16 May 2010

How exactly did Comcast win?

On April 6th 2010, a US Court of Appeals found that Comcast could not be held accountable for a ruling made by the FCC. For some following the whole process, this seemed pretty odd.

As a quick recap, here's how this began:
Initial reports of users having trouble with BitTorrent connections began to circulate on discussion forums around May 2007. Those affected appeared to be Comcast subscribers, and observers began speculating about the causes. A Comcast subscriber named Robb Topolski ran a tool called a packet sniffer3 while attempting to "seed" (i.e., offer to others for download) files on BitTorrent and discovered unexpected TCP RST packets that were causing inbound connections to his computer to die.

The EFF proved that Comcast was injecting packets into sockets that were crucial to BitTorrent traffic. If you've written code that worked over sockets, consider how much overhead you'd require to validate that the transport layer wasn't screwing you. The FCC got involved next:

The FCC determined that Comcast had violated the agency's Internet Policy Statement when it blocked certain applications on its network and that the practice at issue in this case was not "reasonable network management."

What happened next was quite interesting. Here's how Comcast came back (from the same Open CRS document above):

Comcast argues that the FCC does not have the authority to enforce its Network Management Principles and the Commission's order was invalid for that reason.

We now had the following scenario:
  1. The FCC called out a major ISP and said that they were in violation of reasonable network management practices
  2. Comcast responded by saying that the FCC had no jurisdiction to make such a claim and appealed the ruling from the FCC

Here's what Comcast's PR machine signed off with as they went to court with the FCC:

It’s truly sad that the debate around “net neutrality,” or the need to regulate to “preserve an open Internet,” has been filled with so much rhetoric, vituperation, and confusion. That’s gone on long enough. It is time to move on, and for the FCC to decide, in a clear and reasoned way, whether and what rules are needed to “preserve an open Internet,” and to whom they should apply and how. In launching the rulemaking, the FCC said that greater clarity is required, and we agree. Comcast will join many other interested parties in making comments to the FCC this week regarding its proposed open Internet rules. Our goal is to move past the rhetoric and to provide thoughtful, constructive, and fact-based guidance as the FCC looks for a way forward that will be lawful and that will effectively balance all the important interests at stake.
Comcast, the FCC, and "Open Internet" Rules: Where We Stand

Nonetheless, this went to court, and a US Court of Appeals found that Comcast was indeed legitimate in its challenge:

..the Commission relies on section 4(i) of the Communications Act of 1934, which authorizes the Commission to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i). The Commission may exercise this “ancillary” authority only if it demonstrates that its action—here barring Comcast from interfering with its customers’ use of peer-to-peer networking applications—is “reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities.” Am. Library Ass’n v. FCC, 406 F.3d 689, 692 (D.C. Cir. 2005). The Commission has failed to make that showing.

It seems like a US Court just ruled that the FCC doesn't have the authority to tell an ISP not to tamper with subscriber traffic. I hope you're as stunned as I am.

On May 6th, Congressman Jay Rockerfeller and Representative Henry Waxman wrote to the FCC Chairman. Here's an excerpt from their letter [PDF] :

We believe that it is essential for the Commission to have oversight over these aspects of broadband policy, because they are vitally important to consumers and our growing digital economy. For this reason, in the near term, we want the agency to use all of its existing authority to protect consumers...

To accomplish these objectives, the Commission should consider all viable options. This includes a change in classification, provided that doing so entails a light regulatory touch, with appropriate use of forbearance authority.

In the long term, if there is a need to rewrite the law to provide consumers, the Commission, and industry with a new framework for telecommunications policy, we are committed as Committee Chairmen to doing so.

It seems clear, from both the court ruling and the political stance, that the FCC is a operating from a position that needs to be revisited. Ironically, even Comcast seems to think so.

As a populace, it seems like a great opportunity for American citizens that care about their network (which is part of a bigger network) to write their political representatives. Consider for a minute how similar these two are:
  • an ISP that has a monopoly on a subscriber base that chooses to manage traffic sending malicious packets down sockets to disrupt traffic
  • a country that chooses to regulate where your sockets can connect to
A democracy is only as strong (and smart) as the people that participate in it. Now is the time to learn and take a stance on what you think broadband rights, net neutrality and the regulation of the internet should look like. Get educated, start talking about it, and write to your representatives. New laws are going to be made and you've got a ringside seat in being able to shape them.

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