The cable industry and FCC Chairman Kevin Martin have both opposed bills to mandate Net neutrality, yet they hardly sounded like allies at a Senate hearing Tuesday. Of course, Martin and the National Cable & Telecommunications Assn. haven't agreed on much during his tenure. But the split over Net neutrality on display yesterday reflects a fundamental difference over what Internet providers are obligated to give their customers. The NCTA argues that Job No. 1 is fighting congestion. Martin, on the other hand, puts a top priority on preserving liberty -- not just for consumers, but also but for commercial users as well. That puts him on a collision course with cable and DSL providers, setting up a battle over what the FCC has the power to do.
Kyle McSlarrow, president and CEO of the NCTA, told the Senate Commerce Committee that, in essence, everything was peachy online:
The disaster scenarios voiced by network neutrality proponents for many years have never happened. In fact, the opposite has happened -- the Internet is booming without regulation. There is quite simply no problem requiring a government solution.
One reason for that success, McSlarrow said, has been the way cable ISPs have managed their networks. "Putting every network management strategy up for debate before regulators would severely hamper the ability of network providers to ensure high-quality and reliable Internet access for their subscribers," he warned. "Depriving network operators of certain bandwidth management tools only makes the network less efficient for everyone."
In his testimony, Martin reiterated the FCC's four principles on broadband, which hold that consumers are entitled to access or use the (legal) content, applications and devices of their choice, as well as to competition among broadband providers. ISPs should be able to perform "reasonable network management," Martin said, but their techniques need to be fully disclosed. Consumers need to be told to know the limits ISPs might place on their bandwidth. And if the ISP manages bandwidth in ways that aren't content- or application-neutral, Martin said, they need to be "tailored to resolve the particular harm identified to the network in as narrow a manner as possible."
He went on to give an interim report on the commission's investigation into Comcast's interference with BitTorrent uploads. The probe isn't finished, but Martin laid out several pieces of evidence that suggested Comcast was interfering with legal file-sharing applications in ways that weren't confined to congested segments of its network. He also questioned whether Comcast's pledge to use a different, more neutral approach to managing bandwidth by the end of the year meant that it would abandon its current approach.
What the commission is trying to protect, Martin said, is the open, vibrant nature of the Internet. That's essential to the firms creating content, services and software as well as the people consuming them, he said. Yet he also insisted that Congress doesn't need to help the FCC in this endeavor. Federal law and a 2005 Supreme Court ruling give the commission all the authority it needs to enforce the principles.
If it tries to use that authority, however, it can count on a fight from the NCTA. When asked if the FCC could bring an enforcement action against an ISP for violating the four principles, McSlarrow said, "It's not even a close call; the answer is no," according to Anne Broache at News.com. Oddly enough, Martin and McSlarrow may have helped proponents of Net neutrality legislation make their case for Congressional action. The former laid out a strong public-policy argument in favor of regulation, and the latter contended that such rules couldn't be enforced without new laws.
Prior to the hearing, Vuze released the results of tests that hundreds of its users have done on their broadband connections in an attempt to identify ISPs that were surreptitiously blocking uploads. Bear in mind that Vuze's BitTorrent-powered video service deals only in licensed content. It's hard to draw any definitive conclusions from the unscientific survey, whose methodology is open to question. But the data raise questions about how Cogeco in Canada, Cablevision, BellSouth, AOL and Tiscali in the UK managed their bandwidth. Vuze users in selected areas served by those ISPs encountered interference with their transmissions 15-19% of the time, in the same range as Comcast users did.
Photos of McSlarrow and Martin are courtesy of the NCTA website.