When the D.C. Circuit Court of Appeals called into question the FCC’s ability to protect broadband users earlier this month, the ongoing debate about the legal classification of broadband services took on a new urgency. While we’ve argued that the Commission should waste no time in reclassifying broadband as a “telecommunications” (Title II) service, others have suggested that no action from the Commission is necessary, seeing how Comcast’s blocking of BitTorrent was an isolated act that no other ISP is likely to emulate. As if on cue, cable provider RCN has provided us with a timely reminder that Comcast isn’t the only ISP that has stood accused of blocking its users’ traffic. In a proposed settlement for a suit brought against the ISP for throttling its users’ peer-to-peer traffic, RCN is not only not held accountable for its actions, it’s also not prohibited from using similar network management techniques in the future. As this series of events demonstrates, if we’re going to rely on the ISPs to self-regulate, we might as well kiss the open Internet goodbye.
Yesterday, RCN subscribers received a “notice of pendency and settlement of class action” (PDF) in their inboxes, alerting them to a proposed settlement for a class-action suit brought against RCN in 2008 for “delaying or blocking” various protocols, including peer-to-peer file transfer protocols like BitTorrent. Rather than allow the suit to go to court, RCN and the parties filing decided last year to settle in such a manner that would not require RCN to actually admit to the throttling. What’s more, as yesterday’s notice revealed, due to a technicality, the conditions of the settlement don’t even require RCN to stop blocking its users’ traffic.
As Ars Technica explains, the settlement defines both a “P2P cessation period” and a “non-P2P cessation period,” both of which require RCN to stop throttling traffic for a period of 18 months. The problem is, both of these periods are defined in the settlement as beginning in the spring of 2009. This means that once the settlement has finally gone through at the end of this year, RCN will be free to discriminate against its customers’ traffic however it sees fit.
Normally, at this point, the FCC could commence an investigation into RCN’s network management practices and could eventually meaningfully punish RCN and order it to stop blocking traffic as it did with Comcast. The problem is that in the absence of clear legal authority to take action against RCN, the FCC is unlikely to get involved. So, as Ars puts it, “RCN appears to have carte blanche to single out BitTorrent and other P2P traffic for special throttling attention after November 1, 2010.”
As this incident demonstrates, ISPs cannot be relied on to respect the open nature of the Internet in the absence of a cop on the beat. And even if customers attempt to use the legal system to police ISPs that engage in discriminatory behavior, those ISP will likely seek to settle in a way that absolves them of responsibility and prevents them from being punished. So until the matter of the FCC’s legal authority to regulate broadband is cleared up, peer-to-peer protocols and the wealth of legal content that they provide–ranging from independent music and films to open-source software–are at the whims of service providers who have every incentive to block traffic instead of build out their networks. If that doesn’t encourage the FCC to hurry up and protect broadband users, I don’t know what will.
If you are a RCN customer and would like to reject the terms of the settlement, read this PDF.