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As Art discussed yesterday, the expected FCC decision on the Free Press/Public Knowledge complaint against Comcast for throttling Bit Torrent will be groundbreaking precedent. This is because among other things, a Bush Administration FCC will find that the agency has the authority under the Communications Act to protect Internet users from discriminatory network management practices like those used by Comcast.
But nobody should confuse “groundbreaking precedent” with an adequate solution to the problem of broadband service providers using their bottleneck powers to pick winners and losers on the Internet. Yes, the Comcast decision will be powerful and significant. But it will not be enough to check the telco-cable duopoly.
Here is why the Comcast decision has its limits: First, the decision will apply only to Comcast. Second, the decision will apply only to the peer-to-peer throttling techniques that Comcast used. In an interview Tuesday with the New York Times, FCC Chair Kevin Martin made this very clear - that the case was decided on the specific facts and that he prefers dealing with discriminatory network practices solely by case-by-case adjudication, and without a general rule barring discrimination. Third, should Comcast challenge the FCC’s decision in court (as some expect), this decision may not become final for some time to come. That is cold comfort to Internet users and companies, particularly in light of the fact that Cox Cable was found to utilize the same techniques, and that AT&T revealed that it bans the use of all peer-to-peer applications over its wireless broadband network.
So why isn't case-by-case adjudication alone adequate? And if the Comcast decision by itself won't be enough to provide full protection for Internet users as well as content, applications and service providers, what more is needed? The problem with relying solely on case-by-case adjudication is that most Internet users do not have the expertise to find out whether a particular application or service is being interfered with, and/or have the resources to bring a complaint to the FCC. Just look at the Comcast case. In 2006, computer engineering expert Robb Topolski happens to decide to investigate interference with peer-to-peer uploads and discovers that it is coming from his own ISP. Following press reports and the Electronic Frontier Foundation’s own investigation, public interest groups, led by Free Press, filed the complaint and a Petition for Declaratory Ruling on November 1, 2007. Exactly nine months and many thousands of pages of pleadings later (with FP counsel Marvin Ammori’s 112 page magnum opus on FCC jurisdiction being perhaps the most amazing filing I’ve ever seen at the FCC – you can find it in his blog post here), we will have a decision. That’s an awful lot of time and resources spent just on one case.
The other shortcoming of case-by-case adjudication without a rule of general applicability is that the default is that network providers can do just about anything they want short of outright blocking. Network providers calculate that they can take their chances that they won’t get caught or if they do, that a complaint won’t be filed or fully prosecuted. That is insufficient to protect the public. The default needs to be that network providers cannot unreasonably discriminate against any content, application or service and that if they do so, they do so illegally.
How do we reset that default? There are several options. The best option would be for Congress to make nondiscrimination in Internet access part of the Communications Act. That law could track Sections 201 and 202 of the Communications Act, which prohibit “unjust and unreasonable” discrimination in access and charges by plain old telephone service providers, and also to Internet access providers until the FCC in 1999 got the bright idea to call it an “information service” not subject to this standard. Congressional action is preferred because it eliminates judicial challenges of the FCC’s authority to require non-discrimination (this is expected to be one of Comcast's arguments in court).
The second best option would be for the FCC either to adopt a rule mandating non-discrimination or to add a fifth principle to its broadband principles. We’ve long said that the non-discrimination requirement under which AT&T now operates as a condition of its merger with BellSouth is a very good place to start. That requirement says that the merged company
will maintain a neutral network and neutral routing it its wireline broadband access service. This commitment shall be satisfied by AT&T/BellSouth’s agreement not to provide or to sell to Internet content, application, or service providers,…any service that privileges, degrades or prioritizes an packet transmitted over AT&T/BellSouth’s wireline broadband Interne access service based on its source, ownership or destination.
The net neutrality boo birds will of course say that any nondiscrimination law, rule or principle would result in hundreds of pages or regulations and dozens of unintended consequences for Internet service providers. But this wasn’t the case for the 70 or so years that telcos were barred from discriminating in the provision of landline and narrowband service, and it hasn’t been the case for the 19 or so months that AT&T has been operating pursuant to a non-discrimination requirement (nor has AT&T been harmed financially).
Nondiscrimination requirements seemingly work with little problem elsewhere in the Communications Act. We have previously suggested as a good working model Congress’ “program access” requirement and the FCC’s implementing rules, which prohibit vertically integrated cable operators from unjustly and unreasonably discriminating against competitors in the distribution of their programming. At a the recent Pike & Fischer Broadband Policy Summit, a cable industry representative admitted that only “a dozen” or so program access complaints have been filed since the law was passed in 1992. This means that the nondiscrimination default is working in a way that neither burdens cable companies nor their competitors.
So on Friday we’ll raise a glass, toast all of our public interest, industry, academic and policymaker colleagues, past and present, whose hard work over the past nine years made the Comcast decision a reality. And on Monday, we’ll get back to the business of ensuring an open Internet for all.