August 4th, 2008
FCC's Comcast ruling: Not unreasonable
Andrew Orlovsky delivers a scathing attack on the FCC decision against Comcast. Orlovsky’s sources tell him the FCC’s statement (PDF) was drafted and then redrafted after the vote, resulting in a self-contradictory document.
But the evidence Orlovsky quotes for this alleged schizophrenia is contained not in the official statement, but in chairman Martin’s personal statement (PDF) (all five commishes released their own). Martin says:
We do not tell providers how to manage their networks. They might choose, for instance, to prioritize voice-over-IP calls. In analyzing whether Comcast violated federal policy when it blocked access to certain applications, we conduct a fact-specific inquiry into whether the management practice they used was reasonable. Based on many reasons, including the arbitrary nature of the blocking, the lack of relation to times of congestion or size of files, and the manner in which they hid their conduct from their subscribers, we conclude it was not.
Of course, the FCC is telling Comcast how to manage its network. The word is “reasonably.” The FCC is asserting its authority to insist on reasonable management that doesn’t discriminate on content. The official statement is eminently clear on this point:
The Commission concluded that Comcast’s network management practices discriminate among applications rather than treating all equally and are inconsistent with the concept of an open and accessible Internet. Indeed, the Commission noted that Comcast has an anticompetitive motive to interfere with customers’ use of peer-to-peer applications.
The Commission also concluded that Comcast’s practices are not minimally intrusive, as the company claims, but rather are invasive and have significant effects. . . . . The Commission also found that Comcast’s conduct affected Internet users on a widespread basis. Indeed, Comcast may have interfered with up to three-quarters of all peer-to-peer connections in certain communities.
Orvolsky quotes with pleasure from Commissioner McDowell’s dissenting statement that the FCC has no authority to regulate.
If Congress had wanted us to regulate Internet network management, it would have said so explicitly in the statute, thus obviating any perceived need to introduce legislation as has occurred during this Congress. In other words, if the FCC already possessed the authority to do this, why have bills been introduced giving us the authority we ostensibly already had?
