We FCC You: The Future of Internet Regulation

Barbershop quartet music helped defeat Comcast in court.

At least, that’s how the case unfolded for Robb Topolski, a network engineer from Portland, Oregon. In the summer of 2007, it was Topolski’s failed attempts to send public domain barbershop music to his friends that helped prove Comcast was secretly slowing down its subscribers’ Web connections whenever they used file-sharing programs.

“I posted my findings on [a tech message board], and it kind of sat there for a couple months,” Topolski said. “When that story hit, it exploded. Reading it were people from [net advocacy organizations], and they contacted me.”

By November of that year, Topolski and a coalition of interest groups and lawyers officially petitioned Comcast’s conduct before the Federal Communications Commission, which has some jurisdiction over the Internet. And in August, by a vote of 3-2, the FCC, prompted by Topolski and his fellow subscribers, stopped Comcast from slowing their file transfers – and, in the process, reignited the war over “net neutrality,” the principle that users should have unfettered access to the Web, regardless of service or provider."
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The political debate over net neutrality, however, is more nuanced than that. On one hand, Web absolutists argue that free choice is the unique appeal of the Internet. Net neutrality's most vocal defenders, including such non-profit advocacy groups as Free Press and Public Knowledge, scoff at any network or business practice that impedes audience access to information.

“Comcast was dishonest to the public, to the FCC,” said Marvin Ammori, the lawyer at Free Press who authored the November 2007 complaint against Comcast. “[Its undisclosed policies] harm economic growth and competition, and companies that violate it should be punished.”

But Internet service providers counter that the net neutrality movement is merely a solution without a problem. Slowing down Topolski and other “bandwidth hogs” benefited the majority of Comcast’s customers, who may have experienced slower connection speeds because of other users’ rampant downloads, said Paul Glist, a telecommunications lawyer who represents cable companies. What Comcast did, he added, thus has very little to do with censoring content or impeding user access.

“If I built this infrastructure and one particular type of use is taking up a high percent of my capacity, and other browsers cannot get service as fast and as well as they normally could, I should control it,” Glist said. "This is called network management.” Glist acknowledged, however, that Comcast should have been more open about its policies.

Although Comcast would not comment on the case, a spokeswoman from the company reiterated that the Internet service providers complied with the “cease-and-desist” order the FCC issued with its vote in September. In response, Comcast also filed an appeal in U.S. District Court challenging the FCC’s authority to decide net neutrality cases in the future. The appeal is still in its beginning stage; neither litigant has presented its side.

Who oversees the Web?

Comcast’s federal appeal raises one important question: Who, exactly, has jurisdiction over the Internet?

According to Ammori, it is the FCC. The Free Press lawyer cites the commission’s 2005 “Internet Policy Statement,” which explicitly prohibits Internet service providers, Comcast included, from breaching net neutrality for the purpose of policing their networks. Both Free Press’s legal complaint and the FCC’s majority opinion mention the document multiple times.

To the telecommunications industry, however, jurisdiction is less obvious, said Steve Effros, a communications consultant and former head of the Cable Telecommunications Association, a trade organization that represents cable companies. Although Comcast should have warned its subscribers about its policy in advance, its misconduct does not empower the FCC to act where it has no authority, he said.

At issue is a technicality in the 1934 Telecommunications Act that governs the FCC. Countless amendments to the law have enshrined two categories of providers: common carriers, such as radio, and information services, such as cable Internet. The FCC has explicit authority over the first classification.

But Comcast says it is part of the latter group, which could instead fall under Federal Trade Commission’s purview. And the FTC, according to its own 2007 report on net neutrality, strongly disagrees with any government regulation of the Internet.

“Did the FCC overstep its bounds? Yes. Did it violate its own procedures? Yes,” Effros said. “Comcast’s court appeal has much more to do with that than it has to do with net neutrality. It is going to be dealt with in Congress next session, and I don’t know where it’s going to end up.”

One bill, first introduced in 2007 by Sens. Byron Dorgan, D-N.D., and Olympia Snowe, R-Me., would prohibit Internet service providers from obstructing Web users from accessing Web pages or programs for any reason.

Although the 2007 version of the bill never emerged from committee, Dorgan told reporters in November he hoped to re-introduce the legislation in January 2009, not long after President-elect Barack Obama, who supports net neutrality, takes office. Free Press also backs the bill, said Topolski, who now works for the advocacy group as a technology consultant.

The telecommunications industry, however, already plans to protest the proposed legislation, Glist said. Their rationale is mostly economic; Internet service providers have breached the subject of net neutrality because developers, including Bit Torrent, consume a large portion of their resources and pay absolutely nothing to use that infrastructure, he said.

Effros likens the problem to an interstate superhighway: If a truck takes up five lanes of a five-lane throughway, the government should penalize the truck for congesting the roads. Internet service providers, he said, have faced a similar conundrum: Providers lose money every time they must upgrade their hardware and software to prevent traffic jams caused by content-hungry users, and the proposed net neutrality laws fail to address those economic concerns, he said.

Yet, there is one possible compromise, Effros added. If legislators created a net neutrality law similar to current anti-trust rules, which decide breaches on a case-by-case basis, both sides of the issue might finally agree.

But regulating too little or too late, Topolski warned, would only exacerbate the problem.

“The people who are providing Internet services ought to comply with the standards that define what the Internet is,” Topolski said. “The World Wide Web community doesn’t have an enforcement arm, so we depend on the businesses to act right.”

While you’re waiting…

Anticipating a federal response, Internet service providers have taken matters into their own hands, Topolski said. Comcast and AT&T, for example, have introduced “bandwidth caps” – limits on how much content users are able to access in a given pay period, he said.

“One of the complaints that has been made separate of the [slowdowns] was that at some level of activity, and no one knew at what level that was, Comcast customers were getting a phone call or an angry letter because they were using too much bandwidth,” he said. “And no one could answer how much they had used or how much they could cut back.”

In August 2008, Florida’s attorney general figured it out, and a settlement between the state and Comcast resulted in the I.S.P’s newest national network policy: a content-neutral 250-gigabyte limit on monthly Internet activity, which Comcast officially introduced in October.

According to Glist, the bandwidth caps, if implemented properly, are acceptable solutions to Internet service providers' traffic, resource and economic dilemmas. Two hundred-fifty gigabytes, he said, is a very high ceiling, one that most Americans will never exceed. In fact, the Associated Press has already done the math: 250 GB equals more than 50,000 downloaded songs or more than 50 million e-mails.

“If you have an all-you-can-eat buffet, then there’s no incentive for an individual diner to limit how much they take,” Glist said. “For the Web, you want to create some pricing signal in the market, even if it’s at a very high level, to signify to people that there is some limit.”

Topolski, however, disagrees with that philosophy. While the caps are unrelated to Comcast’s previous network management strategy, he said it mostly has the same effect – it breaches net neutrality and prevents users, including himself, from accessing Web pages, programs, videos or songs.

“Wouldn’t users’ knowledge that their service is limited … tend to reduce their usage?” he asked. “The answer to that is ‘absolutely yes.’ It speaks to future innovation… We have to be careful that capped bandwidth doesn’t put a cap on our future.”