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Comcast and the Internet

Susan Crawford

Today the FCC is condemning Comcast's practices with respect to P2P transmissions. (See Comcast Is Pretending To Be You, explaining what the company did, and Comcast and Network Management, explaining EFF's reports.) I'm happy for FreePress and Public Knowledge today, and I know they have achieved a substantial change in the wind. The basic idea that it's not okay for network access providers to discriminate unreasonably against particular applications is now part of the mainstream communications discourse. That has to be good news.

I'm concerned on a couple of fronts. The FCC has taken the view that it can adjudicate, on a case-by-case basis, issues that have to do with "Federal Internet Policy." They used that phrase several times, citing 47 USC 230(b) and 706, and pointing out that the Supreme Court in Brand X broadly construed the FCC's authority when it comes to the internet.

First, Congress has never given the FCC express authority over internet policy. The agency is in completely uncharted waters, using this idea of "ancillary authority" to carry out whatever it feels like. (A first key question from Comcast will be "ancillary to what? The Cable Act doesn't give you any power to tell us how to run our networks.")

Although in the short term condemning Comcast is certainly a good idea, the notion that case-by-case, wholly discretionary adjudications like this one are possibly a good idea for all aspects of internet policy is nuts. I'm also betting that Comcast will sue, and win, over the FCC's lack of authority.

Second, the Commission is making clear that it's not interested in carrying out any real intervention in what it calls the "broadband market." Comcast's obviously deceitful activities may be an easy case (and perhaps a case for the FTC rather than the FCC). But the harder questions about the conditions under which internet access should be available are being brushed aside by this Commission. That's bad for the future of the internet in this country, and perhaps for lots of other countries too.

We have made non-discriminatory access to general-purpose communications networks part of our law for a hundred years. There are many good reasons for this, ranging from increasing overall social welfare to overcoming collective-action problems; there are innumerable positive spillovers ("externalities") from these non-discriminatory access rules. Non-discriminatory policies implicate basic freedoms as well as hard-edged economic welfare.

Now we've dropped this idea, and the next Commission (and the next Administration) will have to take it up. I hope the Commission's action today won't jeopardize this larger goal, which can be achieved by requiring that all internet access providers allow bit-stream-level access over their fiber to competing providers. That's all — pretty simple — let anyone provide the electronics that light fiber strands.

But the bottom line today is certainly good news.

By Susan Crawford, Professor, Cardozo Law School in New York City. More blog posts from Susan Crawford can also be read here.

Related topics: Access Providers, Broadband, Law, Net Neutrality, Policy & Regulation, Telecom

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Comments

A good day for Washington lobbyists; a bad day for the people Anonymous Coward  –  Aug 02, 2008 4:39 PM PST

Yes, this was a "good" day for Washington lobbyists such as "Free" Press, who are seeking to expand their power base by having the Internet regulated as they see fit. But it was a bad day for the rest of us. The FCC's ruling was full of untruths fed to it by the lobbyists, which it accepted uncritically. It was illegal, because it was based on a "policy statement" which had been specifically declared to be unenforceable (meaning that the FCC was acting arbitrarily and capriciously when it suddenly enforced it) and which ran counter to a policy statement enacted by Congress at 47 USC 230(b). And it was embarrassing to the agency, because it showed a lack of technical knowledge and also showed it to be subject to blind partisanship and politics.

You, Susan, have testified before Congress advocating laws that impose similar stifling regulation upon the Internet. Perhaps you will reconsider your stance now that you can see how wrongly the FCC would act if it actually HAD the authority to regulate the Net.

Read Richard Bennet's Comments Charlotte Wolter  –  Aug 06, 2008 6:34 PM PST

Susan,
You rail against Comcast for doing something that it isn't doing. Richard Bennett is right that the effect of the company's actions is not detrimental to BitTorrent. You need to make sure that you understand the technology as well as you understand the law.

It is also important to understand that what Kevin Martin does has little to do with protecting consumers, though his actions are always cloaked in consumer protection. He wants to protect consumers from VoIP's 911 issues and from Comcast's (nonexistant) throttling of the Internet, but doesn't want to protect them from predatory marketing by telcos when they want to switch to nontelco VoIP. In fact, has Martin ever backed an action that impacts telcos negatively?

The degree of bias he shows toward one industry segment--traditional telcos--and against its competitors is, in my 20 years covering the FCC, unprecedented. When that bias affects day-to-day FCC operations, such as commissioner McDowell not receiving documents in a timely fashion, it renders the commission irrelevant. Already congress has had to take over activities, such ensuring VoIP operators’ access to the 911 system, that the commission should have dealt with long ago.

Making wise decisions about consumer rights and network management (not necessarily in conflict) is challenging and requires that the FCC be viewed as fair and equitable by both sides. But this FCC is so politicized and chaotic that it can't take on that role, as the Comcast decision demonstrates. The commission needs new leadership, but that won't happen until the Bush administration is gone.

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