Contrary to conventional wisdom, the FCC's order on Comcast's network management practices, reined in the net neutrality movement much more than it advanced their agenda.
- The old adage is true here, be careful what you ask for -- FreePress/Public Knowledge.
At its rawest level, the chest-beating petitioners got the FCC to: reiterate what the FCC has long said it would do, and also order Comcast to do what Comcast already publicly committed to do.
- When the dust settles and the rhetoric cools, the petitioners will better understand the old adage: be careful what you ask for.
- In this instance, they hoped to advance their agenda for sweeping net neutrality legislation and regulation, and what they ended up with was the expert agency taking much of the wind out of their sails.
How does the FCC Comcast decision limit Net Neutrality?
First, the petition proved the existing system/process works -- seriously undermining any legitimate rationale for new net neutrality legislation or regulation. (Unfortunately, for the neutralists, the public takeaway from the resolution of this petition was not that legislation is needed, but that there is a government process in place more than able to handle consumers' concerns.)
- Legislation is the public policy instrument of last resort, appropriate only when there no existing government means to deal with a perceived problem.
- Regulation isn't appropriate because the purported problem here is miniscule.
- In the three years since the FCC established its net neutrality principles and ruled broadband an information service, the FCC has now found a total of one, one problem warranting its involvement.
- That's one incident in a nation with ~200 million Internet users, ~2,000 ISPs, a trillion web pages of content, and literally quadrillions of Internet communications over that period.
- Regulation is not warranted because an enforcement process can work.
- Regulation of all ISPS, all Internet traffic, and all Internet consumers would be unwarranted overkill, which would create vastly more real problems than the potential ones it would assume to address.
Second, the petition powerfully legitimized the need for network management.
- Before this petition, the call for net neutrality legislation was absolutist: any "discrimination" was bad; there should only be one Internet tier; and "all bits are created equal."
- The petition prompted a wide public policy discussion and a wider public awareness of the need for reasonable network management to manage congestion, deliver quality of service, combat malware and illegal activity, etc.
- Where before the petition they argued that no discrimination should be tolerated, now FCC Commissioner Copps, the most ardent FCC supporter of net neutrality, has dramatically shrunk the playing field by concluding publicly in this decision that:
- "There are network management practices that most experts agree are reasonable and that are important to the development of new technologies and Internet services."
- "I also emphasize that discrimination is not per se wrong. It is unreasonable discrimination that is wrong."...
- "So the trick is to find the fine line between reasonable management techniques that allow the Net to flourish and unreasonable practices that distort or deny its potential."
- This is a remarkable shift in the playing field of the debate over net neutrality policy.
- Unable to sustain radical hardline non-discrimination absolutism in the face of facts and a real governmental process, the debate has shifted to what is reasonable -- and on that point obviously reasonable people can disagree.
Third, the petition led to an FCC rejection of the need or urgency for preemptive action in recognition that this issue warrants a fact-specific process.
- Neutralists have long breathlessly implored to everyone that would listen that the Internet discrimination threat was so imminent and ominous that it required broad preemptive action and prophylactic rules.
- However, the FCC concluded the opposite: "...not only is the Internet new and dynamic, but Internet access networks are complex and variegated. We thus think it is possible that the network management practices of the various providers of broadband access services are "so specialized and varying in nature as to be impossible to capture within the boundaries of a general rule.""
- This new official FCC conclusion shadows the reality that proponents still can't define practically what net neutrality is -- making it even harder to propose serious legislation.
Fourth, the petition resulted in the FCC dramatically limiting the traffic/content that net neutrality principles applied to.
- While the FCC's 2005 net neutrality policy statement implied that the principles did not apply to illegal content or harmful devices, this petition prompted the FCC to be much more specific.
- The Chairman's explained that net neutrality does not apply to a wide swath of existing Internet content and applications.
- "The Commission’s network principles only recognize and protect user’s access to legal content. The sharing of illegal content, such as child pornography or content that does not have the appropriate copyright, is not protected by our principles. Similarly, applications that are intended to harm the network are not protected."
- Given that: over half of Internet traffic is P2p and ~90% of P2p traffic is illegal piracy per the US PTO; given that 40% of email is spam per the Spam Filter Review; and given that 28% of pay per clicks of the large search engines are fraudulent per Click Forensics; the majority of Internet traffic is not protected by the FCC's principles and can be legally blocked.
- Concerning the other half of Internet traffic, the FCC Chairman's explanation indicates that network management is likely to be reasonable if "an operator is willing to disclose fully and exactly what they are doing" ... and they do not block applications arbitrarily: i.e. "the network management technique arbitrarily blocks or degrades a particular application."
- In short, the essence of this point is that the before the petition, neutralists had implied that net neutrality was an Internet-wide absolute -- what we now know from the FCC is that net neutrality does not apply to over half of the Internet's traffic at all, and the other half of traffic potentially could face legal and reasonable blocking or degrading of some type -- if the network management practice is fully disclosed and not arbitrary.
Finally, the petition prompted the FCC to suggest new ways that the ISPs could legally manage congestion and not run afoul with the FCC's net neutrality principles -- suggestions that the petitioners strongly oppose -- oops! Be careful what you ask for...
- From the order para 49: "Comcast has several available options it could use to manage network traffic without discriminating as it does. Comcast could cap the average users’ capacity and then charge the most aggressive users overage fees. Or Comcast could throttle back the connection speeds of high-capacity users (rather than any user who relies on peer-to-peer technology, no matter how infrequently)."
- By explicitly and proactively explaining that there are other ways to manage traffic congestion, the FCC is practically giving a nod of approval for these types of congestion management techniques.
- This is clearly not an outcome the petitioners expected or wanted to come out of this order.
Bottom line: To cut to the quick, the petitioners ham handed tactic in bringing this petition to the FCC backfired badly despite their boastful self congratulations to the contrary. (See Free Press/SaveTheInternet and Professor Lessig's Tarzan-like screams that they are the kings of the net neutrality jungle.)
- What we now know is that:
- The system works and that there is no need for legislation or regulation;
- The need for network management has been powerfully legitimized;
- The FCC rejected the need for preemptive rules;
- The FCC dramatically limited the amount of Internet traffic content the FCC net neutrality principles apply to; and
- The FCC suggested alternative ways to legally manage traffic neutrally, usage caps, overage fees, and high-user throttling.
Now we understand why Public Knowlege and FCC Commissioner Copps are calling for the addition of a "Fifth FCC net neutrality principle" explicitly prohibiting discrimination.
Seems like Public Knowledge and FCC Commissioner Copps get the joke, and realize that this petition did not yield the sweeping endorsement of the proactive Internet regulation that they had hoped for.
