the law. Reed’s religious notions about right and wrong are inconsistent with Martin’s assertions about what’s permissible and what’s not. Deep Packet Inspection is how you see whether a given packet is carrying VoIP traffic or not. Internet packets aren’t hidden in envelopes, they’re a one-dimensional series of bytes that are all out in the open, like postcards, so there’s nothing nefarious about this. If we can’t tell what the application or protocols it is, we can’t prioritize it.

Martin says the FCC does not tell providers how they may manage their networks, but that’s the whole point of the exercise.

And the Commission remains lost about the impact of Comcast’s management on the ability of its customers to access content on the Internet. They don’t interfere with customers’ ability to download content of any kind using BitTorrent or any other protocol, but the Commission’s press release says otherwise:

The Commission concluded that the end result of Comcast’s conduct was the blocking of Internet traffic, which had the effect of substantially impeding consumers’ ability to access the content and to use the applications of their choice. The Commission noted that the record contained substantial evidence that customers, among other things, were unable to share music, watch video, or download software due to Comcast’s misconduct.

In fact, no such thing is happening on the Comcast network and it never has. Comcast does not interfere with BitTorrent downloads on its network; in fact, they prevent BitTorrent seeding from interfering with BitTorrent downloading and actually improve the performance of the application the Commission says it’s “disfavoring.”

Nobody has complained that you can’t download, and downloading is how you access the content of your choice. The actual complaint is that the amount of bandwidth Comcast allocates to BitTorrent acting as a file server is not enough. This can have an effect, typically a small one, on the ability of other people, especially those outside the Comcast network, to download the Comcast customer’s content, but there’s no “freedom to run a file server from your home.”

Throughout this whole debacle, I’ve repeatedly tested whether I could download movies and software using BitTorrent on the Comcast network, and at no time has it been blocked. There have been periods during which BitTorrent was slowed for seeding, when I wasn’t trying to download a file, just serving files to others, and that’s it.

So what we have is this:

1. A secret framework of permissible and impermissible practices;
2. A failure to interpret the facts;
3. The opinion of one former network engineer trumping years of practice on the Internet;
4. An order to stop an unknown practice;
5. A tragic lack of consistency.

Under no rational interpretation can this be considered a good day for the Internet.

I’ll have further comment when I can see the actual order.

The Wall St. Journal joins the chorus of Bronx cheers aimed at Kevin Martin, the one-eyed federal umpire who blew a call that wasn’t even close:

Those who would use Comcast’s actions to argue for more Internet regulation have misidentified the Big Brother problem. It’s not the private sector they should be worried about. There’s no evidence that Comcast was trying to suppress a political view or favor one of its own services. By all appearances, the company’s policies were motivated by nothing more than making sure a tiny percentage of bandwidth hogs didn’t slow down Internet traffic for everyone else on the network.

Giving the government more say in network management, by contrast, introduces all kinds of potential for political mischief. Net neutrality is a slippery slope toward interventions of all kinds — not merely over access but ultimately over content. Naturally, the most powerful lobbies will have the largest sway. Mr. Martin’s decision in this case may well be driven by his own political hostility to Comcast and the cable industry for resisting some of his other policy priorities.

Mr. Martin’s bad instincts notwithstanding, the FCC’s job is not to determine business models in the private sector. The community of Internet service and content providers has proven itself more than able to work out problems on its own as Web use has exploded. If there are bottlenecks in the future, some providers might choose to block file-sharing services at certain hours of the day. Others might opt for some kind of metered or tiered pricing. Banning these options will only reduce incentives to upgrade networks and launch new services.

Regulators would do better to focus on keeping the overall telecom marketplace competitive. If Comcast customers don’t like the company’s network management policies, they’re free to take their business to Verizon, or AT&T, or some other Internet service provider. A World Wide Web run by Kevin Martin and his political friends will leave us with poorer quality and fewer options all around.

Internet users are several times more likely to suffer from slowed or degraded service on account of their neighbors than their ISPs, so Comcast’s actions have been reasonable. And as many others have noted, the regulatory role is to resolve impasses in the technical collaboration process, not to substitute political insight for engineering knowledge.

Martin blew this one, there’s no doubt about it. We need instant replay in politics.

Technorati Tags: net neutrality, FCC, Comcast

Andrew Orlowski has outdone himself in this admirable summary of the FCC’s expected ruling on Comcast:

The landmark decision draws together two strands of policy – one old and specific to the US, and one new and widespread.

I’ve noted before how American politics are largely fought through symbolic gestures. Think of the bitter fights over the wording on the US currency, or inscriptions on public statues. The Neutrality campaign was similarly engaged in a symbolic battle.

But the other aspect is more disturbing. Britain’s equivalent of the FCC, Ofcom, prides itself on what it calls “evidence-based policy making”. It may not always succeed, but it’s a tradition based on empiricism. With “Net Neutrality”, what we’re seeing is the opposite, where the direction is set on a hunch or intuition, or the angst of a mob, and the facts cherry-picked to support the conclusion. The definition of harm and “busting” are great illustrations. Call it “policy-based evidence-making”, if you like.

Indeed.

Technorati Tags: net neutrality, FCC, Comcast

Declan McCullagh takes a good look at the legal and political issues around the FCC’s pending wrist-slap of broadband carrier Comcast in FCC probably can’t police Comcast’s BitTorrent throttling:

If FCC enforcement against Comcast is illegal, why would Chairman Martin call Friday’s meeting? Only he knows for certain, but one explanation is that if the FCC is embarrassed when slapped down by a federal appeals court two years hence, Martin will have long since departed to a lucrative partnership at a law firm or private equity firm. (This is a customary exit path for FCC chairmen: Newton Minow went to Sidley Austin; William Kennard went to the Carlyle Group; James Quello went to Wiley Rein, named for ex-chairman Richard Wiley, where equity partners made an average of $4.4 million in 2006.)

Friday’s ruling may also end up as a cautionary tale for AT&T and Verizon, which as recently as last month seemed to be egging on the FCC to take action against their cable industry rival. But the same activists that have targeted Comcast before the FCC no doubt realize that AT&T’s terms of service limit “peer-to-peer applications”; Verizon Wireless flatly prohibits them; Verizon’s Fios service blocks incoming port 80. Another term for those network management practices is “Net neutrality violations.”

Motivation is interesting, and Declan’s probably right that Martin has a trick up his sleeve. My concern about this action is the precedent it would set. If the FCC is allowed to impose any madeup-on-the-spot rule that it fancies on companies with multi-billion dollar infrastructure investments, I can’t see the financial markets being too willing to part with the cash to engage in the continual upgrade that broadband networks require. The financial markets can tolerate many kinds of risk, but the political or career ambitions of Young Turk commissioners with the power to impose arbitrary sanctions isn’t one of them. Martin should sober up and look at the big picture instead of pulling the trigger on Comcast.