Friday, March 19, 2010

FCC vs Comcast & reclassifying broadband

It's timely to revisit Comcast's dispute with the FCC over traffic management, in the light of the publication of the US National Broadband Plan this week, as well as the FCC's intention to reclassify broadband so as to allow (if I've understood correctly) Universal Service Fund (USF) monies to be used to support further deployment. Such a reclassification would also enable regulation similar that currently employed over traditional voice services, which would entail a much greater level of scrutiny than that currently afforded to broadband services.

Naturally broadband providers have opposed this, see this previous post. The FCC's proposals for preserving the open internet are at the heart of this issue, calling as they do for broadband service providers to "treat lawful content, applications, and services in a nondiscriminatory manner" and to "disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking." These two requirements form an additon to the four general Internet policy principles previously set out by the FCC. See this previous post for more on these principles, which have underlined the ongoing net neutrality debate in the US.

Network World recently published an interesting interview with FCC Robert M. McDowell about the net  neutrality proceeding. McDowell expressed some doubts over the extent and legality of the FCC's regulatory role, mentioning the FCC/Comcast case specifically:
"Since 2002, the Commission has continued on a path of classifying broadband services as less regulated information services under Title I of the Communication Act. As such, proponents of net neutrality rules have had to argue that the commission has jurisdiction to impose these rules through its ancillary authority under Title I -- rather than directly through Title II. But, some question whether the commission can use its ancillary authority for network management regulations. That specific jurisdictional question is currently before the U.S. Court of Appeals for the District of Columbia in the Comcast/BitTorrent case. Oral arguments have already been held in that case, and it will be interesting to see how the court rules regarding the commission's ancillary jurisdiction. If the court rules that the commission does not have jurisdiction, the proposed rulemaking will be on a shaky legal foundation."
Further explanation commentary on this from Ars Technica:
"...Comcast's degradation of BitTorrent...came to light in 2008. The cable ISP used TCP reset packets to disrupt certain P2P connections, changing the purpose and use of reset packets unilaterally. But when that Comcast case was finally ruled on by the FCC, and the company was told to stop its practice, a dispute erupted: did the FCC even have the authority to act on its "four freedoms"? Those Internet freedoms were explicitly not rules, and Comcast has since gone to court over the issue. Genachowski wants to make all six of his proposed Internet principles into official agency rules to make clear to ISPs exactly what's required of them, and to make sure the FCC has the authority to act if problems arise."
And from an earlier article, also from Ars Technica:
"Although Comcast's legal arguments are complex, the crux is simple: there were and still are no statutes or credible regulations that support the Commission's authority to act on this matter, the company says...the obsessive-compulsive question for legal beagles is whether Title I gives the FCC the legal cajones to stomp ISPs if they block your efforts to download the movie trailer for District 9 via BitTorrent, Vuze, or some other P2P app. The consumer groups that petitioned the FCC to do something about Comcast's behavior say that Title I granted the FCC all the authority it needed to act in this situation. Free market groups like the Progress and Freedom Foundation contend  this ancillary authority business is way too vague to be used in something as crucial as regulating network management. PFF calls it a "standardless discretion" contrary to "the foundational principle that agencies only have that authority conferred by Congress, which ensures accountability."...The bottom line is that Comcast, as you've probably already guessed, argues that Title I doesn't give the FCC diddley when it comes to overseeing ISPs."
Comcast's opening brief is available here. If the judge finds against the FCC, the decision could have a significant impact on their ability to provide the necessary mandates to ensure delivery of the National Broadband Plan, if it also affects the FCC's wish to reclassify broadband services? Does the FCC want to reclassify broadband so as to ensure its authority and jurisdiction over broadband providers can't again be brought into question in the courts, or to ensure that USF monies can be used to support its deployment? More on this in this previous post, see the link to the Wall Street Journal.

My guess is both, that they're trying to kill two birds with one stone here. If the FCC's attempt to reclassify broadband is successful, it will be interesting what impact this has on the Comcast case, as clearly the dispute predates any such reclassification. Not the most solid foundations for leading on a National Broadband Plan?

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