Maybe the FCC can handle the truth.
A couple of days ago, we asked the question whether the Federal Communications Commission was up for confronting the reality of Comcast’s blocking and throttling of peer-to-peer traffic and, if so, what the Commission would do about it.
Just as Jack Nicholson’s character, Col. Nathan Jessep, was arrested at the end of the movie, “A Few Good Men” after telling Tom Cruise’s character Lt. Daniel Kaffee the truth, it looks as if the Commission is preparing to take some action against Comcast.
FCC Chairman Kevin Martin made his announcement in dramatic fashion at a Senate Commerce Committee hearing. He wasn’t on the original agenda to testify. Martin’s staff contacted the Committee the afternoon before the April 22 hearing and asked if he could testify. Martin wanted to a big forum for a big announcement, and he made the most of it.
In his written testimony, Martin set out a case against Comcast and, by implication, other service providers which are engaging in the same practice of falsely interfering with consumer traffic. The general principle Martin identified is whether a network management practice selectively or arbitrarily targets particular applications or types of content. If so, he said, then the Commission should look at the event with “heightened scrutiny” to make sure there is a “compelling interest” in what the network operator is doing.
Getting to the specifics of Comcast, on which the FCC held two field hearings, Martin said that the use of the hacker-like “reset packets” used on peer-to-peer users was not used to “occasionally delay traffic” at particularly congested nodes. Martin noted that testimony at the hearing found the practice was widespread and couldn’t be targeted to when a particular part of the network is congested. In addition, he said it’s not clear when Comcast will stop using their current approach.
A new report Vuze submitted to the FCC found that the reset packet problem is far greater than originally thought and is used far more widely.
Senators at the hearing wanted to know whether Martin needed additional authority to deal with the situation, as the legal status of the FCC’s Policy Statement on the rights of Internet users is somewhat murky. Martin maintains he has all the authority he needs. The cable industry says he doesn’t have it. Some Senators don’t want to “regulate the Internet.” Martin said, in response to a question from Sen. John Kerry (D-MA), that confirming the authority Martin thinks he has would not be “reregulating the Internet.” A bill by House Telecom Subcommittee Chairman Ed Markey (D-MA) inserts the Policy Statement principles into the Communications Act and might be a guide to looking at the issue.
The central point, however, is not the mechanics of network management. It is the assertion of network operator control to the restriction of consumer rights. This is the same principle PK and others raised in our petition to the Commission asking that they clarify that text messaging is a service which is subject to nondiscrimination rules, and that blocking text messaging services to quell speech or to stifle competition is unjust and unreasonable discrimination.
Even though the original offender, Verizon, reversed course and backed away from its original decision to deny a short code to NARAL Pro Choice America, Verizon and every other wireless company still have the capacity to limit this new form of speech in a very real way.
As the Commission makes it way through the Comcast issues, we hope they don’t lose sight of the bigger principles at stake.