The FCC's Comcast decision
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.
Here's an excerpt from the FCC's announcement today (for a nice summary of the action, read Jim Puzzanghera's post at the Times' Technology blog):
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.
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While I agree with the Commission's conclusions -- it's impossible to excuse Comcast's behavior as "reasonable network management" and it clearly violates the FCC's 2005 Internet Policy Statement -- it's worth keeping in mind that, until today, no one thought the FCC had plenary powers to regulate the Internet this way. In the words of Commissioner McDowell, "Under the analysis set forth in the order, the Commission apparently can do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment."
The great thing about having a polar bear as a bodyguard is that it's great for killing your enemies. The drawback, however, is that the bear ultimately hews to its true nature, and eats you. And the true nature of the FCC is to be captured by big telecom companies...
So I hope net neutrality advocates don't come to regret today's decision...
Posted by: Fred von Lohmann | August 01, 2008 at 04:23 PM
Wait -- you're not saying the FCC would do something that furthers the Bells' interests at the expense of the public's, are you? This is, after all, the regulatory body that has presided over an orderly transition from a messy competitive lineup of eight regional phone companies and five large long-distance providers to the more manageable roster of two full-service national powerhouses (and one not-so-national not-so-powerhouse). It's also overseen the ever-increasing accumulation of wireless bandwidth in the hands of established companies that know what to do with it, as opposed to start-ups and competitors that might have to bet on untested applications or business models.
Posted by: Jon Healey | August 01, 2008 at 04:36 PM
Jon, your editorial today is exceptionally clueless. Nobody takes Vuze seriously as a competitive threat to any of the major sources of legal downloads on the net. They're apparently in trouble financially as well, as they've recently opened their doors to Mininova and The Pirates Bay. In case you don't know what those services do, I'll give it to you in one word: Piracy. So the FCC ordered Comcast to give free bandwidth to a piracy service today.
Is this a victory for Democracy?
Your editorial endorses metered pricing for Internet access, which is insane as well. The alternative to an uncertain bill is to allow the ISPs to do reasonable prioritization of Internet traffic. I suggested this in an Op-Ed I wrote for your paper in the Matt Welch days, but some idiot spiked it.
And as Fred says, the FCC is the last agency you want deciding who can do what on the Internet. The only worse group to do it is Congress, where you have a collection of grandstanding shills with even less of a clue than the bureaucrats at the FCC. Congress should give the FCC some general directions and get out of the way.
Oops, they already did that and the FCC invented their own anti-cable regulations anyway.
It's a fine day indeed.
Posted by: Richard Bennett | August 01, 2008 at 07:22 PM
"Exceptionally clueless"? That's quite a distinction, given my track record. But hey, we aim high here.
The point, as the editorial made explicitly, isn't that Vuze is a competitor today. It's that online VOD services have the potential to become competitors, especially once most viewers have Internet feeds to their TV sets. If you don't see that happening soon, you might spend a day at next year's Consumer Electronics Show and see what TV manufacturers are doing. Every one of them drools at the thought of recurring revenue from services, so it's just a matter of time before they're all cutting deals like Roku did with Netflix.
It's worth bearing in mind that the FCC didn't rule out traffic prioritization. It ruled out techniques that aren't disclosed and that have no demonstrable connection to reducing congestion. The evidence showed that Comcast was interfering with BitTorrent uploads regardless of the amount of traffic on its network. That, IMHO, is the central problem with its behavior.
I'm fully aware of what Vuze has done with its service -- see my blog post on that topic (http://opinion.latimes.com/bitplayer/2008/06/expanding-the-v.html). But it's worth noting that Vuze changed its approach long after it filed the complaint against Comcast. At the time the AP and others detected the surreptitious interference, the Vuze client was the front end to a catalog of licensed content only. No access to user-created torrents, The Pirate Bay or any other 3rd party indexes or trackers.
I shouldn't speak for Fred, but since you're trying to align your position with his re: the role of the FCC, I can't help pointing out what the EFF might say about your first graf. The essence of the EFF's philosophy is that you don't judge a technology by what people do with it. Besides, Comcast wasn't ordered to "give free bandwidth" to anybody. It was ordered not to indiscriminately and surreptitiously stop customers from using applications.
As for metered services, isn't that what the wireless carriers are doing? Selling a bucket of airtime and/or bandwidth and charging people for excess usage? Aren't there more wireless accounts than broadband accounts?
Posted by: Jon Healey | August 01, 2008 at 10:27 PM
Really, Jon, you're way off base here. When you say: "It's worth bearing in mind that the FCC didn't rule out traffic prioritization. It ruled out techniques that aren't disclosed and that have no demonstrable connection to reducing congestion. The evidence showed that Comcast was interfering with BitTorrent uploads regardless of the amount of traffic on its network."
Exactly how do you know what the FCC ruled out and what it didn't rule out? They haven't made their order public, and the statements in their findings and press releases are all over the map on prioritization.
Kevin Martin said it's OK to prioritize VoIP, but it's not OK to degrade BitTorrent. I hate to break the news, but on these networks raising the priority of one thing reduces the priority of all other things. Martin also says it's wrong to do that evil "Deep Packet Inspection" like they do in porn movies, but how is the ISP supposed to know if a given packet is part of a VoIP stream if he doesn't inspect it? And the FCC certainly showed a lot of outrage over the lack of disclosure, but this was an action aimed at one company, and the whole industry is guilty of that.
There is no evidence from any credible source that Comcast's actions were independent of network load on the upstream direction, and petitioners didn't make a serious attempt to develop any. The Glasnost test is completely absurd because their test system is not a reasonable facsimile of a BitTorrent transaction.
And that far-off claim that piracy merchants like Vuze might someday become players in the video business is all very interesting, but there's a logical disconnect with your argument. If Comcast wants to stifle competitors, why don't they do something to mess with downloads rather than uploads? You've skipped about 14 logical steps in your hurry to leap to your wild conclusion. As it turns out, I've worked for a TV company, developing network interfaces. We were interested in lots of systems, Ethernet, Firewire, UWB, WiFi and HomePlug, but P2P wasn't one of them. It's simply not an efficient networking technology, and its only use is for pirated and legally free content. There's no money in that.
Tech buffs who lack engineering skills are easy to fool, and that's all that's happened here. And the worst of the suckers is Kevin Martin, a lawyer who ought to know better.
Posted by: Richard Bennett | August 02, 2008 at 04:24 AM
The FCC's ruling was so murky that there were multiple contradictions in the speeches given by Copps, Adelstein, and Martin. For example, they said that they would not allow discrimination among applications, but then said that they thought it was OK to prioritize VoIP. They also failed to explain how discrimination among applications violated their "principles," since there is no prohibition against that in them. In short, the FCC said it was punishing Comcast for secret "rules" that had not ever been published -- not even as unenforceable "principles!"
I operate a small ISP, and uncertainty as to whether we will be able to continue to operate under unspecified new rules has spooked our investors. So, just before the FCC closed the record on the proceedings, I sent a list of 20 questions to the FCC about what its policy would be. The wide range of questions shows just how much uncertainty the Friday ruling will create. Go to the FCC's site at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520035996 to read it.
Posted by: Brett Glass | August 02, 2008 at 03:07 PM