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The Comcast Order and Network Neutrality

The FCC issued its opinion and order in the Comcast dispute. There will certainly be a flurry of press and blog coverage over the next few days. Some will champion the decision, and others will attack it. There is plenty to digest. My initial thoughts are below the fold.

I think the FCC did an admirable job. This a very good first step. The FCC held that Comcast violated “federal Internet policy” embodied in various statutory provisions and perhaps best reflected in the FCC’s Policy Statement. In reaching this legal conclusion, which as noted below raises various jurisdictional questions, the FCC determined that Comcast’s selective/discriminatory interference with its customers use of peer-to-peer applications, like BitTorrent, was NOT reasonable network management and was NOT a reasonable means for managing congestion (for reasons that track the arguments Barbara van Schewick and I made in our article — application discrimination ends up being both overinclusive and underinclusive; there are nondiscriminatory means for managing congestion, etc.). In my opinion, these are important determinations that the FCC based on a strong record.

The FCC order defends the FCC’s assertion of jurisdiction, and this will certainly be the subject of an appeal. As I see it, the decision is important regardless of what happens in court: either it is upheld and serves as an important stepping stone, or it is struck down on jurisdictional grounds and serves as an important stepping stone for legislative action. For now, I’ll leave the jurisdictional issue aside and focus on three points that may be important.

First, the FCC expressly chose “to adjudicate disputes regarding federal Internet policy on a case-by-case basis” rather than rulemaking. In the order, the FCC offers three justifications for this approach: (1) the “Internet is a new medium, and traffic management questions like the one presented here are relatively novel.” (2) the Internet is “complex and variegated,” and as such, various providers use various management practices for various reasons; general rules might apply to all of these systems, the FCC acknowledges, but at this point and on this record, the FCC remains “uncertain that a one-size-fits-all approach is good policy” [though some widely adopted standards do apply across all of these systems, right?] (3) a case-by-case approach best “comports with congressional directives and Commission precedents.” I don’t follow the third argument exactly; the FCC brings out the mantra of a “vibrant and competitive free market” and a “minimal regulatory environment” as if those slogans point to case-by-case adjudication over rulemaking. I follow the rhetoric but not the logic.

I am glad the FCC took this step forward and adjudicated this case. But I have doubts about whether case-by-case adjudication will be enough to preserve an open, nondiscriminatory Internet infrastructure. I suspect that it will not be. The FCC found that discriminatory interference with a customer’s use of a p2p application for the alleged purpose of managing congestion is unreasonable, and this is an important determination. It could be read really broadly to suggest that discrimination based on the identity of a packet’s use (application) is unlawful; that is probably too much of a stretch; it could be read somewhat broadly to suggest that discrimination based on the identity of a packet’s use (application) for the purpose of congestion managment is unlawful (see above). Or it could be read narrowly, strictly limited to the facts of the Comcast dispute (i.e., to the use of reset packets to terminate p2p sessions for the purpose of congestion managment). Adopting a case-by-case adjudication approach tends to push toward the narrowest reading.

More broadly, “reasonable network management” still allows for considerable wiggle room and gaming. Reasonableness remains an elusive concept because it is not clear who (engineering community, law profs, industry professionals, FCC commissionsers, etc.) determines what is reasonable and according to what criteria (cost-benefit, technological community practices, other normative values? etc). In the order, the FCC relies heavily on experts in the field, which is certainly a good group to ask and rely on, but I suspect that experts will disagree about the reasonableness of many other practices, and, regardless, it is not clear to me that the technical experts are the appropriate community to decide what is a reasonable network management practice—a feasible practice, sure. A technically sound practice, sure. But it seems to me that reasonableness in this context must refer more broadly to the normative values at stake (and there are many) –anticompetitive blocking might be feasible, technically sound and commonly deployed, but nonetheless be unreasonable; same for censorship of unfriendly messages.

I suppose, for the reasons laid out in detail in various articles, I am still in favor of a pretty strong nondiscrimination rule: no discrimination in the treatment of packets on the basis of the identity of the use (application or content) or user (sender or recipient). [Query: Suppose we emphasize treatment or transport of packets and leave aside service providers that aggregate packets into files, such as mail servers or content caching servers. Does that make the rule more palatable and preserve the basis end-to-end feature?] In any event, this is a complicated issue, worthy of more attention than a blog post; so I’ll move on.

Second, on the issue of multiple normative values being at stake, the FCC emphasized the idea that an open Internet is normatively attractive, and they noted economic growth, innovation, user participation/activities, speech and other values. In footnote 203, the FCC rejects Time Warner Cable’s First Amendment arguments and notes that the commissioners believe “our action today furthers First Amendment values.” I think this remains an area that needs more attention.

Third, in its order, the FCC establishes first that Comcast engaged in an unreasonable practice and second that Comcast has very poor disclosure policy with respect to consumers. I was very glad to see the FCC distinguish these points and not conflate the reasonableness of discriminatory practices and the reasonableness (or completeness or accuracy) of Comcast’s disclosure. In the network neutrality debate, these issues are joined and muddled, on the belief that disclosure will be sufficient to enable competitive forces (educated consumers coupled with alternative service providers) to discipline network providers that practice unreasonable discrimination. While disclosure is necessary in this context, it is (probably) not sufficient.

Alright, there is plenty more to talk about, but I should sign off. Again, I think the FCC did a decent job.

Random note: Did anyone notice that the FCC declined to use the phrase “network neutrality” other than in citations?