The FCC Set To Give The Net An Unlikely Victory

If all goes as we anticipate, a new era for the Internet could begin on Aug. 1, 2008. On that day, the Federal Communications Commission (FCC) is expected to decide that Internet users have rights under the communications law.

This is a spectacular victory, because not long ago the thought that a Bush Administration FCC would actually enforce its 2005 principles for an open Internet would have been laughable. The principles were the product of intense negotiations around an order that took telephone company DSL service out from under the protections of the Communications Act that protected consumers for 70 years. Democratic Commissioners Michael Copps and Jonathan Adelstein got the principles as the best deal they could get at the time from FCC Chairman Kevin Martin.

Now, thanks to circumstance and hard work, the Commission will make those principles into something concrete and meaningful. The primary circumstance is that the culprit here is Comcast, the large and arrogant cable company that's the leader of an industry that has had a running battle with Martin over a number of issues for the past couple of years. It was Comcast that used hacker-like practices to curb the use of a legal program, in defiance of accepted Internet technical custom and practice. It was Comcast that denied using those tactics. And it was Comcast that showed enormous disrespect to the Commission by using paid seat warmers to pack a hearing in Cambridge, Mass., earlier this year.

Now, Martin is leading the effort to curb Comcast's atrocious behavior toward Internet users, and disrespect to the Internet. And despite his heroic efforts on the 2005 principles and many speeches favoring Net Neutrality and an open Internet, it was the reluctant Adelstein who cast the last of the three votes (with Martin and Copps) in favor of what will be a bipartisan order that will assert the Commission's jurisdiction over Internet services while smacking down Comcast.

Whatever the Commission does on Aug. 1 will serve as a widespread warning to the rest of the industry, to telephone and cable companies, regardless how the industry spins it. Just as the Commission in March, 2005 made Madison River Communications of North Carolina the poster child for a regulated telephone company blocking Vonage's Internet telephony service, so will Comcast be the poster child for its behavior toward Internet users. There some legal differences between the two cases. Madison River entered a consent decree and paid a fine; Comcast will not have a settlement and will pay no fine (although it sure deserves one.)

At the heart of the decision is the realization that government does have a role - to play referee when the game gets out of hand. It was that realization that first got government into the regulation of radio in the 1920s, and it's just as true now. An industry working together will only go so far some when some in the sandbox don't play well with others.

FCC Commissioner Robert McDowell, who opposes punishing Comcast, missed that point when he wrote in The Washington Post on July 27 that the better way to handle the Comcast issue was by collaboration over regulation. McDowell wrote: "If we choose regulation over collaboration, we will be setting a precedent by thrusting politicians and bureaucrats into engineering decisions."

Here's the rub. There is a mechanism for such collaboration. There is an Internet Engineering Task Force, made up of those who understand the inner working of the Internet best. As one of those Net luminaries, David Reed, testified to the FCC at the Cambridge hearing, what Comcast did was outside the bounds of acceptable practice. Collaboration broke down. Privately, some industry executives express nothing but disdain for the IETF, saying that the organization is simply a bunch of engineers with unenforceable standards.

This is where McDowell, in the same op-ed article, got it right: "If they (collaborative groups) can't reach an agreement - which has never happened - then government could examine the situation and act accordingly." This was just such a case. Despite the attention paid to Comcast, and the less attention paid to Cox, which is using the same techniques, neither company has stopped doing what it was doing - disrupting the traffic of Internet users for the most spurious of reasons. There have been a series of announcements from Comcast about how the company will work with this company or that to "solve" the problem, but a few words about talking of a potential agreement some day won't cut it.

Despite Comcast's protestations, the complaint against it by Free Press and Public Knowledge (PK) showed through the technical work of engineer Robert M. Topolski, that Comcast engaged in this bit "throttling" at all times of the day and night, not simply at peak times when traffic management might be called for. The technique used disguised the "reset" packets to terminate a peer-to-peer session as coming from the users involved, when in fact they came from Comcast.

The FCC's actions on Comcast won't be the end of the fight for a free and open Internet. We will continue to push for more comprehensive rules and for legislation to put the issue to rest once and for all.

On another level, this proceeding could be the bellwether of FCC actions to come. Next up in this sequence of big network companies pushing their weight around is the petition PK (my day-job employer) filed to make certain that companies like Verizon can't discriminate in how they give out access to text messages and short codes, as they did with NARAL, the pro-choice group. The rights of the millions of people who send text messages need to be protected, too. That will come another day.

Follow Art Brodsky on Twitter: www.twitter.com/artbrodsky

Comments

[jamalystic]

I'm not too enthused on the likely outcome as many people are simply because net neutrality is slowly becoming a farce. We are increasingly pushing the ISPs ona slippery slope and this would not be good for the future of the internet: Net Neutrality Violations: Worth a Closer Look(http://www.internetevolution.com/author.asp?section_id=539&doc_id=160123&F_src=flftwo)

[rkrenke]

Introducing more competition into the telecom industry would also help alleviate some of these concerns. We are forced to use Comcast as our ISP because they and AT&T are our only choices.

Deregulation has failed - without legitimate competition, these corporations will continue the same deceptive practices they've used for years. Time to make this market more competitive for smaller corporations who are willing to provide the services and access we deserve.

[vippy]

Deregulation is would be fine if we had many competitors but I thought it was prohibited to buy
up other companies and merge thus alleviating all competition. That defeats the purpose.
In this case we need regulation once more. Manipulation of the markets should be outlawed
and stricter controls should be enforced for us consumer to have a fighting chance.
On top of that those few companies left then agree on price fixing. Unbelievable. China has
more internet surfers than the US and that is something to be recognized, our cell phones
are junk compared to Europe's. Are we or have we turned into a 3rd world already?

[incinerate]

Finally, we have 3 FCC members on the panel who support some basic rights of Internet users. Although the main issue was Comcast secretly throttling Torrent users with Sandvine (and then lying about it) this is yet another tiny victory for the left against Corporate arrogance, the Bush regime and neo conservative censorship.

Although the Wall Street Journal, in its screed against regulation and defense of Comcast identifies these public interest groups as the "bad guys"...we know otherwise:

"network neutrality" industrial policy being pushed by high-tech rivals like Google and pro-regulation advocacy groups like MoveOn.org, Consumers Union and Free Press."

"... a potential Barack Obama Administration to take an Internet industrial policy who knows where.... and the two Democrats on the five-member panel."

http://online.wsj.com/article/SB121737525991595145.html

[Pupadup4oBama]

I know this is a little off subject - but in regards to comcast - I am SO happy that we got rid of our cable.
I LOVE not having to pay this robber barons anymore. Paying over $80 a month for crap and I can't even choose which channels i want - a la carte would be nice!

Anyways, this sounds like great news - but as DeaninPhilly said - I wish there had been a little more background info in the article.

Thanks!

[Bobrobert]

oh well

freedom on the internet is probably history

sad

[Deaninphilly]

Though I know the subject about which the article was written, it would have helped if you would have given a brief background to those who don't know what is going on in your article.

[Chewelahboy]

We will take any victory right now, no matter how small. No time for partying, however, the big boys are relentless. They want Our Internet, and will do anything to get it.

Thanks for the post.

[aflyinyoursoup]

This is one we can't allow to slip away. After the FCC decision, we have to overwhelm congress to fight thye good fight.