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Unhappy that the FCC supported Network Neutrality

By: Scott Bradner

A split FCC decided that Comcast had been a bad company when it interfered with specific customer traffic and told it to clean up its act in the future. As a proponent of network neutrality this should make me happy but it does not.

On August 1st the FCC commissioners voted 3 to 2 to find that Comcast had violated the FCC's Internet Policy Statement (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf) by targeting customer BitTorrent traffic and ordered Comcast to come clean about what it had been doing, come up with a plan to stop its discriminatory network management practices by the end of the year and tell its customers what it plans to do in the way of non-discriminatory network management practices after that. (FCC press release: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-284286A1.pdf - NWW news story: http://www.networkworld.com/news/2008/080108-fcc-rules-against-comcast-p-to-p.html)

In multiple ways Comcast had brought this development upon itself. The primary way was to lie about what they were doing. (I guess truth is not an option for telcos - http://www.networkworld.com/columnists/2007/103007-bradner.html) It's one thing for a corporation to lie when they might be able to get away with it but there was no chance that Comcast's initial lie that it was not interfering with customer BitTorrent traffic since the interference was easily determinable by running a simple series of experiments across the Comcast network. What Comcast did was plain dumb. They then compounded the problem by claiming that they were only impacting traffic in times of congestion - a claim also easily disproved. Once Comcast poisoned the discussion by refusing to tell the truth it almost did not matter what the facts were -- Comcast was toast.

Comcast might also have been toast even if they had not lied considering the inability of the current chair of the FCC to think clearly when it comes to cable companies. (FCC: regulating through 3D glasses - http://www.networkworld.com/columnists/2007/120407-bradner.html) In this case, the FCC Chair sided with the two Democratic Commissioners and against the two fellow Republican Commissioners. The fact that Comcast, while still not fully coming clean about what it had been doing, announced months ago that it was now working with the BitTorrent folk to develop a better way to deal with BitTorrent-created congestion on Comcast networks did not stop the FCC's action. (http://www.comcast.com/About/PressRelease/PressReleaseDetail.ashx?PRID=740)

I strongly believe that an Internet without a neutral network is not the Internet that brought the technology revolution that we are only now starting. Without a neutral network, the Internet would devolve into what too many carriers think is its purpose - content distribution from big media companies to couch potatoes. ( See El Dorado on the 'Net - http://www.networkworld.com/columnists/2006/030606bradner.html) If there were real competition between ISPs serving the residential market then the competition would likely drive an open network without the need for government imposed rules. But we cannot depend on that happening so government rules may be the only answer.

So, why am I not happy about the FCC's action? Mostly because I do not think they have the statutory authority to do what they have done. See Commissioner Robert McDowell's dissenting opinion for more details on this issue. (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-284286A6.pdf) I also think the action is more about the FCC Chair's dislike for cable companies than a systematic definition of a set of principles on what reasonable network management would include. If Comcast decides to challenge this order in court I fully expect the FCC will (again) lose and the court will tell the FCC that it does not have the authority and to back off. Then the responsibility to write rules would fall back to the FCC or congress - both of which to create rules that are unions of bad ideas proposed by lobbyists - rarely do users count or get input. That is why I'm not happy.

disclaimer: I have no idea if Harvard, the institution, is happy - I do know a lot of happy people who work at Harvard, along with some not so - but the above exploration of unhappiness is mine alone, not Harvard's.