The Federal Communications Commission (FCC) is about to learn the wisdom of the saying from the philosopher Lawrence Peter Berra: “When you come to a fork in the road, take it.” There are two very distinct pathways that were sketched out to the Commission this week in filings on the Comcast throttling of peer-to-peer traffic.
Following one fork will lead the Internet down the road to a new cable system, with all-powerful, self-interested near-monopoly carriers running things as they please. The other road would preserve the Internet as a sanctuary for open development, innovation and freedom. The pleading filed by Comcast is a good example of the first direction. The comments filed by Free Press, Public Knowledge and others would lead in another.
Comcast’s argument can be summarized very easily. Comcast will manage its network as it sees fit and the FCC can do nothing about it. Comcast will determine what practices are good for consumers and which are not. The FCC’s pathetic little “principles” are toothless, Comcast asserts, and anyway what we’re doing complies with them. Bug off. Comcast reserves for itself the right to decide which applications get used, by whom and how. It reserves for itself in the name of network management the right to discriminate.
Free Press, as you might imagine, points Internet policy toward serving the public interest. It traces the history of government involvement in telecommunications, even from the 1996 Telecommunications Act and shows that it has been a consistent theme of public policy that discrimination in the provision of network services hasn’t been allowed before, and shouldn’t be allowed now.
The Comcast pleading is as notable for its internal inconsistencies as it is for the arrogance it displays. Reading the document, one would never know that government regulated telecommunications for more than 70 years, and companies managed their increasingly complex networks, during that time all the while adhering to the section of the Communications Act that prohibited “unreasonable discrimination.” Reading the document, one would never know that the cable industry has yet to implement the consumer-friendly, market-opening provisions directed at cable in the 1996 Act.
Trust us, Comcast asks the Commission and the public. We know best how to manage our network. And if we don’t, outside forces will make sure we shape up. As Comcast put it: “Network management is best left to the sound, good-faith judgment of the engineers and proprietors who run and own the networks and who are best able to remedy customer service issues promptly, rather than to regulation. The self-policing marketplace and blogosphere, combined with vigilant scrutiny from policymakers, provides an ample check on the reasonableness of such judgments.”
It’s nice to know that Comcast places such faith in the blogosphere to call foul on them, even as they deny the claims made by the blogosphere in this proceeding. On the other hand, deeper in the pleading Comcast provides its true view of public participation: “Rather than rushing to judgment based on the unsubstantiated claims of a small but vocal minority of broadband users, the Commission should continue to monitor the marketplace for any genuine problems that may arise and that might require remediation beyond that which results from fierce competition and empowered consumers.”
So, when exactly does the irresponsible “small but vocal band” transform into the blogosphere and “empowered consumers”? How many people have to appear in front of FCC hq in Washington with pitchforks and torches in order to be considered legit? Comcast doesn’t offer any guidance here.
Of course, it would help if the public actually knew what was going on with the network. As Free Press pointed out, until Oct. 19, 2007, Comcast “had repeatedly, point-blank denied throttling BitTorrent and other peer-to-peer connections.” It wasn’t until the Associated Press publicized its test of the network, followed by the Electronic Frontier Foundation (EFF), that Comcast was forced to admit publicly it was doing what it had denied doing all along. And despite protestations to the contrary, it appeared to be doing the blocking by forging packets that cut transmissions by computers using peer-to-peer applications to upload material.
Comcast now promises it will be more open. But that’s hardly sufficient as the Free Press/PK comments argue: “To ensure that providers do not secretly block applications and to improve network management, network providers should be required to disclose their network management tactics. Disclosure, alone, however, cannot support a market outcome which consumers want—open networks—because the market for network provision is far too concentrated for consumer choices to prevail. Moreover, network providers and the FCC have repeatedly promised American citizens not mere disclosure about closed networks but the open and competitive networks themselves.”
Comcast concentrates its disdain on one particular protocol – peer-to-peer. Not coincidentally, that technology offers the best way for consumers to maximize use of the network in such services as voice and video, which just happen to compete with Comcast’s offerings.
The problem with P2P, it seems, is that its use taxes the network in a way the network wasn’t designed to handle. Cable designed its Internet offering as it would a traditional cable network – with emphasis on the download, and little on the upload. They spent millions enhancing their network for video on demand and like services that depend on passive consumers. Peer–to-peer changes that relationship by empowering consumers to create and to upload material using the network more efficiently.
As part of its effort to demonize P2P, Comcast quotes Bram Cohen, the developer of the popular BitTorrent P2P application as saying that his goal was to “use up a lot of bandwidth” and that he asked “Why should I care?” if the Internet Service Providers didn’t like it.
The story also documents how EFF’s Peter Eckersley demonstrated the presence of Comcast’s blocking technology, the fact that Cohen’s goal was to use the network more efficiently, that more accepted uses of BitTorrent are growing every day. This bit also was left out of Comcast’s citation of the story: “Cohen says that while Comcast filtering hurts his business model, he sees an opportunity to work with ISPs in a friendly way so BitTorrent doesn't swamp Net traffic. His engineers intend to make the company's software more bandwidth-conscious this year.”
The government and the telecom industry have been down this road before. Once we had the Bell System which maximized control over everything. It was broken up and a competitive industry was launched, only to be crushed by regulators and the telephone companies. Now we have the chance to set ourselves back onto the direction of a policy that created new companies and new opportunities for innovation and new choices for consumers. Or we could put everything back in the hands of a few. As Mr. Berra put it, “It’s déjà vu all over again.”