| Tuesday May 24th 2016

FCC Declares Comcast’s Filtering Illegal

It’s official, as far as the FCC is concerned, that Comcast’s throttling of peer-to-peer traffic was illegal and in violation of the FCC’s network neutrality principles. The highly expected ruling came down today, with Chairman Kevin Martin crossing the political aisle to join commissioners Copps and Adelstein, serving Comcast with a cease-and-desist order.

Don’t expect it to be the last word, though. The ruling, as it is, is more of a symbolic victory. Comcast will not be fined, but is ordered to stop interfering with subscribers’ access to peer-to-peer networks, something the cable giant already volunteered to do in April when things started getting hot. The ruling requires Comcast to disclose the details of its discriminatory management practices, submit a compliance plan about how it will stop these practices by the end of the year, and disclose the network management practices that will replace the current ones.

And if they don’t? Well, let’s let the current battle go to the courts before we worry about that. In 2006, the Republican Congress five times rejected bills giving the FCC the authority to enforce network neutrality, and a Supreme Court ruling also declared the FCC had no authority to act unless Congress gave the agency that authority. Political opponents on the other side have argued the FCC does indeed have the authority, granted under the Communications Act.

Definite authority is included in the proposed Internet Freedom and Preservation Act, which has yet to pass. Until then, the FCC believes it can indeed punish Comcast and other ISPs for net neutrality violations. So what we have facing is a true test of authority rather than a concrete victory for nondiscrimination.

Commissioner Copps made a curious comment, after the 3-2 vote, acknowledging discrimination wasn’t necessarily illegal, but “unreasonable discrimination” is. Comcast initially denied interfering with p2p traffic and was made a liar by the Associated Press; Comcast then admitted to interfering, but not blocking, only during peak hours. More independent tests showed Comcast was blocking at all times of day, on par with China.

Perhaps that’s what Copps meant by “unreasonable” discrimination. Copps took it one step further, calling for a fifth FCC network neutrality principle regarding non-discrimination, applied to both wireless and wireline services to “prove the FCC is not having a one-night affair with network neutrality.”

In order to get merger approval, AT&T and BellSouth had to commit to the existing four principles, which Martin said then the FCC had no authority to enforce. His sudden reversal on that is, to say the least, interesting, and shows perhaps he embraces the Communications Act as granting the commission the authority it needs.

Martin, though, doesn’t see it as a reversal. Instead, he sees it as in line with how he has always felt. “Indeed, I have consistently opposed calls for legislation or rules to impose network neutrality,” he said. “Like many other policy makers and members of Congress, I have said such legislation or rules are unnecessary, because the Commission already has the tools it needs to punish a bad actor.”

Martin has an eight-year history of boneheadedness, though, and if detractors are right, legislation would be required to give the FCC the proper authority. Today’s ruling comes down, then, as a symbolic measure to show the agency’s willingness to go to bat for network neutrality principles, complicated politics aside. It’s a slap on the wrist to be sure, but it is something network neutrality proponents can sink their passionate teeth into.

Josh Silver, executive director of Free Press, the organization behind SaveTheInternet.com, called the enforcement order a landmark decision and a victory for “everyday people.”

“Defying every ounce of conventional wisdom in Washington, everyday people have taken on a major corporation and won an historic precedent for an open Internet,” he said. “Today’s order makes it clear that there is nothing reasonable about restricting access to online content or technologies. Moving forward, this bellwether case will send a strong signal to cable and phone companies that such violations will not be tolerated.”


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