[1st-mile-nm] Oram: Comcast Ruling Leaves FCC Job to Do

[Marianne Granoff]

A better understanding than the talking heads on TV. . .

>Andy Oram's take.
>
>  http://radar.oreilly.com/2010/04/dc-circuit-court-rules-in-comc.html
>
>
>DC Circuit Court Rules in Comcast Case, Leaves the FCC a Job to Do
>
>
>by Andy Oram
>
>April 6, 2010
>
>
>Today's ruling in Comcast v. FCC will certainly change the terms of
>debate over network neutrality, but the win for Comcast is not as
>far-reaching as headlines make it appear. The DC Circuit court didn't
>say, "You folks at the Federal Communications Commission have no right
>to tell any Internet provider what to do without Congressional
>approval." It said, rather, "You folks at the FCC didn't make good
>arguments to prove that your rights extend to stopping Comcast's
>particular behavior."
>
>I am not a lawyer, but to say what happens next will take less of a
>lawyer than a fortune-teller. I wouldn't presume to say whether the
>FCC can fight Comcast again over the BitTorrent issue. But the court
>left it open for the FCC to try other actions to enforce rules on
>Internet operators. Ultimately, I think the FCC should take a hint
>from the court and stop trying to regulate the actions of telephone
>and cable companies at the IP layer. The hint is to regulate them at
>the level where the FCC has more authority -- on the physical level,
>where telephone companies are regulated as common carriers and cable
>companies have requirements to the public as well.
>
>The court noted (on pages 30 through 34 of its order) that the FCC
>missed out on the chance to make certain arguments that the court
>might have looked on more favorably. Personally and amateurly, I think
>those arguments would be weak anyway. For instance, the FCC has the
>right to regulate activities that affect rates. VoIP can affect phone
>rates and video downloads over the Internet can affect cable charges
>for movies. So the FCC could try to find an excuse to regulate the
>Internet. But I wouldn't be the one to make that excuse.
>
>The really significant message to the FCC comes on pages 30 and 32.
>The court claims that any previous court rulings that give power to
>the FCC to regulate the Internet (notably the famous Brand X decision)
>are based on its historical right to regulate common carriers (e.g.,
>telephone companies) and broadcasters. Practically speaking, this
>gives the FCC a mandate to keep regulating the things that matter --
>with an eye to creating a space for a better Internet and high-speed
>digital networking (broadband).
>
>Finding the right layer
>
>Comcast v. FCC combines all the elements of a regulatory thriller.
>First, the stakes are high: we're talking about who controls the
>information that comes into our homes. Second, Comcast wasn't being
>subtle in handling BitTorrent; its manipulations were done with a
>conscious bias, carried out apparently arbitrarily (rather than being
>based on corporate policy, it seems that a network administrator made
>and implemented a personal decision), and were kept secret until
>customers uncovered the behavior. If you had asked for a case where an
>Internet provider said, "We can do anything the hell we want
>regardless of any political, social, technical, moral, or financial
>consequences," you'd choose something like Comcast's impedance of
>BitTorrent.
>
>And the court did not endorse that point of view. Contrary to many
>headlines, the court affirmed that the FCC has the right to regulate
>the Internet. Furthermore, the court acknowledged that Congress gave
>the FCC the right to promote networking. But the FCC must also observe
>limits.
>
>The court went (cursorily in some cases) over the FCC's options for
>regulating Comcast's behavior, and determined either that there was no
>precedent for it or (I'm glossing over lots of technicalities here)
>that the FCC had not properly entered those options into the case.
>
>The FCC should still take steps to promote the spread of high-speed
>networking, and to ensure that it is affordable by growing numbers of
>people. But it must do so by regulating the lines, not what travels
>over those lines.
>
>As advocates for greater competition have been pointing out for
>several years, the FCC fell down on that public obligation. Many trace
>the lapse to the chairmanship of Bush appointee Michael Powell. And
>it's true that he chose to try to get the big telephone and cable
>companies to compete with each other (a duopoly situation) instead of
>opening more of a space for small Internet providers. I cover this
>choice in a 2004 article. But it's not fair to say Powell had no
>interest in competition, nor is it historically accurate to say this
>was a major change in direction for the FCC.
>
> >From the beginning, when the 1996 telecom act told the FCC to promote
>competition, implementation was flawed. The FCC chose 14 points in the
>telephone network where companies had to allow interconnection (so
>competitors could come on the network). But it missed at least one
>crucial point. The independent Internet providers were already losing
>the battle before Powell took over the reins at the FCC.
>
>And the notion of letting two or three big companies duke it out
>(mistrusting start-ups to make a difference) is embedded in the 1996
>act itself.
>
>Is it too late to make a change? We must hope not. Today's court
>ruling should be a wake-up call; it's time to get back to regulating
>things that the FCC actually can influence.
>
>Comcast's traffic shaping did not change the networking industry. Nor
>did it affect the availability of high-speed networks. It was a clumsy
>reaction by a beleaguered company to a phenomenon it didn't really
>understand. Historically, it will prove an oddity, and so will the
>spat that network advocates started, catching the FCC in its snares.
>
>The difficulty software layers add
>
>The term "Internet" is used far too loosely. If you apply it to all
>seven layers of the ISO networking model, it covers common carrier
>lines regulated by the FCC (as well as cable lines, which are subject
>to less regulation--but still some). But the FCC has historically
>called the Internet a "service" that is separate from those lines.
>
>Software blurs and perhaps even erases such neat distinctions. Comcast
>does not have to rewire its network or shut down switches to control
>it. All they have to do is configure a firewall. That's why stunts
>like holding back BitTorrent traffic become networking issues and draw
>interest from the FCC. But it also cautions against trying to regulate
>what Comcast does, because it's hard to know when to stop. That's what
>opponents of network neutrality say, and you can hear it in the court
>ruling.
>
>The fuzzy boundaries between software regulation and real-world
>activities bedevils other areas of policy as well. Because
>sophisticated real-world processing moves from mechanical devices into
>software, it encourages inventors to patent software innovations, a
>dilemma I explore in another article. And in the 1990s, courts argued
>over whether encryption was a process or a form of expression--and
>decided it was a form of expression.
>
>Should the FCC wait for Congress to tell it what to do? I don't think
>so. The DC Circuit court blocked one path, but it didn't tell the FCC
>to turn back. It has a job to do, and it just has to find the right
>tool for the job.