Let me see if I've got this right. Federal regulators determined on Friday that Comcast broke the law by slowing Internet traffic for subscribers using BitTorrent to swap large files with other people. But then the FCC decided it was enough to issue a press release declaring the victory of the rule of law and now it's time to move on.
Not a penny in fines was assessed and not the slightest penalty suggested.
OK. Post-Enron, post-Bear Stearns, post the subprime debacle, I'm long past being surprised by big corporations trying to cover their posteriors for posterity. But what's really amusing here is that Comcast thinks even this rap on the knuckles is undeserved.
"We believe that our network management choices were reasonable, wholly consistent with industry practices," a company spokeswoman said in a statement.
But this is less about Comcast's ham-handed ways and more about the absence of leadership in Washington. The Federal Communications Commission, a notoriously political institution, is being forced to figure out federal Internet policy on its own. Pulled and pushed in different directions, is it any wonder that the FCC decision comes off as inconsistent?
Critics correctly note that Congress still has not given the FCC explicit authority to decide Internet policy. Even as the FCC issued its decision, Chairman Kevin Martin went on record writing that while Comcast had no right to prioritize Internet traffic, it's fine to prioritize voice over IP:
We do not tell providers how to manage their networks. They might choose, for instance, to prioritize voice-over-IP calls. In analyzing whether Comcast violated federal policy when it blocked access to certain applications, we conduct a fact-specific inquiry into whether the management practice they used was reasonable. Based on many reasons, including the arbitrary nature of the blocking, the lack of relation to times of congestion or size of files, and the manner in which they hid their conduct from their subscribers, we conclude it was not.
We do not limit providers' efforts to stop congestion. We do say providers should disclose what they are doing to consumers.
So it's OK to put individual data packets under a magnifying glass? But in its group statement--which Martin presumably signed off on--the FCC approvingly cited MIT professor David Reed, a respected Internet notable, who believes "that "(n)either Deep Packet Inspection nor RST Injection"--Comcast uses both to manage its network--"are acceptable behavior."
This takes Emerson's apercu that a foolish consistency is the hobgoblin of little minds to an extreme. Maybe the private sector can figure things out without confusing itself over regulation from bureaucrats. But they first need clear rules of the road to follow. Otherwise, expect more of the same.