Archive for the ‘net neutrality’ tag
FCC and the Internet: Edit->Undo?
The D.C. Circuit Court of Appeals recently held that the FCC was not authorized to prohibit Comcast from interfering with P2P networking applications, erecting what appears to be a large roadblock on the FCC’s path to net neutrality. The court held that the FCC’s ancillary authority under Section 4(i) of the Communications Act of 1934 did not extend it sufficient power to regulate broadband services absent explicit statutory goals.
The FCC had largely tied its own hands in the case: its designation of broadband as an ‘information service’ under the Bush administration was granted Chevron deference by the Supreme Court in the 2005 Brand X case, leaving it unregulated in an effort to promote investment. The agency simply adopted four principles of net freedom that they expected broadband companies to abide by and went home for dinner. However, with competition in broadband access arguably dwindling rather than burgeoning, public interest groups like the Open Internet Coalition are seeking increased regulation to protect consumer choice, and the FCC wants to lead the way.
As it turns out, the Comcast ruling may not be the big obstacle it first appears to be. The Brand X majority openly accepted the FCC interpretation over the Ninth Circuit’s version, stating that only judicial precedent holding a statute unambiguous can displace agency construction. In a dissent, Justice Scalia argued that the Court was ceding far too much by allowing the FCC to define ambiguous statutory terms and then flip its definition to suit its fancy in future disputes, a fear the majority seemingly shrugged off. Here is a hypothetical presented by Justice Scalia in his Brand X dissent:
Imagine the following sequence of events: FCC action is challenged as ultra vires under the governing statute; the litigation reaches all the way to the Supreme Court of the United States. The Solicitor General sets forth the FCC’s official position (approved by the Commission) regarding interpretation of the statute. Applying Mead, however, the Court denies the agency position Chevron deference, finds that the best interpretation of the statute contradicts the agency’s position, and holds the challenged agency action unlawful. The agency promptly conducts a rulemaking, and adopts a rule that comports with its earlier position–in effect disagreeing with the Supreme Court concerning the best interpretation of the statute. According to today’s opinion, the agency is thereupon free to take the action that the Supreme Court found unlawful. 545 U.S. 967, 1016.
The FCC would appear, at least from Justice Scalia’s viewpoint, to have a semantic out. Michigan Law Professor Susan Crawford argues that the agency should simply relabel high-speed internet services as ‘telecommunications services’, which are subject to regulation under Title II of the Communications Act. Simple enough, no? Not according to one blogger, who analyzes the proposed methodology and concludes that it would open a Pandora’s Box. In fact, Crawford herself recognized difficulty with this strategy in a 2006 article for Berkeley Tech Law Journal:
Congress should act to cabin and explicate the scope of the Commission’s authority to regulate the internet. The difficult and important question of how to govern the internet should be answered explicitly rather than through formalistic re-characterization of internet services by an independent agency. 21 Berkeley Tech. L.J. 873, 931.
In contradicting her recent Op-Ed piece, she highlights an alternative route the FCC can take: ask Congress to redevelop FCC authority and provide more logical regulatory boundaries in light of the dramatic advances in communications technology over the past several decades. Congressional action would add legitimacy to the process and allow for the formation of a structural foundation that represents the importance of internet functionality in the modern age. In the meantime, the National Broadband Plan is moving forward and the FCC plans to launch more than 60 proceedings within the year, authorized or otherwise.
The Impact of Comcast’s BitTorrent Policy on Network Neutrality
by: Brian Pascal (bhpascal [at] umich [dot] edu), Associate Editor, MTTLR
This incongruous situation, absurd in the real world, is all too real on the Internet. A few weeks ago, the Associated Press discovered that Comcast is playing the role of station attendant, targeting a specific type of internet traffic and delaying its delivery.1 The type of traffic targeted is that which is mediated by the BitTorrent protocol, a method originally designed for the efficient distribution of large files via the Internet while simultaneously distributing the costs of bandwidth and hosting among a multitude of users.2 While there exist numerous legitimate uses for BitTorrent, and while it was not specifically created to assist in copyright infringement, the very capabilities that make BitTorrent a powerful tool for creating a robust, self-sustaining network for the distribution of legitimate large files also make it widely used to enable copyright infringement, allowing for the rapid distribution of movies, television shows, and music. For these reasons, legal and illegal BitTorrent traffic accounts for a large percentage of the overall traffic on the Internet (though specific usage data has proven difficult to measure). 3
When the Associated Press published their findings, Comcast’s initial response was to flatly deny the allegations, stating that “Comcast does not block access to any applications, including BitTorrent.”4 Several days later, however, Comcast admitted that it was, in fact, delaying BitTorrent traffic, stating that “[d]uring periods of heavy peer-to-peer congestion, which can degrade the experience for all customers, we use several network management technologies that, when necessary, enable us to delay — not block — some peer-to-peer traffic. However, the peer-to-peer transaction will eventually be completed as requested.”5
This type of action, that of altering the flow of Internet traffic based on content, is merely the latest chapter in the ongoing debate over network neutrality. Tim Wu, a leading scholar in the field, states that “network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally.”6 Comcast’s delaying of BitTorrent traffic is a clear deviation from that ideal, especially considering that it does not even specifically target the illicit uses of BitTorrent, but rather the protocol as a whole. Further, the means by which Comcast accomplishes this is by “impersonating” one of the users connected to the network, sending a signal that is interpreted as a request to stop transmission by TCP/IP, internet communication protocol.7
While there are strong normative and economic arguments to be made in favor of network neutrality,8 there is another theory, less often raised, that may serve to answer many of these questions under a legal framework — the doctrine of common carriage. The idea of a “common carrier” dates back to the common law of the 1800’s (or perhaps earlier). Generally, “common carriers were 1) required to serve upon reasonable demand, any and all who sought out their services; 2) held to a high standard of care for the property entrusted to them; and 3) limited to incidental damages for breach of duty.”9 This was not limited strictly to railroad services and shipping conglomerates. “In 1901, following many state courts, the U.S. Supreme Court held that at common law — i.e., even without a specific statute — a telegraph company is a common carrier and owes a duty of non-discrimination.”10 This commonlaw theory was instantiated in the United States Code, requiring communications carriers “to interconnect directly or indirectly with the facilities and equipment of other telecommunications carriers,”11 and, moreover, to “ensure the ability of users and information providers to seamlessly and transparently transmit and receive information between and across telecommunications networks.”12
Read broadly, it seems that ISPs should be included in the set of telecommunications carriers regulated by these laws, and, moreover, to stand as a Congressional mandate of network neutrality; however, they are, generally speaking, not applied to internet connectivity.13 Further, current ISPs rely upon a host of economic and non-economic arguments to promote “network diversity,” arguing, for example, that the ideal of network neutrality is dependent upon a myth of “infinite bandwidth,” and that the application of a truly content-agnostic network is inefficient in practice.14 Additionally, since the ISPs claim ownership over their own networks, they argue that it is fully within their rights to regulate and optimize their available bandwidth as they see fit.15 Comcast’s recent throttling of BitTorrent connections is in keeping with this side of the argument. Given the economic concerns of of providing the best possible experience to its users, coupled with the very real fact that BitTorrent is responsible for a large percentage of its available bandwidth, Comcast made the decision to sacrifice the optimistic ideal of neutral network upon the altar of perceived practicality.
The debate over network neutrality is far from finished. Between the widespread, mainstream coverage of Comcast’s shaping of their network, and Barack Obama’s announcement of his intention to fight for network neutrality,16 the conversation has never been more prominent nor more relevant.
But conversations depend upon open channels of communication. Instead of fostering free and open communication, ISPs appear to hope for a return to the more centralized broadcast model, in which content providers are the main source and users are little more than passive receivers.17 In so doing, those in favor of network diversity short-circuit the very ideals originally embodied in the law of common carriage, the ideals that should, given the directness of the analogy, live on in modern Internet regulation. The alternative is a future in which speech not supported by big business is at risk for routing through Texas, and that situation, under any other circumstances, has never been allowed to stand.
1 Peter Svensson, Comcast Blocks Some Internet Traffic, Wash. Post, Oct. 19, 2007.
2 See, e.g., Wikipedia, BitTorrent (last visited Nov. 12, 2007).
3 Id.
4 Svensson, supra note 1.
5 Peter Svensson, Comcast Admits Delaying Some Traffic, USA Today, Oct. 23, 2007.
6 Tim Wu, Network Neutrality FAQ (last visited Nov. 12, 2007).
7 See, e.g., Susan Crawford, Comcast is Pretending to be You, Susan Crawford Blog (last visited Nov. 12, 2007).
8 See, e.g., Wu, supra note 6.
9 Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol’y 435. Sec. II (1994).
10 Cybertelecom, Common Carriers, (citing Noam, supra note 9).
11 47 U.S.C. § 251(a)(1) (2000).
12 47 U.S.C. § 256(a)(2) (2000).
13 See Noam, supra note 9.
14 See generally, Christopher S. Yoo, Beyond Network Neutrality, 19 Harv. J. Law & Tech. 2 (2005).
15 Id.
16 Barack Obama – U.S. Senator for Illinois, Network Neutrality, June 8, 2006.
17 Susan Crawford, The Radio and the Internet (working draft).