Comcast Order: What to expect Aug 1 and beyond

When several media outlets simultaneously report upcoming FCC decisions, you can be sure of one thing: one of the commissioners leaked it. That's what happened this past Friday, when AP, WSJ, and others all noted that "according to FCC officials," three of the five Commissioners voted to find that Comcast was in violation of FCC policy. Those three Commissioners will undoubtedly be Chairman Martin, Commissioner Copps, and Commissioner Adelstein. Today, Commissioner McDowell published a Washington Post Op-Ed [which Mark Cooper answered] that all but declared that he was going to vote against the measure. The official vote will go down this Friday, August 1.

[Update: Oh snap! The politicking is bleeding into the WSJ Op-Ed page, and the NYT Op-Ed page too. And now we've got the house Republican minority leader trashing the decision on the eve of its announcement.]

The word from inside the beltway was that it was touch-and-go for the last week as to whether or not the order was going to go through. The biggest debate appeared to be complex jurisdictional issues. Comcast has been arguing 1) that the Commission could not enforce the non-binding 2005 "policy statement" without first passing rules and 2) that in any event it lacked statutory authority to intervene based on broadband's "deregulated" Title I status. Martin himself said in 2005 that, "policy statements do not establish rules nor are they enforceable documents." This thrilling administrative law debate went roughly as follows:

Free Press: The FCC has jurisdiction to act, based on 8 different statutory sources. Also, the FCC frequently exercises its power to act via adjudication rather than rulemakings. Oh, and the cherry on top is that Comcast is currently arguing in federal court in California that the FCC does have jurisdiction over these matters.

Comcast: No, those clauses don't give the FCC jurisdiction to act. Plus, Free Press has changed it's story since its original complaint where it asked the Commission to enforce the policy statement. It is now asking the Commission to enforce particular statutes.

Free Press: We haven't changed our story, and it doesn't matter regardless. Oh and by the way, we also have a bunch of legal scholars that say that the Commission has jurisdiction.

Comcast: The part of the statutes you cite are just preambles and statutory statements of "policy", which the D.C. Circuit Court says are "not an operative part of the statute and [do] not enlarge or confer powers on administrative agencies or officers."

Media Access Project: Comcast was warned that the FCC would do this if they discriminated. Oh, and the Sixth Circuit seems to say that there is yet another statutory basis for jurisdiction.

Free Press: Yeah, what they said.

Comcast: We've retained a DC law firm which says that the FCC does not have jurisdiction.

Free Press: I think we've stated our case.

Does this mean that the Net Neutrality crowd "won"?
Getting the FCC to take action on this issue was a battle, but not the war. Many considered it unthinkable that anything would happen on this front until the next administration. This moves the ball in their direction but the game is far from over. Free Press has already posted two things on their blog in celebration.

What did the Net Neutrality crowd win?
It's unclear exactly what is in the order. According to news reports, it doesn't include a fine on Comcast. It probably includes requirements for them to stop doing whatever they've been doing, and to clearly disclose their "network management" practices. This is far from a broad neutrality mandate. The order probably won't lend a great deal of clarity to the question of what constitutes "reasonable network management." There is no broader rule from the commission, which would likely carry more power and clarity than the ad hoc approach of adjudication. There is certainly nothing with the force of statute.

What Happens Next?
Comcast sues the FCC. This will happen immediately. The case will go directly to Appeals court because suits always skip District court when they're appealed from the FCC. Comcast will argue many of the same things they argued in the proceeding. They will discuss how the Brand X case placed broadband clearly within "deregulated" Title I. Title I is essentially the introduction to the Communications Act, and is pretty thin on any details. Comcast will attack whatever statutory ground the FCC claims for its decision. This will come down to questions like whether the Commission can construe general language of Title I to give them authority to take the specific actions in the order, or whether other sections of the Act which appear to apply to other technologies (like common carriers) can actually apply to cable. They might even get down-and-dirty and start talking about the 1979 decision FCC v. Midwest Video Corp. decision that said that the Commission did not have jurisdiction to impose common carriage on cable because cable was a “broadcast” service. Who knows how this will come out, but Declan McCullaugh over at CNet concludes (without much analysis) that the FCC "probably can't police" the order. In the meantime, the stock price of Sandvine (the company that makes Comcast's "traffic shaping" hardware) will probably continue to tank.

But what about nipples?
I'm glad you asked. The recent 3rd Circuit decision invalidating the FCC's finding of indecency in the "wardrobe malfunction" incident actually relates to the current situation. In the decision, the Court found that the FCC's fine was "arbitrary and capricious" and that there was no clear statutory basis nor precedent for the fine. Some of Comcast's arguments are sure to echo this reasoning, and they appear to feel emboldened by the 3rd Circuit decision even though the subject matter is quite different. [Update: Free Press et al. rebut this argument]

Where does this put the Net Neutrality fight?
Neutrality proponents have somewhat more confidence at the FCC when making complaints, and this has whole ordeal has probably put more fear in the hearts of broadband providers that would like to discriminate against traffic. The inevitable appeal provides another stage on which to debate neutrality. However, neutrality proponents don't have as strong of an argument that the FCC isn't doing anything so we need Congress to step in. Still, from all appearances, the next Congress will be far more open to the idea of legislation (although most people don't think it's going to happen in the first session).

Well Steve, what do you think?
Adam Thierer (from think tank Progress and Freedom Foundation) commented that this FCC decision is evidence that the regulatory sky is falling on liberty's head, and I replied. [Update: The PFF crew continues to pile on, with even the ideologically aligned Tim Lee telling everybody to chill out. Hance Haney can't help but get in on the bashing.]

A Reply to Nachbar

All right, I'm in final stages of thesis editing and I thought I'd post some excerpts (excuse the still-rough footnotes). In today's excerpt, I discuss Thomas Nachbar's recent article The Public Network. I had initially read Nachbar's earlier version of this paper, which he presented at TPRC 2006. This version was entirely a historical accounting of open access mandates in communication law (or non-discrimination, depending on your personal preference). The paper was absolutely fundamental in my understanding of communications law. In this latest version, he adds substantial sections in which he analyzes present debates in net neutrality and spectrum auctions in light of his historical account. I disagree strongly with his conclusions.

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Thomas Nachbar has argued that the ideal non-discrimination rule would prevent user-based discrimination but allow carriers to discriminate based on use. Under this regime, providers would be able to choose which services they support (and how they prioritize or discriminate among them) but they would be required to offer the same deal to everyone. Google could not pay for faster delivery than Yahoo. He reasons that user discrimination is easier to define than use discrimination, and less prone to regulatory abuse. He envisions this user-based neutrality as enforced by “standards” and not law or formal rules.[1] Furthermore, he claims that mandating uniform treatment of all packets would discourage applications that require prioritization or quality of service guarantees, making it a type of discrimination itself. To be sure, networks that treat all traffic uniformly make it more difficult to use certain applications. However, Nachbar’s core criticism appears to be not that someone will be choosing how to prioritize, but rather that in some neutrality regimes the government would be choosing. The best entity to choose, on his account, is the last-mile provider.

I disagree. Both use and user non-discrimination should be policy goals. It makes sound economic sense, it is consistent with historical non-discrimination precedent, and supports internet ethos of diverse uses and abundance of peers. Historically, use and user they were closely linked, and non-discrimination in one area could ensure non-discrimination in the other. For example, the Computer II rules mandated only that carriers not discriminate based on the phone number called. However, because of the simplistic circuit-switched technology (and the Carterphone right to attach devices), the rules ensured that use-based discrimination would not occur. Today, user-based discrimination protects only against a subset of harms, which in any event might already be addressable under antitrust doctrine.[2] It does not ensure that carriers support applications that they do not think will be profitable, or that compete with their non-internet offerings,[3] or that have not yet been invented. The problem is that surrendering use-based discrimination to last-mile providers would subject the general-purpose infrastructure in the interest carrier-profit-oriented incentives. In fact, it discriminates against users with business models or non-commercial modes of production that rely on technology uses not approved by the carrier.[4] The technology of the internet presents us with a choice we have not had to make historically because user-based neutrality has always implied use-based neutrality. Nachbar is prepared to give up on use neutrality, while I am not.

One way to maintain use-based non-discrimination by carriers would be to place prioritization control in the hands of the users. Most content/application providers have the opportunity to exercise this control by going to any number of competitive backbone providers. Different backbone providers ensure different levels of quality-of-service guarantees for common metrics like latency, throughput, and jitter (at least, up to the edge of their networks). End users, who are accessing this content or these applications or are connecting with each other in peer-to-peer fashion, do not have the ability to choose different prioritization via competitive providers or by specifying preferences to their provider. Indeed, even across-the-board neutrality may disfavor particular applications users wish to use, although this may be more appropriate and efficient than the last-mile provider’s blanket imposition of prioritization. A better solution would allow end users to easily control the prioritization of their own traffic, within the tier of service that they have purchased from their provider. Such a solution might implement a more sophisticated “Type of Service” style component into some layer of the network protocol, after being defined via a standards group such as the IETF.[5] This approach recognizes that different users have different usage needs, and places the control in their hands. It refuses to foreclose on new uses simply because the network owner did not think of them first, and catalyzes innovation at the “edges.” It is not true to absolute neutrality, but it is true to fundamental principles of non-discrimination and the internet ethos. Such an approach is unlikely to garner initial favor with carriers because it preserves user control, because it nevertheless resolves their “congestion” justification, and because it would take more technical and cooperational work than blunt discrimination. The appropriate policy path to this outcome might involve a use-neutrality mandate on last-mile providers with an exception for user-specified, standards-defined prioritization.

[1] It is unclear what these “standards” might be, other than the existing standards within the internet protocol, which have clearly been ignored in cases such as the recent Comcast/BitTorrent back-and-forth. As such, I am not sure what real force they would bring to bear on the situation aside from the unsustainable ad hoc complaint adjudication that the Commission is currently undertaking.
[2] I am skeptical and discuss this in detail earlier in the thesis.
[3] Although Nachbar seems to think so (eg telephony and video)
[4] eg, p2p
[5] Reed at the Harvard hearing. “There were a wide range of actual standards that would allow Comcast to manage and prioritize traffic, including diffserv, ECN, RED...” http://www.fcc.gov/broadband_network_management/022508/reed.pdf. One might add to this list the RSVP protocol (RFC 2205) and other methods that use flow-based prioritization (such as the method described in J. L. Adams, L. G. Roberts, A. Ijsselmuiden, Changing the Internet to support real-time content supply from a large fraction of broadband residential users, BT Technology Journal, v.23 n.2, p.217-231, April 2005). Some of these tools can be used by network operators to choose their own discriminatory practices, or they might be implemented in such a way as enable user-based control. Early internet engineer David Clark recently remarked (video recording available at http://www.fcc.gov/broadband_network_management/hearing-ma022508.html with quote at 4:24:45)

I don't like the idea of the ISP assigning quality of service to an application. If there is going to be any discrimination in terms of quality of service that's associated with some packets rather than others, I would prefer that the bits which select those packets for enhanced service be set by the user. The user could say 'this telephone call is really important. I want this telephone call to go through.' Imagine that in any given month, ten percent of your traffic could be high priority. You could say, 'this is it, I want it here.' It could be my choice as to whether that's a phone call or a game, or I'm trying to get a bid into eBay or whatever I'm trying to do. I would like the user to be able to assign those priorities. If you look at the way that internet telephony is done today, those bits are set by the phone device. It's not set by the ISP. It's the phone device that says, 'this is a phone call and therefore I will set these bits,' and if the ISP chooses to honor these bits then these packets will go through better. That's something that could be superimposed on top of the basic idea of usage quotas.

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Say "No" to Filtered Nationwide Broadband

I recently joined the Berkman Center for Internet & Society as a fellow, and one of my first efforts was to help draft some comments for the FCC. Many of the folks at the Center were disturbed by the Commission's recent proposal to mandate content filtering on the "AWS-3" band of spectrum it plans to auction off for broadband internet service.

From the summary:

"The Internet is distinguished by its flexibility as a platform on which new services can be built with no pre-arrangement. While requiring filtering of known protocols in itself raises serious First Amendment conflicts, forcing the blocking of unknown or unrecognized traffic hampers both speech and innovation."

You can read our full comments here, and a blog post about it here.