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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.
Copyright
© 2008, Davis Wright Tremaine LLP.
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