Communications Advisory Bulletin
FCC
Imposes New Government Constraints on Internet Network Management
By Paul
Glist and John
D. Seiver
[August 2008]
On August 1, 2008, the Federal Communications Commission voted
3-2 to issue an order imposing regulatory controls on the Internet.
The ruling concerns a network management technique used by Comcast
for its high-speed Internet service that had the effect of giving
slightly lower priority to some peer-to-peer (P2P) upload sessions
so that the latency-sensitive applications of the vast majority
of its Internet customers would remain uninterrupted. The Commission
ruled that the practice—which Comcast previously announced
would be phased out this year—violated the Commission’s
“network neutrality” policy guidelines and amounted
to discriminatory “blocking” and “monitoring”
of Internet content, as well as “interference” with
consumers’ “right to access” lawful Internet content.
While not fining Comcast, the Commission instead orders Comcast
to report on the technique, submit a compliance plan for terminating
it by year-end, and describe to the FCC and the public the specifics
of what new management techniques will be implemented. Noncompliance,
warns the Commission, will be subject to future injunctive relief
and additional enforcement actions.
The Order, the text of which is not yet available, reviews the
specific technique of using deep packet inspection and packet reset
signals to control the bandwidth consumption of P2P applications.
It finds the technique to be discriminatory, and therefore subjects
Comcast to a newly created obligation to justify the technique as
being carefully tailored to be minimally intrusive. Because the
technique did not affect all applications that consume large amounts
of bandwidth, and was not confined to peak congested periods and
locations, it was found to be insufficiently justified. The FCC
also insinuates an anticompetitive motive, suggesting that Comcast
was discriminating against P2P video downloads. The Order even accuses
Comcast of inspecting and censoring consumers’ content. The
Order claims that this is all in contravention of a previously announced
FCC “policy.”
The Order is controversial, for at least four reasons.
First, the factual premise of the Order is highly suspect. The
existing Internet network congestion avoidance algorithms were adopted
by the engineering community in 1987, long before P2P. P2P was specifically
designed to evade these congestion avoidance algorithms, by opening
multiple stream flows to transport one title to one recipient. The
result is that without network management, P2P can consume nearly
all available bandwidth. At peak times, 5 percent of Internet consumers
are using 90 percent of the available bandwidth. One cannot build
out of this problem by expanding capacity. Even Japanese networks
with far greater bandwidth are facing P2P congestion collapse and
employ network management techniques to limit P2P. Otherwise, P2P
applications from the rest of the world will swarm to that network
and overwhelm its upload capacity. The specific network management
technique at issue in this case imposed trivial and imperceptible
delays on uploads (rather than downloads) of a small fraction of
peer-to-peer files, in order to protect the operation of latency-sensitive
applications of the other 95 percent of customers. Although the
item was presented with claims of anticompetitive incentive, the
technique did not block downloads of competing video and in fact
protected the integrity of video streaming over the Internet. The
Commission’s “findings” to the contrary are widely
perceived to have their origin in FCC Chairman Kevin Martin’s
political hostility to the cable industry, to which have been added
Commissioners Michael Copps’ and Jonathan Adelstein’s
desires for a formal rule of nondiscrimination among bits and bytes.
Second, the operational concerns going forward are significant.
Dissenting Commissioner Deborah Taylor Tate specifically noted that
by handicapping network administrators, the FCC is making it much
harder to limit unlawful content and online child pornography. Dissenting
Commissioner Robert McDowell warned that network administrators
now have no clear guidance on what management techniques are allowed,
because there are no rules, and yet there is a substantial risk
of enforcement actions.
Third, the Order is a dramatic departure from the national policy
of fueling Internet development by keeping it free of government
regulation. By statute, Congress has declared it to be U.S. national
policy to keep the Internet “unfettered by Federal or State
regulation.” In 2005, the FCC adopted “principles”
of Internet openness, which included the right of consumers to access
lawful Internet content, and to run applications and to use services
of their choice. But the FCC announced that these principles were
not rules, and specifically found that they “are subject to
reasonable network management.” In today’s announcement,
the Commission could not find a solid basis in existing rules or
in any express statute to regulate the Internet, and took the highly
unusual path of inferring regulatory authority from prefatory provisions
of Title I of the Communications Act that have historically been
used only to support other, express grants of authority to the Commission.
Fourth, the precedent of this Order should be quite troubling.
NTIA, the communications arm of the White House, has expressed its
serious concern over the FCC regulating in an area intended to be
free of regulation. A Republican House leader wrote to protest “heavy-handed”
regulation of the Internet. Commissioner McDowell wrote in an op-ed
earlier this week that “engineers, not politicians or bureaucrats,
should solve engineering problems.” He pointed to the settlement
Comcast had already reached with BitTorrent and the ongoing work
to update network management and develop responsible P2P practices
through engineering forums such as IETF. In a lengthy and detailed
dissent, Commissioner McDowell specifically took the FCC to task
for politicizing what should be accomplished through thoughtful
and evolving engineering decisions. He noted that despite claims
in the Order, the FCC did not actually investigate the factual allegations,
and rushed through a supposed enforcement order without underlying
rules and without following the quasi-judicial procedures that should
govern such decisions. An editorial by The Wall Street Journal
perfectly captured the larger risks with government control of the
Internet: “the bigger concern is that the chairman is taking
a huge step toward putting in place a regulatory regime that would
give the FCC, rather than Internet service providers, unprecedented
control over how consumers use the Web. … It’s not the
private sector they should be worried about. There’s no evidence
that Comcast was trying to suppress a political view or favor one
of its own services. … Giving the government more say in network
management, by contrast, introduces all kinds of potential for political
mischief. Net neutrality is a slippery slope toward interventions
of all kinds—not merely over access but ultimately over content.”
This Order is by no means the beginning or the end of disagreements
over the extent of appropriate Internet regulation or network management.
Issues such as FCC jurisdiction, proceeding by rule or adjudication,
and fact finding without evidentiary protections will remain in
the mix in further proceedings.
For further information, please contact:
This
advisory is a publication of the Communications Group of Davis Wright
Tremaine LLP. Our purpose in publishing this advisory is to inform
our clients and friends of recent developments in the communications
industry. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may be given only in
response to inquiries regarding particular situations. Attorney
Advertising. Prior results do not guarantee a similar outcome. Thank
you.
Copyright © 2008, Davis Wright Tremaine LLP.
return to bulletins main page
|
