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Lessig on FCC Comcast decision
From: David Farber <dave () farber net>
Date: Thu, 21 Aug 2008 20:24:42 -0400

Begin forwarded message:

From: "David P. Reed" <dpreed () reed com>
Date: August 21, 2008 7:48:12 PM EDT
To: David Farber <dave () farber net>
Subject: More on FCC Comcast decision

Dave - Larry Lessig also posted a very interesting piece on the FCC Comcast decision.
> http://lessig.org/blog/2FCC.pdf


Ms. Marlene H. Dortch
Federal Communications Commission
445 12th Street SW
Washington DC 20554

Re: Broadband Industry Practices, WC Docket No. 07-52

Dear Ms. Dortch:

I am writing to commend the Commission on its order released today
regarding Comcast. In all of my experience reviewing government
decisions affecting the Internet, I have read none that are more
subtle and sophisticated in their understanding of the Internet, and
few that are as important for setting the conditions under which
innovation and competition on the Internet will flourish.

As the Order makes clear, the Commission has clearly recognized the
importance of the Internet as a platform for technological growth and
innovation. It is also an extraordinarily important platform for free
speech. Innovation and technological growth are essential components
to economic prosperity. Free speech is the single most important
element in a democracy.

Platforms depend upon common and public standards. The next Larry Page
or Sergey Brin need to know that the "Internet" they build the next
Google for is actually the "Internet" the next Google will run upon.
The open standards process that the IETF has developed provide this
assurance. By clearly articulating the rules by which data will be
managed on the Internet, innovators can build applications and deploy
content that rely upon those rules. There’s no need for a negotiation
between innovators in their garage and the largest network providers
for those innovators to develop the next "killer app." Like the
electricity grid, innovators know that they can simply plug their
application into the Internet and -- so long as the providers of
access to that platform respect the platforms standards — the
innovation will run. This was the purpose of the Internet’s
"end-to-end design," as network architects Jerome Salzer, David Clark
and David Reed first described it: To enable innovation at the edge of
the network without the innovators concerning themselves about
complexity at the core. Comcast’s behavior, at least as detailed in
the very careful and comprehensive order the Commission released
today, poisons this environment for economic growth and innovation in
at least three ways:

First, as the Order notes, by implementing non-standard network
management technologies, Comcast weakens the value of the platform for
all. If Comcast’s behavior became common among broadband service
providers, innovators developing new applications for the Internet
would be required to tailor those applications to the specific local
rules of the major carriers. That tailoring would increase costs and
uncertainty, thereby reducing the return to Internet-based innovation.

Second, and again, as the Order notes, by keeping these modifications
to the basic Internet protocol secret, Comcast’s behavior only
increases the cost that their nonstandard implementation imposes upon
Internet innovation. Rather than simply reading a technical document
that explains the local deviations from standard practices on
Comcast’s network, innovators who want to assure that their
innovations actually run on the Comcast platform would be forced to
run expensive tests of the applications or services on the Comcast
network, essentially bearing the costs of reverse engineering a
service that advertised itself as a standard Internet connection.
Again, imagine the burden to GE if local electricity grids varied the
voltage of their local electricity networks -- sometimes running at
120v, sometimes at 220v. And then imagine the burden if those same
grids varied the voltage secretly, without any notice to GE, or other
innovators. The costs to innovation and economic growth obvious in
this example are exactly the costs Comcast creates by its behavior.

Third, as the Order notes, by keeping these modifications secret,
Comcast’s behavior imposes a particularly harsh burden on new
innovators. Anyone trying out a new application from a new company or
developer begins with some skepticism about the quality of that
application or innovation. Failures in the execution of that new
application will be attributed by the user to the developer, not to
the broadband service. Most users have no clue about the capacity of
the broadband provider to interfere with the functioning of an
application. Most would therefore assume that any failure is a failure
in the application. Comcast’s behavior would therefore particularly
burden these start-up innovators.

These costs, of course, are obviously relevant to the Commission’s
concern of assuring the Internet remains a platform for growth and
innovation. But the Order nicely illustrates how these costs are also
linked to anticompetitive concerns. As the D.C. Circuit indicated in
the Microsoft case, regulators have a particularly strong reason to
police the behavior of a platform provider when that behavior is aimed
at protecting the platform provider from new competition. This was
also the Commission’s concern in the Madison River Matter, where a DSL
provider was alleged to have blocked VOIP service, thereby protecting
the telecom company’s profits from traditional telephone markets.

In this case, the Commission has identified a legitimate concern that
Comcast’s behavior is directed towards interfering with a developing
market of alternative video service. To the extent consumers find a
reliable means for collecting and supplying video content to others,
through, for example, applications such as Miro, these alternatives
will provide competition to traditional, cable-television based models
for delivering video content. The Commission in particular, and the
U.S. government more generally, has an obvious interest in encouraging
precisely this type of competition. For it is precisely this sort of
competition that will continue to drive the costs of communication
down, and widen the opportunities for speakers -- from documentary
filmmakers, to local priests sharing sermons -- to make their speech
available to others.

The need for the Commission to play this role as an ultimate check on
private behavior that might pollute the environment for innovation is
particularly acute on a free, public network such as the Internet.
Obviously, there are plenty of private innovation platforms that don’t
require direct government oversight to protect the platform.
Microsoft’s Windows operating system is a ready example. If Dell
started tinkering with Windows, disabling or modifying certain
operating system functions, Microsoft would have an obvious interest
in stopping Dell. Private law would give Microsoft adequate tools to
protect its platform from the intermeddling by Dell. Through
trademark, copyright, and patent law, Microsoft could use government
power to force Dell to either comply with the Windows standards, or
forbid Dell from distributing Windows on its PCs. No doubt that would
be a kind of government regulation, but exercised by a private actor
to advance its own private interests.

There is no "owner" of the Internet, however, who can likewise invoke
private law to protect the platform of the Internet from the same sort
of interference. The IETF doesn’t own a trademark on "the Internet."
The protocols and standards that it, and other equivalent bodies have
deployed, don’t carry with them the power to enforce particular
implementations. Indeed, an important slice of that innovation
environment, free software (governed, for example, by the Free
Software Foundation’s GPL) explicitly grants to everyone the right to
modify the code however they want, so long as they abide by the
requirement to make that modification available to others.

Comcast didn’t invent the Internet. Indeed, it, and most other cable
companies, were relatively slow to recognize the important value the
Internet would provide both to the public and to companies providing
Internet service. Instead, Comcast now seeks to benefit from the
extraordinary economy that has developed around the Internet. It gets
to enjoy that benefit "freely," meaning without paying anyone a
licensing fee, or without securing permission from anyone to deploy
resources that link into this extraordinary network. That it can is of
course a great benefit, not just to Comcast, but to the Nation. The
free resource of the Internet has produced enormous commercial and
economic value.

But if Comcast is to benefit from the Internet, it is perfectly
reasonable that it be required to do so in a manner that doesn’t
pollute the value of the Internet for everyone else. Yet that is what
Comcast has done here. By secretly adding a layer of secret sauce into
the Internet that interferes with legitimate applications and network
services, Comcast has injured the value of the Internet to other
innovators. By denying that it has done this, it has added insult to
that injury. The Commission has done us all a great service by stating
clearly that it will assure that the platform for innovation that the
Internet is will not be compromised by such behavior. It was also
important that the Commission clearly addressed a common slogan that
Comcast had deployed in this matter that has no relation to the actual
history of the Internet -- namely, that the Internet was born free of
regulation. It might be acceptable in a political campaign to continue
that obvious canard. But in the context of this Commission, which was
the enforcer of the very rules that created the opportunity for the
narrowband Internet to take-off, it is extraordinary that a party
would suggest that the Internet was a regulation-free zone. The
Internet was made possible by a mix of minimal platform regulation.
Even the presumptive Republican nominee for President enumerates a
list of context in which "regulation is warranted." And while there
will always be argument about the proper mix, and while any sensible
policy-maker would want to keep that regulation at an absolute
minimum, the suggestion that any sensible policy-maker, including
Congress, has ever suggested that the Internet "not be regulated" is
either ignorance or deception.

Finally, let me note one other feature of this proceeding that has
particularly troubled me. These are complicated questions. There’s no
doubt that networks will have to manage traffic. There’s no doubt that
certain types of content and applications will have to be regulated.
Child pornography is the obvious case. But illegal activity extends
far beyond that paradigmatic case.

In developing the standards for effecting both (1) the public interest
in an open and vibrant Internet, as well as the public interest in
controlling illegal content and activity, and (2) the private interest
that companies such as Comcast can profit from Internet service, so
that many companies such as Comcast choose to provide Internet
service, the Commission has rightly chosen to move carefully through
adjudication, against the background of clear standards articulated
first by Chairman Powell, and then adopted by the Commission under
Chairman Martin’s leadership. That process will require at a minimum
the good faith cooperation of anyone providing significant Internet

The most striking feature of the current proceeding to me, at least,
was the character of the interaction between Comcast and the FCC about
these matters. Of course anyone in dealing with the government has a
right to defend his own interests. But no one has a right to mislead.
That the Commission has identified statements made by Comcast that
were, at a minimum, not true, raises significant questions about
Comcast’s behavior. Whether or not the Commission has the authority it
claims in this particular case (and I am confident that it does), no
company has the right to mislead the Commission in its proceedings.

Obviously, there are not sufficient facts yet known to know why
statements that were not true were nonetheless made by Comcast. It
could well be that Comcast’s management didn’t fully understand what
its own technicians were doing. But when a company provides access to
millions of Americans to the most important infrastructure in the
digital age, at the very minimum, that company has an ethical
obligation to deal truthfully with the regulator charged primarily
with protecting that infrastructure from harmful behavior.

The Commission’s order today has done a great service to our Nation.
It will set a context that makes clear that those who wish to profit
from the Internet do so without harming the Internet. And it will
advance the objective of securing this infrastructure for innovation
with the minimum regulatory oversight possible. On behalf of many, I
am sure, let me express our thanks.


Lawrence Lessig

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