Put Up Or Shut Up At the FCC on Net Neutrality “Principles”

When the FCC deregulated broadband by declaring it an “information service,” it also adopted four principles that purported to give broadband subscribers a right to “access lawful content of their choice,” “run applications and services of their choice,” “connect their choice of legal devices that do not harm the network,” and enjoy “competition among network providers, application and service providers.” All subject to “reasonable network management,” of course. So when a bunch of us in 2006 pressed Congress to pass a network neutrality law, a lot of folks claimed we didn’t need one because the FCC already had the authority to deal with any problems that might arise. And, when questioned on this very subject at his confirmation hearing for a second term, FCC Chairman Martin said the FCC had ample authority to deal with any violations of the four principles that might arise.

Thanks to Comcast and their decision to “manage” their network load by degrading BitTorrent,it’s put up or shut up time at the FCC. My employer, Media Access Project, along with Free Press and Public Knowledge, just filed a formal complaint against Comcast and a general Petition for Declaratory Ruling asking that the FCC hold that deliberately messing with a customer’s application while refusing to admit doing it when asked pint blank violates the FCC’s “four principles” and does not constitute a “reasonable network management practice.” This will also press the FCC to find out exactly what the heck Comcast is actually doing (since some folk remain uncertain). Given that Comcast initially denied the very idea as “internet gossip,”, instructed their line staff to lie to customers about it, and are still maintaining that nothing of interest is going on, it looks like the only way will actually find out what the heck is going on and why is to have the FCC pry it out of them.

Hey, maybe they are telling the truth. But the FCC is in a much better position to know whether Comcast is deliberately lying to its customers and, if so, why. Because while my friend and opposite number Jim Harper at Technology Liberation Front may be content to see if the market punishes Comcast for its “lack of transparency”, I see a lot of bad consequences in letting Comcast throttle traffic as a network management tool and then lie (or, at best, mislead) about it when asked about it point-blank by their customers.

At any rate, whether folks think we should regulate this kind of behavior or not (and I recognize that a number of smart folks not employed by cable operators feel we shouldn’t regulate this even if everything bad said about Comcast is true), we deserve to know whether the FCC has the authority to regulate this behavior, and the willingness to do so on an enforcement basis. Because if the cable and telco companies that swore up and down that we didn’t need new rules now come in and say the FCC has no authority to take complaints about their behavior after the fact or no authority to order any remedies, then we should know that. And if the FCC is going to leave us high and dry when broadband providers start degrading applications, then we should know that. Because while some folks may think that lying to your customers is an acceptable network management technique, or even an acceptable technique for managing elected members of Congress, I think most Americans would disagree. And I certainly want to know that by November ’08.

Stay tuned . . . .


  1. Wow.

    Now that is serious “put up or shut up” stuff.

    Cool. And thank you!

  2. if wifi mesh networks- adhoc hardware+power solutions- are the future so be it. But you are right, we should know if we should expect a right of communication integrity, without which the medium slowly erodes to uselessness.

  3. barry payne_economist


    by Barry Payne, Economist, Ph.D. ex-FCC staff bbpayne@earthlink.net

    Controlling BitTorrent to “improve” network flow?

    The way electric utilities interrupt customers on an “interruptible rate” to prevent an outage to customers on the “firm rate”?

    If electric utilities did what Comcast is doing, they’d be cutting off or delaying the flow of electricity to FIRM customers BY TYPE OF USE, i.e., lighting, electric motors, computers and hair dryers, not by the NEUTRAL use of kilowatts and kilowatt-hours the way they do now, independent of how the electricity is used.

    Comcast is controlling network flow through SELECTIVE, IDENTIFIABLE CONTENT. If Comcast were NEUTRALLY controlling PEAK NETWORK USE to avoid outages or slowdowns to other customers, it would be controlling KILO-BYTES AND KILO-BYTE SECONDS, not SPECIFIC CONTENT.

    For example, the use of BitTorrent during peak periods could equal 10,000 emails, 3,000 web page connections or 4 digital movies in terms of IDENTICAL peak use imposed on the network. Each source could be equally (neutrally) responsible for the peak congestion.

    Picking and choosing among those sources for delay or cutoff by Comcast based on CONTENT is non-neutral discrimination. For example, a traffic jam could be alleviated by preventing entry of say 200 buses, 200 trucks or 600 cars, where any of the three take up the same amount of road space to cause the same amount of congestion.

    Comcast should not be making these choices among internet use content any more than a traffic cop should be deciding whether one bus or one truck causes more congestion than three cars – if there was a “congestion fee”, the bus and the truck should be assessed three times that of a car as a “neutral” control of traffic.

    Instead, Comcast and other facility-based broadband providers are posturing to force customers into a newly created “fast-lane everything” package with much higher prices, perhaps double or triple the price for what customers get now. Degraded quality at lower speeds would be used to force customers into the high-price package.

    Achieving such market power outcomes requires that the current conditions of net neutrality, in place by default, be undermined and abandoned to whatever degree necessary. That’s why this case is important – it will tend to set a standard for net neutrality going forward absent any hard laws or FCC rules on the issue.

    Comcast should be required to show its peak network capacity cannot be met. It should be forced to cease overselling network capacity along with vague language designed to allow it to control delays, cutoffs, pricing and content at will.

    If Comcast threatens that it will not maintain maintenance or buildout of the network or to impose discriminatory pricing unless net neutrality is abandoned, its monopoly franchises should be suspended and considered for competitive buyout and takeover by a new provider under conditions of net neutrality.

    If Comcast insists that a “fast-lane” is necessary to alleviate congestion, it should be allowed to provide one under the condition that existing broadband capacity and access remains undisturbed and overhauled with clear pricing and capacity maximums available to end users.

  4. Mr. Payne, could you put your comment on your own blog, please?

    OK, I’m guilty of doing the same, but my analysis is a lot less reasoned, and more off-the-cuff.

    @jbug: the future is what we make it. If Terminator has taught me anything, it’s that the future is not set in stone. We have to move the debate. We have to set terms of the debate, meaning we cannot get caught up in the big media rhetoric. Keep the focus on the public good. “What have you done for me, lately?” should be the mantra. Profitability? That’s your problem. If you can’t see a way to profit in this market, you shouldn’t be CEO.

    Personally, I think community mesh is the future, and folks like sascha meinrath and prometheus radio are pointing to it. We can no longer be the sheeple. We have to lead.

    That’s why Harold is such an inspiration. He’s up on the Hill kicking butt. We’ll be in the trenches connecting the 2-strand together, cranking up the radios, etc.

    This is going to be so much fun…

  5. Barry Payne, thank you. This analogy is most useful and pertinent.

    Shun, thanks for the kind words.

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