Well, that was fun. I reprint my testimony as prepared, not as delivered. I also cut a very insider joke. I’d planned to start:
“Mr. Chairman, I understand that this is the open Commission meeting, so it is perhaps no surprise that we are running an hour late. Also, as I have not had time to complete this testimony, I ask for editorial privileges.”
But no one off the podium was likely to get it.
[Editorial note from John (to help search engines and any random Wetmachine readers who stumble upon this): This post concerns Harold Feld’s testimony at today’s FCC hearing at Stanford University.]
Stay tuned . . . .
Mr. Chairman, Commissioners, thank you very much for inviting me to testify today, and hank you very much for holding this hearing. For one thing, it appears that these hearings have a salutary effect on resolving the issues raised by the complaint filed by myself and Marvin Ammori of Free Press with regard to Comcast’s choice of network management techniques and lack of disclosure (I might even say denial) of same to its customers and the public at large. Just before the February hearing in Boston, Comcast amended its customer service agreement to make clear it reserved the right to interfere with user traffic at any time without warning. Just before this hearing, Comcast announced its agreement with Pando Networks to create a P2P “Bill of Rights” for internet users and developers. I calculate that at this rate, the Commission will only need to have another thirty or so hearings on this topic before Comcast takes real action.
I have personally been involved in this debate about the FCC’s proper role in broadband policy since 1999. At that time, of course, the only one of you at the commission was Chairman Martin in his capacity as an advisor to Commissioner Furchgott-Roth. So you may not recall how back then the FCC was considering whether to require cable operators to allow resale of their broadband capacity at wholesale rates – what we used to call “open access” and what the FCC at that time required of telephone. But I still remember when AT&T Broadband (later acquired by Comcast) announced a deal with Earthlink to allow Earthlink to resell their broadband service. Over our protests, the FCC breathed a sigh of relief that the “market was working” and the need for FCC action averted.
Well, we all know what happened. As soon as the Commission made clear it had switched direction and no longer cared about open access, the deals stopped. Worse, we have moved from debating whether to allow competitors to have access bottleneck facilities, to whether subscribers will enjoy the freedom that the cable and DSL duopoly actively advertise but reserve the right not to provide. When this debate started almost ten years ago, the arguments that ISPs would block or degrade applications were dismissed as technologically impossible and we were accused of paranoia and fear mongering. Now, the worst case scenarios we predicted are proudly defended as “reasonable network management.” Worse, whereas in 1999 companies actually had to take action to appease the watchful eye of the Commission, it is enough now for Comcast to enter agreements to talk about doing something someday to begin a chorus of “Mission Accomplished. These Aren’t the Droids We’re Looking For. Move Along.”
But enough nostalgia. Let me talk about the pending legal pleadings before the Commission, on which it must legally act, and how they impact user access to applications and content. As Dr. Ford observed when we both testified over a year ago at the FCC, I am not an economist. He took me to task for bringing my First Amendment arguments into a forum on competition. Fair enough. But here I stand on unimpeachable ground.
As the Supreme Court observed, the public interest standard under which you operate “of necessity” requires consideration of the First Amendment, particularly of the public’s “paramount” right to access diverse sources of news and other content. The Supreme Court has also said that the internet is a medium “as diverse as human thought,” and that when the government acts to protect diversity of voices it fulfills “a government interest, of the highest order.” Those who recognize that quote from the Turner decision will recognize that it applied to the cable industry for regulations far more intrusive and far less effective in promoting diversity than the modest action requested by MAP, Free Press, Vuze, and millions of others. I should add that as a blogger who occasionally says some rather blunt things about Comcast, AT&T, and the other carriers, this is no theoretical issue for me. I am extremely uncomfortable with the idea that my ability to speak my mind to whoever wants to hear is a matter of corporate grace rather than constitutional right, and I suspect other Americans will feel equally uncomfortable if the FCC abandons its responsibilities and fails to act.
Your authority – indeed, your responsibility – under the First Amendment is therefore clear. The practices defended by Comcast and others as “reasonable network management” will result in the homogenization of both content and services in exactly the same way it did on the phone network, radio networks, television, cable, and now the wireless broadband platform. If Comcast and other carriers may pick and choose which applications it will favor and which it will degrade, then the age of rapid innovation without permission and vibrant user generated content that has triggered a rebirth of civic engagement on a level not seen since the “idiot box” replaced the social hall as the place where people discussed the critical issues of the day. If you are to fulfill you obligations under the First Amendment and under the Communications Act, you must not allow this to happen.
Comcast’s actions after the complaint, to the extent they have actually done anything other than agree to talk, can neither deprive the Commission of jurisdiction nor relieve the Commission of its responsibility to address the complaint. For example, after the Janet Jackson “wardrobe malfunction,” the networks at once engaged in all manner of damage control far more comprehensive than that undertaken by Comcast. But Clear Channel’s firing “Bubba the Love Sponge” or the promise of the networks to broadcast live events with a delay to “bleep” future fleeting expletives did not in any way effect the Commission’s jurisdiction over the indecency complaints that flowed from those actions.
Although we have provided detailed analysis of the Commission’s legal authority in our filings at the Commission, and while I and other lawyers here could go on about this for hours, I will touch on this matter only briefly. First, with regard to statutory authority, the Supreme Court has announced that Congress granted the FCC “broad” ancillary power over any communication by wire and wireless. The D.C. Circuit affirmed the FCC’s ancillary jurisdiction over information services as early as 1981. The Supreme Court in Brand X similarly affirmed this authority. With regard to the notice issues, the Commission included questions on what user protection regulations it should adopt under Title I in every one of the proceedings that culminated in the Commission’s final declaratory ruling on the appropriate regulatory treatment of wireline services in 2005. All parties had more than adequate notice the Commission could adopt rules and regulations – up to and including adjudication on a case by case basis. If Comcast or other parties find that adjudication provides too much uncertainty, let them join us in establishing explicit rules which, as we argued in this and every other proceeding, would benefit all stakeholders. So if the Commission feels it is better to act by rulemaking, it has both the Petition for Declaratory Ruling or – if you really want to do a thorough job – the Petition for formal rulemaking. And, as Professor Lessig observed, you can use your statutory and regulatory authority to punish companies that act with lack of candor—including incomplete disclosures or failure to disclose relevant information during an ongoing investigation.
But whether you prefer the clarity of bright line rules or the precision of adjudiction, you have both the authority to act and the responsibility to act on three separate pleadings before you. Comcast cannot evade the consequences of its action by a regulatory version of the old shell game – where it is somehow always the wrong proceeding and always either too soon or too late to address Comcast’s behavior. But there is something more important here, as my opening trip down memory lane will perhaps illustrate – that failure to take action can have unanticipated consequences as devastating or worse than taking action too soon, or inappropriately. Opponents of net neutrality are fond of quoting the phrase of the Hypocratic Oath “do no harm.” But this injunction does not prevent physicians from administering vaccinations rather than waiting for a “tetnus problem” or prevents them from removing a tumor before it becomes malignant and spreads to vital organs. The evidence of harm is before you in our filings, with new examples constantly emerging – sometimes retreating in the glare of the spotlight, but other times festering to the detriment of us all.. In 1999, we could have saved competition. Now, we are struggling to save free speech and innovation at the edge. As we are fond of saying at the Passover seder, daiynu – it is enough.
Before I conclude, allow me to briefly address the questions raised by Commissioners Tate and McDowell in their opening statement. As a father of a nine year old, I also worry about access to inappropriate material. But we must distinguish between this very important social concern and what Comcast actually did and is doing with regard to Bittorent. MAP recently hired a consultant to test whether Comcast’s practices of network management had any impact on access to adult oriented material. Our tester found that free porn and pay porn remained plentiful and abundant, from websites whose names I cannot read in this public forum. Ironically, Comcast would address its bandwidth problem and do more to reduce access to inappropriate conduct by taking the 2% of its channel capacity devoted to pay-per-view adult programming and dedicating those channels to broadband capacity.
I want to stress that I absolutely support Comcast’s right to offer this content, and I do not want for one minute to suggest that Comcast should try to police this content. But the suggestions by some that the Commission deciding against Comcast in our complaint would somehow increase the adult-oriented content available to Comcast subscribers is false to fact. Comcast’s network management in this case has nothing to do with indecent content, and we must not allow our legitimate concern about children accessing inappropriate material to be manipulated.
On the other hand, and also addressing Commissioner McDowell’s questions regarding whether this impacts downloads, our tester made over 300 hundred attempts over the course of two weeks at randomized times to download the King James Bible via bittorrent from torrentbox.com. Of 300 attempts, two-hundred and twenty-six attempts failed, a failure rate of 75.33% — consistent, I note, with Robert Topolski’s recent experimental data.
I also have to say that, having been involved in the “internet governance” debate since its beginning, having served on the ICANN Names Council, and various other advisory boards and so forth, I find Commissioner McDowell’s rosy description . . . incomplete. For example, will there be a government advisory council for this private P2P organization? How about a non-commericial users constituency? I was able to actually participate in ICANN, even sit on one of its governing bodies. How will Comcast and the other cable operators foster such end user participation? A business constituency for folks like Jason? I can subscribe to the IETF mailing list. I can show up at any meeting, and anyone can initiate an RFC. How do I initiate an RFC with the p2p working group? How do I make my comments known for this bill of rights? I know I would like to know, and I imagine that everyone with an interest in the evolution of the internet — meaning, of course, everyone — would like to know as well.
To conclude, Ecclesiatses says: There is a time to speak, and a time to keep silent. With respect, the time has come for the FCC to speak. The American people, whose right to free speech you are obligated to protect, deserve no less.