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How the FCC Comcast Decision Limits Net Neutrality
From: David Farber <dave () farber net>
Date: Fri, 22 Aug 2008 09:44:46 -0400

[NETCompetition.org is an e-forum to promote a rigorous debate on the
merits of net neutrality legislation. It is funded by a wide range of
broadband telecom, cable and wireless companies who believe that the
best way to guard a free and open Internet is free and open
competition, not more government control of the Internet. Please see
www.netcompetition.org  djf]

Read it on Precursorblog.com

How the FCC Comcast Decision Limits Net Neutrality
Contrary to conventional wisdom, the FCC's order on Comcast's network
management practices, reined in the net neutrality movement much more
than it advanced their agenda.

        * The old adage is true here, be careful what you ask for --
FreePress/Public Knowledge.
At its rawest level, the chest-beating petitioners got the FCC to
reiterate what the FCC has long said it would do, and also order
Comcast to do what Comcast already publicly committed to do.

        * When the dust settles and the rhetoric cools, the petitioners
will
better understand the old adage: be careful what you ask for.
        * In this instance, they hoped to advance their agenda for
sweeping
net neutrality legislation and regulation, and what they ended up with
was the expert agency taking much of the wind out of their sails.
How does the FCC Comcast decision limit Net Neutrality?

First, the petition proved the existing system/process works --
seriously undermining any legitimate rationale for new net neutrality
legislation or regulation. (Unfortunately, for the neutralists, the
public takeaway from the resolution of this petition was not that
legislation is needed, but that there is a government process in place
more than able to handle consumers' concerns.)

        * Legislation is the public policy instrument of last resort,
appropriate only when there no existing government means to deal with
a perceived problem.
        * Regulation isn't appropriate because the purported problem
here is
miniscule.
                * In the three years since the FCC established its net
neutrality
principles and ruled broadband an information service, the FCC has now
found a total of one, and only one, problem warranting its involvement.
                        * That's one incident in a nation with ~200
million Internet users,
~2,000 ISPs, atrillion web pages of content, and literally
quadrillions of Internet communications over that period.
                * Regulation is not warranted because an enforcement
process can work.
                        * Regulation of all ISPs, all Internet traffic,
and all Internet
consumers would be unwarranted overkill, which would create vastly
more real problems than the potential ones it would assume to address.
Second, the petition powerfully legitimized the need for network
management.

        * Before this petition, the call for net neutrality legislation
was
absolutist: any "discrimination" was bad; there should only be one
Internet tier; and "all bits are created equal."
        * The petition prompted a wide public policy discussion and a
wider
public awareness of the need for reasonable network management to
manage congestion, deliver quality of service, combat malware and
illegal activity, etc.
        * Where before the petition they argued that no discrimination
should
be tolerated, now FCC Commissioner Copps, the most ardent FCC
supporter of net neutrality, has dramatically shrunk the playing field
by concluding publicly in this decision that:
                * "There are network management practices that most
experts agree
are reasonable and that are important to the development of new
technologies and Internet services."
                * "I also emphasize that discrimination is not per se
wrong. It is
unreasonable discrimination that is wrong."...
                * "So the trick is to find the fine line between
reasonable
management techniques that allow the Net to flourish and unreasonable
practices that distort or deny its potential."
        * This is a remarkable shift in the playing field of the debate
over
net neutrality policy.
                * Unable to sustain radical hardline non-discrimination
absolutism
in the face of facts and a real governmental process, the debate has
shifted to what is reasonable -- and on that point obviously
reasonable people can disagree.
Third, the petition led to an FCC rejection of the need or urgency for
preemptive action in recognition that this issue warrants a fact-
specific process.

        * Neutralists have long breathlessly implored to everyone that
would
listen that the Internet discrimination threat was so imminent and
ominous that it required broad preemptive action and prophylactic rules.
        * However, the FCC concluded the opposite: "...not only is the
Internet new and dynamic, but Internet access networks are complex and
variegated. We thus think it is possible that the network management
practices of the various providers of broadband access services are
"so specialized and varying in nature as to be impossible to capture
within the boundaries of a general rule.""
                * This new official FCC conclusion shadows the reality
that
proponents still can't define practically what net neutrality is --
making it even harder to propose serious legislation.
Fourth, the petition resulted in the FCC dramatically limiting the
traffic/content that net neutrality principles applied to.

        * While the FCC's 2005 net neutrality policy statement implied
that
the principles did not apply to illegal content or harmful devices,
this petition prompted the FCC to be much more specific.
                * The Chairman explained that net neutrality does not
apply to a
wide swath of existing Internet content and applications.
                        * "The Commission's network principles only
recognize and protect
user's access to legal content. The sharing of illegal content, such
as child pornography or content that does not have the appropriate
copyright, is not protected by our principles. Similarly, applications
that are intended to harm the network are not protected."
                * Given that: over half of Internet traffic is P2P and
~90% of P2P
traffic is illegal piracy per the US PTO; given that 40% of email is
spam per the Spam Filter Review; and given that 28% of pay per clicks
of the large search engines are fraudulent per Click Forensics; the
majority of Internet traffic is not protected by the FCC's principles
and can be legally blocked.
        * Concerning the other half of Internet traffic, the FCC
Chairman's
explanation indicates that network management is likely to be
reasonable if "an operator is willing to disclose fully and exactly
what they are doing" and they do not block applications arbitrarily:
i.e. "the network management technique arbitrarily blocks or degrades
a particular application."
        * In short, the essence of this point is that the before the
petition, neutralists had implied that net neutrality was an Internet-
wide absolute -- what we now know from the FCC is that net neutrality
does not apply to over half of the Internet's traffic at all, and the
other half of traffic potentially could face legal and reasonable
blocking or degrading of some type -- if the network management
practice is fully disclosed and not arbitrary.
Finally, the petition prompted the FCC to suggest new ways that the
ISPs could legally manage congestion and not run afoul with the FCC's
net neutrality principles -- suggestions that the petitioners strongly
oppose -- oops! Be careful what you ask for...

        * From the order para 49: "Comcast has several available options
it
could use to manage network traffic without discriminating as it does.
Comcast could cap the average users' capacity and then charge the most
aggressive users overage fees. Or Comcast could throttle back the
connection speeds of high-capacity users (rather than any user who
relies on peer-to-peer technology, no matter how infrequently)."
        * By explicitly and proactively explaining that there are other
ways
to manage traffic congestion, the FCC is practically giving a nod of
approval for these types of congestion management techniques.
                * This is clearly not an outcome the petitioners
expected or wanted
to come out of this order.
Bottom line: To cut to the quick, the petitioners' ham handed tactic
in bringing this petition to the FCC backfired badly despite their
boastful self congratulations to the contrary. (See Free Press/
SaveTheInternet and Professor Lessig's Tarzan-like screams that they
are the kings of the net neutrality jungle.)

        * What we now know is that:
                * The system works and that there is no need for
legislation or
regulation;
                * The need for network management has been powerfully
legitimized;
                * The FCC rejected the need for preemptive rules;
                * The FCC dramatically limited the amount of Internet
traffic
content the FCC net neutrality principles apply to; and
                * The FCC suggested alternative ways to legally manage
traffic
neutrally, usage caps, overage fees, and high-user throttling.
Now we understand why Public Knowlege and FCC Commissioner Copps are
calling for the addition of a "Fifth FCC net neutrality principle"
explicitly prohibiting discrimination.

        * Isn't that what this order was supposedly all about? --
addressing
unreasonable Internet discrimination?
Seems like Public Knowledge and FCC Commissioner Copps get the joke,
and realize that this petition did not yield the sweeping endorsement
of the proactive Internet regulation that they had hoped for.

        * As I said at the beginning, the old adage is true, be careful
what
you ask for... it could backfire badly like it did in this instance...
To read more analysis on Net Neutrality visit my blog and Web site.

Thanks,



Scott Cleland
Chairman, NetCompetition.org
Founder & President, Precursor, LLC






Copyright (c)2008 NETCompetition.org | Disclaimer and Privacy Policy

NETCompetition.org is an e-forum to promote a rigorous debate on the
merits of net neutrality legislation. It is funded by a wide range of
broadband telecom, cable and wireless companies who believe that the
best way to guard a free and open Internet is free and open
competition, not more government control of the Internet. Please see
www.netcompetition.org
.

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