FCC Chairman Kevin Martin has taken a lot of flak since he announced last week that the commission was ready to rule that Comcast improperly interfered with BitTorrent traffic. The Wall Street Journal's editorial board groused that Martin, a Republican, was "poised to expand government regulation of the Internet." Fellow Republican commissioner Deborah Taylor Tate accused Martin and the commission's two Democrats, Jonathan Adelstein and Michael J. Copps, of "issuing broad mandates to protect the few" instead of looking out for average Internet users and intellectual property owners. ("By requiring ISPs to `carefully tailor' their network management practices, I am concerned that we will potentially be stripping them of the important tools they use—and we need-- to purge their platforms of illegal content which negatively impacts every type of intellectual property, from software to pharmaceuticals to of course, songwriters and motion pictures." Who knew that counterfeit medicines were made through file sharing?) And the third Republican on the FCC, Robert McDowell, complained, "For the first time, today our government is choosing regulation over collaboration when it comes to Internet governance. The majority has thrust politicians and bureaucrats into engineering decisions."
But it's worth remembering the difference between what Comcast actually did and what its defenders seem to think it did.
The Commission rejected Comcast’s defense that its practice constitutes reasonable network management. While Comcast claimed that it was motivated by a desire to combat network congestion, the Commission concluded that the company’s practices are ill-tailored to serve that goal for many reasons: they affect customers who are using little bandwidth simply because they are using a disfavored application; they are not employed only during times of the day when congestion is prevalent; the company’s equipment does not target only those neighborhoods suffering from congestion; and a customer may use an extraordinary amount of bandwidth during periods of network congestion and will be totally unaffected so long as he does not utilize an application disfavored by Comcast.
In other words, ISPs need to use "network management" tools to manage their networks. As Copps put it, "We do not ... prohibit carriers from reasonably managing their networks. And we do not prevent engineers—either now or in the future—from coming up with new and better ways to serve their customers."
McDowell argued the FCC did not gather enough evidence about Comcast's procedures, but it obviously found enough to sway Martin, not exactly the most regulatory kind of guy (except, possibly, where cable is concerned). Again, the Commission's majority seemed motivated here by a desire to protect competition, not BitTorrent. The popular file-sharing protocol would still be vulnerable to congestion-reducing techniques that affected all bandwidth-intensive applications, including high-def video streams and FTP transfers. It might also lose favor among users if their ISPs set bandwidth caps and imposed extra fees on those who exceeded them. Such approaches to managing networks wouldn't be affected by the FCC's order today.
And as for Tate's point, cutting off BitTorrent or p2p applications in general will hardly stop piracy. There are way too many other tools for illegal downloading and unauthorized streaming. But a broad anti-p2p approach would stop licensed video services from the likes of Vuze and Joost from competing with broadband providers' video-on-demand offerings. And that's one of the main reasons the FCC's majority took the action it did today.
Addendum -- I almost forgot to link to the LA Times' editorial on the subject. Our take was, umm, not the same as the Journal's.