This is a reply to Susan Crawford's circleid article "Comcast v. FCC - "Ancillary Jurisdiction" Has to Be Ancillary to Something”.
I started writing a reply to her article, adding some comments I had and also reminding her that she'd predicted this herself, in an earlier circleid article, but it turned out long enough that I decided to submit it as a circleid post instead.
On the whole, the facts agree with this CNET article. This court decision was correct, and expected.
The FCC move to go after comcast only passed 3-2 with the dissenting members noting that it'd never stand up in court. Which, no surprise, it didn't.
I know you call it "unreasonable" and there's enough to discuss and/or disagree with there. You predicted much the same too on 8/1/2008, ..and I must say that was a very easy prediction, given how much the FCC clearly overstepped its mandate.
The FCC will have to go to congress to get any kind of authority over what you propose. And I seriously doubt whether they will actually get the sort of authority they're looking to get.
Not when congress has far bigger fish to fry, and not when it makes much more sense to be centrist than liberal left in policymaking, given the current environment.
One other consequence might be that Genachowski might have to step down and be replaced by someone more neutral to the ideologies wrapped around this flavor of net neutrality.
The FTC might have some jurisdiction on what is a trade practice issue (or in some areas, a monopoly issue, with one cable or broadband provider sometimes being the only choice - e&oe 3G connectivity etc).
But even there, an initiative that is projected as a way to protect the interests of a large majority of users from the misuse of a resource by a small majority of users downloading porn / ripped movies etc. on P2P is not very likely to get slapped down as an unfair trade practice.
It is not even a privacy issue - and I have seen you (inappropriately, in my opinion) compare some of Comcast's actions (such as DPI to identify overuse of their network) as equivalent to "the sidewalk eavesdropping and demanding money”.
And as you pointed out in your 8/1/2008 article, "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".
Oh yes - you suggested, in that same 8/1/08 article, that the FTC might be a better place to raise this, but as I said earlier, the FTC is not likely to step in to protect P2P addicts.
47 USC 230 actually gives very broad safe harbor to an ISP for good samaritan filtering, which is a very good thing indeed (especially 47 USC 230 c2 which has helped in many a lawsuit filed against ISPs, such as e360 vs Comcast). Nowhere do I construe it to mean that the FCC is empowered to step in and regulate an ISP to STOP filtering on its network.
Short version of that is - I'm very sorry Susan but I'm afraid you're out of luck.
By Suresh Ramasubramanian, Architect, Antispam and Compliance
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