FCC probably can't police Comcast's BitTorrent throttling
Federal regulators are planning to meet on Friday and declare that Comcast violated Net neutrality principles when throttling BitTorrent traffic on its network. This would become the U.S. government's first Net neutrality-related ruling.
There's just one problem with the Federal Communications Commission's plans: They may not be quite, well, legal. In other words, the FCC may not actually have the authority to make its ruling stick.
In 2006, Congress rejected five different bills, backed by groups including Google, Amazon.com, Free Press, and Public Knowledge, that would have handed the FCC the power to police Net neutrality violations. Even though the Democrats have enjoyed a majority on Capitol Hill since last year, their leadership has shown zero interest in resuscitating those proposals.
It's true that the FCC adopted a set of principles in August 2005 saying "consumers are entitled to run applications and use services of their choice." But the principles also permit providers' "reasonable network management" and, confusingly, the FCC admitted on the day of their adoption that the guidelines "are not enforceable."
Friday's scheduled vote at the FCC stems from a request submitted in November by Free Press and its political allies, including some Yale, Harvard, and Stanford University law school faculty. They claim the FCC has the authority--under existing law--to "impose additional regulations" declaring Comcast's throttling to be illegal.
"Should Comcast finally be held accountable for its illegal practices, it will be the direct result of historic public involvement in this precedent-setting debate," said Marvin Ammori, general counsel of Free Press, which is funded in part by George Soros' Open Society Institute. "We look forward to seeing the order, and commend the FCC for conducting such a thorough investigation on behalf of Internet users everywhere."
FCC Chairman Kevin Martin, a Republican and occasionally the swing vote at the commission, is reported to be in favor of ruling against Comcast. It's no stretch to say the FCC's two Democrats, Michael Copps and Jonathan Adelstein, will join him. That leaves the remaining two Republican commissioners dissenting; commissioner Robert McDowell wrote an op-ed article published in the Washington Post on Monday that the Internet would "die of clogged arteries if network owners had to seek government permission before serving their customers by managing surges of information flow."
Lacking authority
Lack of legal authority hasn't stopped the FCC before. In 2005, a federal appeals court in Washington, D.C., ruled the agency did not have the authority to draft its so-called broadcast flag rule. Last week, a federal appeals court in Pennsylvania ruled the FCC's sanctions against CBS, which publishes CNET News, in the Janet Jackson Wardrobe Malfunction Incident amounted to an "arbitrary and capricious change of policy."
(Ironically, some of the same interest groups that sued the FCC over its claim to possess unfettered authority--even in the absence of congressional authorization--to enforce broadcast flag rules are now backing its theories of unfettered authority to police Net neutrality violations. Public Knowledge, for instance, claimed the FCC's use of so-called ancillary authority was "arbitrary and capricious" and "unlawful." Now it loves the idea.)
For its part, Comcast has been adamant that it would be unlawful for the FCC to hand down a cease-and-desist order related to BitTorrent. Its filings with the agency read like legal briefs, and amount to an unsubtle promise to file a lawsuit if the FCC proceeds. One, for instance, warns the FCC that any ruling "clearly would be subject to close and skeptical judicial review."
Comcast spokeswoman Sena Fitzmaurice on Monday declined to say whether her employer would sue, saying the text of any order has not been released and it's not clear what authority the FCC would invoke.
But she offered what amounts to a strong hint that a lawsuit is in the works: "Does that legal standard set precedent for the future about other legal decisions? If you let a statement saying they have ancillary authority potentially go unchallenged, does that have further implications?" (Comcast has hired Helgi Walker, a partner at the law firm of Wiley Rein and a former associate counsel to President Bush on FCC matters, to represent it before the commission.)
For Comcast, there are some risks to a court challenge. For now, at least, the vagueness of the FCC's Net neutrality principles can be useful to both sides: broadband providers and Free Press can point to them as supporting their respective positions. If a court declares them to be unlawful, the ruling could invite more specific regulations or explicit legislation from Congress.
Coming clean
In March, Comcast announced a kind of detente with BitTorrent, saying it would move toward a "capacity management technique that is protocol agnostic." Before the announcement, Comcast had responded to network congestion caused by BitTorrent users by sending forged TCP reset packets, which disrupted transfers and prevented some users from uploading files.
Not helping Comcast's credibility was its poker-faced denial in August 2007 of initial allegations that it was filtering BitTorrent traffic. A few months later, though, it turned out that Comcast really was throttling BitTorrent after all, and the company was forced to concede to the FCC that it blocks only "excessive" traffic. That also handed competitors like AT&T a perfect opening to say that they don't throttle peer-to-peer traffic at all.
But even if Comcast was being less than forthcoming, it doesn't mean the FCC has the power to fine it or issue a cease-and-desist order. The U.S. Supreme Court ruled in another FCC case that "an agency literally has no power to act... unless and until Congress confers power upon it." And that doesn't seem to have happened here.
If FCC enforcement against Comcast is illegal, why would Chairman Martin call Friday's meeting? Only he knows for certain, but one explanation is that if the FCC is embarrassed when slapped down by a federal appeals court two years hence, Martin will have long since departed to a lucrative partnership at a law firm or private equity firm. (This is a customary exit path for FCC chairmen: Newton Minow went to Sidley Austin; William Kennard went to the Carlyle Group; James Quello went to Wiley Rein, named for ex-chairman Richard Wiley, where equity partners made an average of $4.4 million in 2006.)
Friday's ruling may also end up as a cautionary tale for AT&T and Verizon, which as recently as last month seemed to be egging on the FCC to take action against their cable industry rival. But the same activists that have targeted Comcast before the FCC no doubt realize that AT&T's terms of service limit "peer-to-peer applications"; Verizon Wireless flatly prohibits them; Verizon's Fios service blocks incoming port 80. Another term for those network management practices is "Net neutrality violations."
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan. 
Le's see what this people have to say when Comcast stops running QOS and the end result is that on demand streams become choppy and VOIP becomes unusable.
First, the FCC gets to pretend that they are acting on behalf of consumers (...even though, it is rather, painfully, clear that nothing will actually be done to Comcast).
Next, ISPs will actually be given free-reign to engage in exactly this kind of activity (...even if, ISPs do have to jump through a few more verbal-hoops, and include a line or two about "network-management" in the TOS).
And finally, The FCC will undoubtedly be given the far greater legal-authority/control (you know... "...the tools they need...") over the Internet, that the FCC (and other elements within the Government) have been screaming-about for months.
So... Consumers get nothing. The Government gets greater power over the Internet. And, business-as-usual for large corporate-interests, is maintained.
...And, all the while the lies about technical-necessities, consumer-choice and freedom, and obvious corporate/government-corruption, roll-on, unabated.
Can you say... CHA-RADE..?
That's not the point, and it's why we should be dealing with the FTC. I have Comcast as my ISP. I pay for 12+ Mbit service up to a certain amount of total transfer in the month. If I want to start the month downloading bootleg copies of Windows 24/7 until I hit my bandwidth cap four hours later, that's my right. It's within the service that I am trading my money for. If they don't have the hardware capability to provide their users that service, well, they shouldn't have offered it. Sorry. What if this was a different industry? What if you bought a car that was supposed to get 60 MPG? You paid for it. Then, it gets 20 MPG. It'd be a bait-and-switch, just like this operation.
And, last time I checked, their DNS servers were still vulnerable to poisoning. Stop adware? That's laughable.
But in this case, the FCC published only a vague and explicitly unenforceable policy statement (a list of "principles") on which the public had no chance to comment at all. And it's now trying to say, "Fooled ya! You believed us when we said that it was nonbinding, but we're retroactively turning it into a set of hard and fast rules so that we can take a swipe at Comcast. Why? Because we want to, that's why." That's arbitrary.
Worse still, the FCC's policy statement had several serious problems. For example, it required that Internet users be allowed to run the "application of their choice." While politicians may not grasp the full implications of this, tech-savvy folk understand how dangerous this could be. An "application" (a computer program which is not an operating system) encodes and embodies behavior -- any behavior at all that the author wants! And anyone can write one. So, insisting that an ISP allow a user to run any application means that anyone can program his or her computer to behave any way at all -- no matter how destructively -- on the network, and the ISP is not allowed to intervene. In short, such a requirement means that no network provider can have an enforceable Acceptable Use Policy or Terms of Service. Port scanning? The ISP has to allow it, even if it's a prelude to an attack, because it's not illegal. Better turn off all of the intrusion detection systems which detect and block port scans! Exploits? If they haven't been declared to be outright illegal, they are "applications" and so you must not block them. Anyone who engages in destructive behavior, hogs bandwidth, or even takes down the network with an intentionally or unintentionally destructive program could just say, "I was running an application, and I have the right to run any application I want, so you can'' stop me. Phbbbbt."
Great work, FCC.
Now, imagine yourself as the administrator of a university network, a public hotspot, an ISP, or any other network which provides service to the public. Someone is doing something disruptive. Your users are complaining; quality of service has deteriorated. But if you act, and especially if you focus on the destructive behavior by detecting the rogue application and attempting to block it and not others (so that legitimate traffic can still get through), you would be subject to FCC fines and penalties.
Sensible rules don't lead to conundrums like this. Proposed rules or regulations pertaining to the Internet should be presented to the public for comment as part of a formal rulemaking process, so they have the chance to point out scenarios in which they would be unworkable or do harm.
What's more, in this ruling the FCC is not only regulating what Congress, in its OWN policy statement, said must not be regulated. If the FCC makes a policy statement, and Congress makes one, the one made by Congress obviously trumps the FCC's. The Congressional policy statement is laid out at 47 USC 230(b), and it says:
It is the policy of the United States:
...
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
A policy statement by Congress trumps any contrary policy statement made by the FCC.
But not only is the FCC ignoring the law, it's acting it arbitrarily and capriciously -- violating the Administrative Procedure Act and the Due Process Clause of the Constitution. The courts will surely recognize this. But in the meantime, the fear, uncertainty, and doubt created by the FCC's decision will deter investors from putting money into broadband deployment. And it could shut down small, independent, rural, and wireless ISPs, who cannot afford NOT to filter P2P. (Failing to filter P2P would decimate their quality of service, or force them to meter by the bit.) Maybe that is the real agenda: to kill all remaining competition for the cable and telephone companies, thus ensuring that none of the expensive, recently auctioned spectrum can create another alternative?
First, Comcast was NOT, actually, "managing" their network, or the available bandwidth. Nor, were they targeting "disruptive" behavior. Frankly, to re-state (or, even, imply) those (completely-disproven) FALSEHOODS, at this point, can only be considered to be an out-and-out LIE. Comcast was arbitrarily (and fraudulently) terminating application-usage. THAT, is what they were called on the carpet, for. And, THAT is what SHOULD be prevented in the future.
Next, there IS a huge difference between halting, ACTUALLY-DEMONSTRATED, "disruptive" (or, even illegal) operations across a network... and capriciously interfering with legitimate consumer-use of a, supposedly, "agnostic" (Comcasts, own, new buzz-word) common-carrier service. And, the implication that (under, almost any, basic consumer-rights legislation) carriers would (somehow) be powerless to stop, actually, destructive network behavior, or obvious criminal-acts, is complete, and utter, NON-SENSE. In short... that would have to be considered to be a LIE, too.
Furthermore, NO... Comcasts business IS NOT, truly, merely a "private network". That is another intentional mis-representation. They ARE a "common-carrier"... allowed to exist under PUBLIC auspices and protections, and under PUBLIC grants of PUBLIC-resources. So, the assertion that they [Comcast, or any other such common-carrier] should be completely-free to operate in, virtually, any way that they see fit, is complete nonsense (at best), and deceptive-hypocrisy (at worst). And honestly, Id say that such a FICTION is very much the equivalent of the very TAX-PAYER-LIABILITY, but PRIVATELY-ENJOYED-PROFITS, model that is currently causing so much corruption and mayhem, in the U.S. economy and politics.
But... I will accede to a couple of points... Clearly, mere, "FCC Guidelines" ARE NOT truly capable of protecting consumer, tax-payer, nor citizen, rights. That is why we DO so desperately need TRUE "Network Neutrality", codified into Law. This entire "Comcast" episode HAS, fairly-effectively, proven this.
And, no... I dont want the FCC to be able to interject any greater restrictions on content, or use, of the Internet by citizens. However, preventing OBVIOUS-ABUSES of consumers, by large businesses... is another matter entirely.
The FCC is flagrantly discriminating against Comcast, for the simple reason the Kevin Martin is a stooge for the Bells and Comcast is their number one enemy. So behavior that he encourages on the Bells' part is bad when Comcast does it.
Yes, we used to have something called "rule of law" in the United States. I think we inherited it from colonial-era Britain, and we even wrote it down in a document called "The Constitution". Last I heard, the Cheney-Rove regime had burned it in a White House fireplace one summer while roasting weenies and marshmallows with the air conditioners running. Washington acts like the capital of Equatorial Guinea.
Comcast's behavior was so flagrant that it took a very careful investigator with some protocol-analysis tools to figure out that anything at all was amiss. It was so flagrant that nobody knew it was going on. Yet it did serve a useful purpose. All retail ISPs, even DSL, have shared facilities (the upstream link from the DSLAM or the cable itself, same thing), and if a user jabbers away at far-above-expected speeds, it displaces others' usage. Real-time gaming and VoIP, for instance, get spoiled when torrent seeders tie up the cable. (Cable's weak point is upstream capacity. user to network. This is a technical issue going back to ancient FCC rules requiring cable systems to carry TV Channel 2 "on channel" at 54 MHz, thus keeping the upstream below 42 MHz. Euro-DOCSIS extends the upstream spectrum to 65 MHz.)
Vuze, who brought the complaint, wants to sell huge TV show downloads across cable modems, competing with cable operators' broadcast-distribution business. Again, in Kevin Martin-land, the enemy of my enemy is my friend.
Traditional FCC rulemaking simply doesn't work for regulating Internet content. Some possible rules would open up networks to spammers and other malware operators. The bad guys will figure out how to get around rules that take years to fix.
The only way to have a properly neutral Internet is to allow open entry into the ISP business. That WAS the rule until 2005, when the FCC closed the Bell networks to indepenent ISPs, creating the duopoly. Re-open common carriage and the problem goes away. Not that Vuze will get a free ride, but if 10 or 20 ISPs refuse to let them on, or only a $100/month service does, then maybe the market is speaking. Right now there is no market.
The problem is that there are NO common carriers left. Telephone companies were granted legal monopolies, with rate-of-return regulation (mostly until 1992), to build plant as common carriers. They no longer have legal monopolies but it's nonsensical to build additional wire to the home. Only cable exists as the second wire, and it was built without utility regulation or easy funding. Until 2005, any ISP had the right to lease the telephone company's raw DSL wire. This FCC ended that, precisely to allow the telephone companies to really start breaking the Internet. (They work slowly, so their plans, mostly under the "IMS" banner, are still in the lab.)
Rule of law does not mean rule of the law as some consumer might imagine it might be, but isn't.
If worst comes to worst, have the FCC make a HUGE DoS attack on all the comcast servers until comcast gives up and lets up their filters!
I WANT TO SHARE MY TORRENTS!!!!!!!!
Thank you for reading.
However, cable companies and their transmissions lie squarely within the FCC's authority. There is no contradiction here.
- by BrettGlass August 2, 2008 8:48 PM PDT
- Public Knowledge is one of the groups of unethical, inside-the-Beltway lobbyists and lawyers who want the Internet to be regulated so that they, who have the entire day to spend in DC, get to dictate the rules for the rest of us -- including those of us who actually work for a living. Same deal with Free Press, which also lobbied for this unprecedented and illegal action. These people are beneath contempt.
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