The FCC Releases the Comcast Complaint Order Part I — Why This Is A Huge Win.

The FCC just released the text of the Order adopted on August 1 finding for Free Press on the Comcast Complaint and Declaratory ruling and denying Vuze’s Petition for Rulemaking. You can get the pdf here.

Larry Lessig pretty much says it all with his letter commending the FCC on its decision. For myself, I see this as another in a series of important wins, building on previous wins. Read it, particularly the footnotes, and you will find reference to the C Block openness conditions, the Adelphia Transaction Order, and every other baby step along the road that proved absolutely critical to getting us this far.

And, just as with those victories, we did not imagine for one moment that we had finished our task or that we had solved our problems. The danger to an open internet that remains a platform “as diverse as human thought” in the face of broadband providers trying to convert it into a combination shopping mall, movieplex and theme park continues. But we prevented Comcast from creating an “industry standard” around blocking or degrading peer-2-peer applications and put every ISP on notice that they will need to make real disclosure of their “network management practices” when those practices block or degrade subscriber choices. That the market would not respond on its own — at least not in a positive way — is evidenced by the fact that Comcast, despite all the negative publicity, promises to change, etc., is still targeting bittorrent. To the contrary, had we not acted, I do not doubt that other broadband ISPs would, over time, have adopted this and similar techniques, and without notifying their subscribers in any meaningful way.

We have also created another positive precedent for the day when a future FCC or Congress will adopt rules that provide the level of protection we need to maintain an open and competitive internet. This FCC opinion establishes the jurisdictional basis for any future rulemaking and, while declining to adopt rules now, explicitly states that the FCC retains the jurisdiction to create rules in the future — noting that the Carterfone network attachment rules began as an adjudication and ultimately culminated in Part 68 of the Commission’s rules. Despite a raft of theories (conspiracy or otherwise) to the contrary, this Order does not weaken our efforts to get general rules or get legislation passed. To the contrary, by recognizing that rules protecting the openness of the Internet further the important interests of the First Amendment (Par. 43 n. 203), this Order strengthens our ability to get rules or legislation in the future.

While it leaves certain critical questions — such as whether a third party can pay a broadband access provider for “premium” treatment regardless of user preferences — unresolved, it does so in a way that leaves us free to come back without any bad precedent or presumption. Copps and Adelstein can continue to press for adoption of a fifth principle on non-discrimination without fear that voting for this Order somehow put them in a box.

More below . . . .

I do not expect that this Order will silence the myriad of Martin critics who cannot conceive that Martin shares at some level the same concerns about consumer protection and even free expression that we in the media reform movement share, even if he views them through a frame that distrusts regulation and is too eager to deregulate. Nor do I intend to diminish one iota the critical importance of the advocacy on this issue by Commissioners Copps and Adelstein, who have pressed for greater FCC protection of the open nature of the internet at every opportunity and whose non-stop devotion to this cause made this day possible. From August 2005, when Copps and Adelstein forced a then reluctant Chairman Martin to vote for The Internet Policy Statement, to the present day, Copps and Adelstein have been pivotal in raising awareness about the danger of corporate censorship and bringing the FCC to this point.

Nevertheless, I would hope that any fair minded progressive would applaud Kevin Martin for facing down leaders from his own party to issue a decision that makes it very clear that “reasonable network management” is not a fig leaf companies can use to hide blocking and degrading content and then refusing to disclose those practices to users. When the reasonable network management language was first adopted, doubters warned that it could become a loophole that swallowed the rule. But Kevin Martin stepped up to the plate, and with the language of today’s order gave that standard real teeth.

So to summarize, here are the good parts of today’s Order:

1) Firmly establishes the basis for FCC jurisdiction and makes it clear that any member of the public impacted by blocking or degrading of content may file a complaint and expect FCC action.

2) Providers must give clear notice to users if they intend to employ network management practices that target specific applications or otherwise block or degrade access to lawful content or applications;

3) Establishes that a complainant need only establish an initial prima facie case that a provider is blocking or degrading content or applications, at which point the burden shifts to the provider to explain whether it is blocking or degrading and if so whether it is justifiable as reasonable network management.

4) Sets a very high standard for proving that deliberate interference with a subscriber’s use of legal applications or content is a “reasonable network management” practice, and practices that target specific applications raise anticompetitive concerns that trigger a greater burden of proof. A network management practice that is not protocol agnostic must be a “tight fit” between a very explicit and important goal of the network operator and the practice adopted.

5) States clearly that protecting the open and vibrant character of the internet by prohibiting blocking or degrading of applications does not raise First Amendment issues. To the contrary such action furthers First Amendment values. (In my opinion, this finding alone makes this Order a huge win.)

The one flaw in the Order is the FCC’s decision to give Comcast 30 days to disclose its management practices and until the rest of the year to come into compliance. Given that the Order found that there did not appear to be any relationship between Comcast’s targeting bittorrent and managing network congestion, except in the grossest sense that Comcast regarded p2p as a problem and sought to limit its use, I am irritated that Comcast subscribers will spend at least another four months subject to this arbitrary and unreasonable ban on bittorrent and other p2p applications. The FCC, recognizing this, puts in place a number of precautions that will automatically trigger if Comcast tries to avoid compliance. Notably, failure to turn over a compliance plan in 30 days or a failure to stop blocking bittorrent by Dec. 31, 2008 will trigger an automatic injunction and a show cause order requiring a hearing.

I recognize a political necessity when I see one. It was hard enough to get this out the door. Since Comcast already promised to stop blocking and move to a protocol agnostic system by year’s end, they can’t complain that the FCC is asking the impossible or depriving them of billions of dollars in network costs by holding them to their word. But it grates, the more so because the Order is so otherwise excellent.

To conclude, no one thinks this Order solves the overall systemic threat posed to an open internet by a market dominated by a few major players hungry to assert their control over access so they can “own the customer” and “shape the user experience” in a way that “maximizes value to shareholders” and screw the First Amendment or the future of innovation. We don’t walk away from this, or stop fighting for the rules we need. Tomorrow, we go right back to work — starting with defending this Order from the inevitable appeal. But tonight, we can celebrate another critical win that keeps an open internet possible.

Stay tuned . . . .