Comcast's defense of its indefensible practice of throttling BitTorrent rests on the definition of the word “block.” For such a big company, and for such a big industry, that's not much of a defense. But at the point, it's all they have. The question is whether it will be enough to save Comcast from being the test case that proved the need for a strong government presence to keep the Internet open and free from network control.
At the Federal Communications Commission's (FCC) extraordinary hearing in Cambridge, Mass., yesterday (Feb. 25), FCC Chairman Kevin Martin said that companies can't “arbitrarily block access to particular applications and services” and that any such blockage must be done in a way transparent not only to consumers but to applications developers. He said the Commission was “ready, willing and able to step in” if it found such a situation
Comcast's David Cohen maintained that his company never blocked access to any applications, that the company merely delayed some traffic in periods of network congestion. In response to Martin's call for transparency in network management, Cohen cited a new disclosure policy on his company's Web site.
If the Commissioners were forced to negotiate a compromise on this crucial issue, there certainly is enough wiggle room there for a mealy mouthed decision finding that Comcast really didn't “block” any applications while calling for network operators like Comcast, Verizon or AT&T to be more vigilant and transparent in managing their networks. Such a decision would overlook the reality that to delay traffic is a form of blocking the use of an application or service, as consumers will go elsewhere.
Such a decision would be wrong, because it would only postpone the day when network operators are called to account for their continuing efforts to inject themselves into the Internet. As the testimony indicated, Comcast's actions in network management were outside the bounds of how the technical Internet community works. David Reed noted that there are ways to manage networks properly and there are ways not to. Clearly, Comcast was out of bounds, and other cable operators doing the same thing, using hacker-like reset packets, similarly should be stopped. Disclosure and transparency here aren't the issue. Increased disclosure and transparency aren't the solution. That's not to say that what Comcast proposed did much of either. Saying in its Terms of Service that it could “manage” its network in periods of high use doesn't tell the consumer anything. Disruptions are still possible at any time, for whatever reason Comcast wishes. There is no recourse for consumers who, as far as they know, are using legal applications with legal content.
It would also be a shame if a much larger point from the hearing were lost. As Yochai Benkler, Tim Wu and others pointed out, the U.S. is slipping in its broadband policy. Marvin Ammori of Free Press called the U.S.'s broadband a “third world network” because we pay more for less in many other countries. The reason, Benkler said, is that other countries maintained the policies we discarded that create competition.
“This is no country for old bandwidth,” Rep. Ed Markey (D-MA), the chairman of the House Telecom Subcommittee said in the obligatory Academy Awards reference. He's right, but until regulators and legislators recognize that and do something about it by creating the environment for more responsibility while enabling more competition, old bandwidth and punitive network “management” will be our Internet life.