Cleland's “Common Sense.”

“You keep saying that word. I don’t think it means what you think it means.”
–Inigo Montoya, The Princess Bride

I suppose it’s just overkill for me to pounce on Cleland’s over-the-top (even for him) blog post purporting to make the “common sense case” against our complaint against Comcast and Petition for Declaratory Ruling. After all, Dave Isenberg and others have already taken this on. But (a) it helps to restate the facts and focus on the issues, and (b) it gives me a chance to quote Angels by Within Temptation, and I ABSOLUTELY LOVE THAT SONG (In fact, if y’all haven’t done so, scurry to your favorite place to buy music online and download this and their other stuff. I’ll wait . . . .)

Cleland’s claims can be divided into two: whether Comcast’s behavior was “reasonable network management” and whether the FCC Policy statement is enforceable. I shall address each (and get to the music quote) below . . . .

Just to make sure we are all operating under the same set of assumptions, let us assume we all agree on the following.

1) Comcast, like all cable networks, runs a system based on the DOCSIS protocol developed by CableLabs.

2) As a consequence of the decision to maintain a hybrid-fiber-coax (HFC) network using DOCSIS, Comcast (and other cable operators) have a significant network capacity constraint. Because all users behind a given headend share capacity, significant constant use of bandwidth by one customer or a small group of customers interferes with the use of the system by all other customers.

3) Comcast is apparently addressing this issue by using technology from a company called Sandvine to engage in “traffic management”. Specifically, according to tests conducted by the Associated Press, confirmed by EFF, Comcast is interfering with the ability to upload files via BitTorrent.

I and my fellow extremists filed a complaint at the FCC for violation of the FCC’s “four principles” and for acting in a deceptive manner when challenged on their conduct.

We all in agreement so far? Good. Now lets run with this a bit.

Was Comcast’s Conduct A Violation of the FCC’s Four Principles?

The FCC’s four principles guarantee to users:
1) access lawful content of their choice;
2) run applications and use services of their choice;
3) connect their choice of legal devices that do not harm the network; and,
4) competition among network providers, application and service providers, and content providers.

Now it is pretty straightforward that Comcast’s conduct violates principles (1), (2), and (4). By targeting the use of a specific application, BitTorrent, customers are being denied use of the application of their choice. This, in turn, is preventing them from accessing legal content and getting the level of competition they deserve. I imagine some clever fellows in the comments will echo the Comcast line about merely “delaying,” traffic and not “blocking” it. This, of course, ignores how users actually use stuff and how such “delays” impact user behavior. So while technically true that targeting BitTorrent for “management” in this fashion still allows subscribers to run BitTorrent in some fashion, I really don’t expect the FCC to fall for that one. And, if they do, then I wanna know about it, because I don’t think that your average subscriber wants to parse statements from their ISP the way they deal with a wayward six-year old who insists that “cleaning” his room means picking a Gameboy off the floor and playing with it, because picking up the Gameboy is “cleaning.” (Actually, I think I saw a Brady Bunch like that once, but I don’t think the Brady Bunch defense will really fly here.)

So lets cut to the chase and drop to the exception on which Comcast and the rest of its rational cheerleaders pin their hopes. Footnote 15 of the FCC’s policy statement says: “The principles we adopt are subject to reasonable network management.”

So now we get to the question, is the fun and games with BitTorrent, and potentially other peer-to-peer (p2p) applications “reasonable network management.”

The best statement of the pro-Comcast case for reasonable network management was by George Ou back in November in a post called A Rational Debate On Comcast Traffic Management. To wit: Comcast has a problem with congestion, Comcast is addressing this problem in a way that maximizes benefit to the broadest number of users, and Comcast cannot realistically manage its network capacity in any other way. True to his pledge of reasonableness, Ou is mercifully free of rhetoric and to the point and well worth a reread.

Of course, we who drafted are quite happy to acknowledge that Comcast (and other cable cos) running DOCSIS have built themselves into a corner. As I’ve described at length elsewhere, cable operators made a series of choices in the mid and late 1990s that lock them into a particular architecture today. As a result, they have the technical limitations described by Ou, me, and everyone else who has looked at this in a serious way. Where I disagree with Cleland, Ou and the rest of the Comcast supporters is on what follows as a consequence of these decisions.

As a fan of the band Within Temptation, I cannot help but think of the lyrics to the song “Angels,” particularly this bit (with minor modification):

The world may have failed you
It doesn’t give a reason why
You could have chosen a different network path in life

You smiled when you tore my torrent apart

Building a crappy network should not, in my opinion at least, give a blank check to target applications you don’t like. But I recognize that is a legitimate policy debate. We can argue whether a network operator should get to chose which applications are favored (since the network operator can then offer choices to customers who would suffer in an environment that treats all applications equally and ignores that equal treatment will have wildly disparate impacts) or do we think it simply too dangerous to give network operators that level of discretion in the management of traffic because of the ability to favor their own applications, affiliated content, and prevent the development of other services that might be equally time-sensitive but disfavored (for example, a provider might choose to favor VOIP over p2p applications, but because there are so few providers, that could keep p2p from maturing into a viable technology simply because it will never have the opportunity to attract users or developers). This later decision puts all applications on equal footing, which creates its own dynamic for successful development (or, as I like to say, why do we need to break the data network for VOIP when we have a perfectly good voice network?)

Again, that’s a policy debate we will now have as a consequence of the Petition for Declaratory Ruling. But there is a separate aspect of Comcast’s behavior that should make this a slam dunk on the “unreasonable” side. This isn’t just a network question. It’s what are you allowed to do, and/or tell people you’re doing, when you turn out to have built an utterly inadequate network. Which is what the complain is actually about. Or, to paraphrase Within Temptation:

I lead the FCC to Comcast’s door
no remorse now, no mercy no more
No remorse ’cause I still remember

The smile when you tore my torrent apart
You took my cash
Deceived me right from the start
You promised speeds
I wish they’d turned into real
You broke a promise and made me realize
It was all just a lie

Concerns and accusations about Comcast messing with BitTorrent traffic began to surface in August ’07. Rather than come clean with users, or at least give the old “we can neither confirm nor deny if this is true because our network management is secret,” Comcast lied outright to users and said there was nothing to these accusations. Indeed, even after the AP results, Comcast:

1) Told customers that asked that stories of Comcast messing with BitTorrent were an “internet rumor.”

2) Circulated a talking points memo instructing line staff to lie to customers about messing with BitTorrent.

3) Threatened to fire employees that told the truth about messing with BitTorrent.

And this is where, in my humble opinion at least, any debate about Comcast’s behavior as merely “reasonable network management practice” ends. Because Comcast may have to live with the fact that it built a crappy network, but it damn well should not be able to lie about it, especially when asked point blank by customers whether what they have read in the papers and heard about online is true or not. Otherwise, I am going to start marketing my 1 Gigabit network connection to people and lock them in with a $1000 early termination fee if they are foolish enough to believe me. I ask you, is the right to lie to your customers really “common sense?”

The Legal Arguments

The legal argument is hardly a slam dunk. But, as I noted when we first filed the complaint that’s rather the point. If the “Four Principles” don’t amount to anything more than a wussy suggestion, we ought to know that.

Still, Cleland’s legal arguments suffer some whompin’ big holes.

The Question of FCC Authority: First, Cleland notes that the FCC has defined cable modem access as an “information service.” True. But this does not leave the FCC helpless. Rather, consistent with decisions dating back to the first Computer Inquiries in the early 1970s, the FCC retains “ancillary jurisdiction” over “information services.” Yes, the D.C. Circuit has rather aggressively trimmed back on this in recent years. But the D.C. Circuit affirmed the FCC’s ancillary jurisdiction over information services on appeal of the Computer II proceeding back in Computer and Communications Industry Association v. Federal Communications Commission, 693 F.2D 198, 224 U.S.APP.D.C. 83 (D.C. Cir. 1982), cert. denied, 461 U.S. 938 (1983), so it can hardly retreat from it now. (Caveat, it is the D.C. Circuit and therefore anything is possible if it furthers their activist agenda.) Also, since the FCC definition includes a “telecommunications component” and the information service aspect hinges on the definition of “offer” in the Communications Act, the FCC’s ancillary jurisdiction is about as well established as it can get.

Under some old Supreme Court precedent (notably a case called United States v. Southwestern Cable Co., the FCC can exercise any authority over an ancillary service that it could exercise over the service to which it is ancillary. So, if the FCC chooses, it can act under its telecommunications authority to impose any obligation or rule it could impose on a telecom carrier, including whatever rules it takes to make sure that its rates and practices are “just and reasonable.” That’s rather broad authority.

Next, we get to the question of the standing of a policy statement and the issue of notice. Cleland is correct that a policy statement does not create any legal right per se. But it does set forth how the FCC is going to handle things. Furthermore, in the case of Comcast, the FCC relied on the policy statement as sufficient to protect the public from potential harms when it permitted Comcast and Time Warner to divvy up the bankrupt Adelphia and swap systems back in July 2006. So Comcast has been on notice since then that the FCC will be watching to make sure it complies with the statement.

I note also that the FCC is free to decide something on the basis of adjudication, rather than a rulemaking. So the FCC can decide that Comcast’s actions are a clear violation of the polices adopted in the 2005 Framework for Broadband Regulation by adjudication, just as it decided that it was a violation of Section 201 for the Common Carrier Madison River to refuse to terminate VOIP traffic. That was a case of first impression as well, with the FCC acting to make rule by adjudication rather than a rulemaking. Indeed, it is frequently cited by opponents of net neutrality (including Cleland) as proof that the FCC can act effectively against any real danger without need for further rules or further authority.

Mind you, I agree there is a problem of notice, which is why I and other proponents of rules maintain that the Four Principles are not enough. But the FCC majority opposed to further rulemaking has consistently maintained they are enough and that’s why Congress should stay out of this. If this is not the case, we ought to know so we can get a real law passed.

Congressional Action or Lack Thereof: Cleland places great weight on House of Representive’s rejection of the Markey network neutrality bill back during the COPE fight of ’06. He’s wrong for two reasons.

First, this isn’t about the Markey Net Neutrality Bill. This is under the same standard as the section of COPE that did pass: the FCC’s four principles. Cleland is entitled to his arguments on why this doesn’t violate the principles, but the Markey Bill is a red herring.

Second, as all practitioners know, failure of Congressional action has no authority and is a terrible guide to Congressional intent. For example, The House may have rejected the Markey Bill because the believed the Four Principles were sufficient, not because they wanted to give broadband access providers unfettered freedom to handle the delivery of packets without regard to possible problems. Indeed, in the Senate, the original Stevens Bill would have eliminated even this authority from the FCC, but that version was modified before the Committee vote to parallel the House version enshrining the four principles and limiting it to just adjudications after the fact (like this one). That version passed the Committee, but never came to a vote.

Does the failure of Congress to give the FCC even that much authority show that it violates the “will of Congress” to treat the Four Principles as binding? No. That’s straight out of Southwestern Cable, where Congress’ failure to pass legislation giving the FCC explicit authority to regulate cable did not defeat the FCC’s ancillary jurisidction. Lets face it, who can say why Congress failed to act? Maybe they liked the Four Principles and didn’t like the limitation on prophylactic regulation. Maybe they didn’t like something else totally unrelated to this question. It’s not even like Congress passed a law and stripped a provision out before passing it, so there is some legislative history here that could give us a sense of Congressional intent. All we have is Congress voted dwn an amendment for prophylactic rules and failed to pass a bill limiting the FCC to after the fact adjudications like our complaint. Hardly the definitive rejection of FCC authority Cleland appears to believe.

Finally, I need to take issue with Clelands rather simplistic (and therefore deceptive) effort to frame the interaction of FCC past precedent and policy statement. Cleland writes:

law trumps FCC rules, FCC rules trump FCC policy statements. The petitioners have a fantasy that FCC policy statements overrule all prior FCC legal precedent or the multitude of communications laws affected by their sweeping attempt to mandate net neutrality above all other laws.

Which looks mighty impressive but really doesn’t mean jack. FCC regulations implement the laws Congress has passed, such as the Communications Act of 1934 as amended. Policy statements explain how agencies will behave in certain circumstances (Cleland, as most folks do, ignores the role of adjudication in agency rulemaking, but that is a side point). I’m not aware of any act of Congress which has addressed this issue (and the failure to act, as discussed above, makes no law). Cleland’s failure to cite to any “prior precedent” or “multitude of communications laws” makes it rather difficult to rebut him on a point by point basis. Cleland has a colorable argument that because the policy statement created no new obligations or authority of its own force, the FCC cannot sanction Comcast because no rule was violated. But to allege that the complaint would “overrule all prior FCC legal precedent” or impinge upon a “multitude of communications laws” is, to use Cleland’s own word, a fantasy.

To conclude, we’ll see what happens at the FCC. There is a reason we submitted both a complaint and a Petition for Declaratory Ruling. While I do not pretend the conclusion on the complaint is a “slam dunk,” I think it will do its job from my perspective. We should know, when the process is over, whether the FCC has authority to protect us from possible abuses by broadband providers, or not. We should know, when the process is over, whether the FCC will permit broadband operators to lie to their customers, or not. These are things, I would hope, that we should wish to have clearly known and settled if we are going to get our national broadband policy right.

After all, that’s just common sense.

Stay tuned . . . .

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