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Comcast vs the FCC - A Reply to Susan Crawford's Article

Suresh Ramasubramanian

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

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

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Comments

common carrier status Scott Francis  –  Apr 09, 2010 10:22 AM PDT

I never have understood the reasoning behind the decision to _not_ qualify last-mile and broadband ISPs under Title II - if they had common carrier status like the telcos and larger carriers, this situation would be relatively straightforward, I'd think. If a telco offering broadband Internet service has to play by common carrier rules, but a cableco offering the exact same service does not, this just doesn't make a lot of sense.

(not a lawyer, not an expert, willing to be educated)

The voice part of any ISP is usually the one that has common carrier status Suresh Ramasubramanian  –  Apr 09, 2010 6:09 PM PDT

And that is kept totally separate from the ISP part of the company - which explicitly does not have common carrier status.

Forcing ISPs into common carrier status would be a disturbing development - even spam and virus filtering of messages by the ISP would be very difficult to accomplish if these loud cries from various NN activists to force ISPs into common carrier status bear fruit.

add-ons vs. basic service Scott Francis  –  Apr 12, 2010 10:15 AM PDT

I guess I draw a distinction between add-on services (like the provision of an email account and filtering for such) and the basic IP service (whether over coax, twisted pair, fiber, or something else). I think if one is going to sell "Internet" connectivity, one should provide exactly that - not "Internet minus stuff we think you have no business doing" connectivity, or "Internet minus stuff that competes with one of our product offerings" connectivity, or "Internet minus stuff that only a few people use that we'd rather not have to support" connectivity. I have the same gripe with ISPs and telcos who sell "unlimited" access plans where "unlimited" is apparently being defined from some secret telco-only dictionary that really means "limited".

I think the Internet pipe should be just that - a pipe, not a filter. Add-on services can have any manner of add'l features and restrictions, but in order to retain the benefits of common carrier (and more recently, safe harbor) status, ISPs should provide Internet access as close to unfiltered as it is possible to deliver (abusive behavior notwithstanding), with filtering as yet another revenue-generating add-on (make it the default, even - just leave the option for an unfiltered experience, with strict neutrality towards apps and protocols). Anything else lets existing, established players determine what emerging apps and protocols will be successful, which artificially limits innovation and new markets and technologies.

Unlimited is always Limited Dan Campbell  –  Apr 12, 2010 10:54 AM PDT

Regardless of bad or misleading marketing language, there is no such thing as "unlimited" in our practical world.  Even if an ISP didn't differentiate between applications in any way, is it fair to have any and every possible expectation in terms of service level without regards to what that corresponds to technically, whether it is even technically feasible or, if so, whether it can be economically deployed and marketed?  E.g., what's to stop me from expecting that "unlimited" means I should have a full dedicated and consistent Gbps at all times, even though that isn't really technically feasible for the masses right now?  Who's to say that I shouldn't be able to download a HD movie in a millisecond, even though we can't do that yet either?  There are always practical, technical and economic limitations.  Even when a restaurant offers "all you can eat", it really isn't.  It's a general representation of the service that a reasonable person would receive.  But it certainly won't be unlmited if, say, an entire 50+ person NFL football team showed up at the same time and expected to stay the whole day.  First off, you may not have enough seats to even sit them all at once; then you may not be able to prepare food fast enough; then you may run out of at least some or all of the food; and eventually you'd have to call it quits and ask them to leave if they camped out the entire day, expecting a truly indefinite and unlimited experience.  There are always practical limits, otherwise your business model goes belly up in a hurry, regardless of the marketing language used (often unfortunately) to characterize that service.

In the broadband world, you are getting broadband with reasonably "high" speeds and reasonably "unlimited" service (with a nod to the ambiguity and relative nature of those terms from service provider to service provider, region to region, timeframe to timeframe) for very low prices like $40/month simply because the providers have to use an oversubscribed shared infrastructure approach to keep prices low.  That's networking, or at least it is "broadband" networking as we know it. A truly "dedicated" service is called "leased lines", and they are more expensive and have their own limits (the speed that you are willing to purchase and pay for.) A T1 to your home would be much more expensive and probably ultimately slower than your broadband link.

Few telecom services are or ever have ever been unlimited, even flat rate PSTN service.  You may usually get "unlimited" service and usually get dial-tone no problem, but that's just the erlang numbers working out nicely.  Think 9/11 and the fast busies we were getting.  That showed that even the 100 year old telco network may get congested under certain unexpected traffic patterns, blocking your "unlimited" service.  Cell phones in DC (and I supposed NYC and other areas) were useless in the first few hours of 9/11.

Nothing is ever really unlimited.

agreed - which is why it irritates Scott Francis  –  Apr 12, 2010 12:35 PM PDT

agreed - which is why it irritates me to offer a service that's advertised as "unlimited", where "unlimited" actually means "if you exceed a (published or unpublished) limit, we will cap, throttle, charge or disconnect you". There's a big difference between a service that's marketed as unlimited but is limited in theory (PSTN), and a service that's marketed as unlimited in outright contradiction of an artificial limit imposed by policy. It's that latter (exemplified by "unlimited" data plans from mobile phone service providers) that really chaps my hide. I think providers should be required to adhere to truth in advertising/marketing laws in this regard.

(not that this has much to do with the main thrust of SRS' article; apologies for the threadjack.)

Semantics in marketing language Dan Campbell  –  Apr 12, 2010 1:12 PM PDT

Yes, there's always issues when it comes to the marketing folks putting the product on the street and pitching it to the often-non-technical public.  It doesn't even matter what industry.  Sure, they cannot advertise falsely and there should be consequences if they do, but it's not always that easy to determine that the advertising was false at all, much less intentionally.  Our wonderful world of language is always ambiguous at best.  A reasonable person can easily argue that "unlimited" in the broadband world means (barring outages) that I have unlimited access to the service and may use it whenever I want, as often as I want, without being subject to any kind of time-based or similar metering typical of legacy voice, mobile phones, dial-up Internet and other services.  (I intentionallyl left out metering by byte counts for the moment.) That reasonable interpretation says nothing about application differentiation and treatment in Internet services, whether they are fair or not, or whether they negate the term "unlimited" as I just defined it.  I would argue that it doesn't.  And prior to the P2P issue, there really was no "limit" in this regard; now with all the NN talk, we are back to byte counts and other types of metering being discussed.  Fortunately they are relatively high so they don't affect the average user.  Back to the definition of "unlimited", a similarly reasonable person could interpret it the way you and many others do, that it means that I can download whatever I want whenever I want no matter now much data it is, no matter how agressive the application is or what load it presents to the network, or how it (negatively) impacts other subscribers (e.g., again P2P).  That might be a similarly fair interpretation, but it's not technically or economically realistic right now.

Semantics are always tough, particularly in product marketing.  At least it's better than the early days of DSL when I remember angry subscribers calling up quoting textbook-level theoretical DSL max data transfer rates, annoyed that they weren't seeing them.  You can't blame that on the marketing folks, but the subscribers were still annoyed.  Now that we've gotten into services without clear-cut hard limits (like voice), ones that are really REALLY built on the beauty of statistical multiplexing and the burstiness of IP, it gets dicey.

Unlimited does not equal Dedicated Dan Campbell  –  Apr 12, 2010 1:26 PM PDT

I thought of a better way to put it.  I think too many of us make the leap from "unlimited" (however misleading that may be) to equal "dedicated to me".  That's seldom true, particularly for most telecom services.  It's like getting an "unlimited" membership to a gym.  You are permitted to access the gym whenever you want (when it is open), but that does not mean you have the gym to yourself or that you won't wait in line for the stairmaster or bench if you go to the gym during busy times.  And when it's busy, you have to let others "work in".

There's some blame in the marketing department for misleading advertising, but I also think that consumers automatically assuming that "unlimited" is equal to some sort of license that dedicates a service (or some service level within a service) exclusively to them are being unrealistic.  Few systems are built that way.  It's not economical or practical.

sure - but when I buy a Scott Francis  –  Apr 12, 2010 2:45 PM PDT

sure - but when I buy a service that's marketed as "unlimited", I expect to be able to use it as much as I want, as often as I want, without running into (especially) an artificially-imposed limit. Slowness and artificial 5GB/month data caps are apples and oranges - if e.g. AT&T;wants to sell me a 5GB/mo plan, that's fine - but don't sell it to me as unlimited.

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