Monday, December 10, 2007

Net Neutrality, Comcast & the FCC: A Closer Look - By Mehan Jayasuriya

It's been almost two months since Comcast's regulation of BitTorrent traffic was first revealed by the Associated Press, inciting an Internet-wide call to arms for proponents of network neutrality. In case you haven't been following the story, it was revealed that Comcast was "actively interfering" with traffic on its network, using a technique known as packet-forging to disrupt traffic relating to BitTorrent applications — including the Gnutella peer-to-peer sharing client and IBM's Lotus Notes groupware application (used by businesses for sharing calendars, emails and other files). In the weeks since, the EFF has confirmed the AP's initial report, a California man has filed a lawsuit against Comcast and everyone from to the telecom-industry puppet group Hands off the Internet has come forth to demand that the FCC open up an investigation into the cable company's methods (though Hands off the Internet may be simply aiming to keep the digital meddling of a competitor in the headlines). Thus far, the FCC has yet to make an official statement on the matter.

Despite the nature of some of the applications being blocked, Comcast's maneuvers can be seen as a first step toward a so-called "tiered Internet," where certain applications are slowed or blocked while others are prioritized. And as we've previously noted, a tiered Internet will likely spell trouble for musicians, independent labels, entrepreneurs and pretty much anyone else who benefits from the democratization that the Web brings. So what's the solution? Network neutrality legislation, right? Well, unfortunately, it's not quite that simple.

As you may already know, the FCC actually has policies in place (PDF link) that aim to promote openness on the Internet. It remains to be seen, however, whether or not Comcast is in violation of the four principles outlined in the FCC's 2005 Internet policy statement. As Comcast spokesperson Sena Fitzmaurice recently told CNET, "We engage in reasonable network management to provide all of our customers with a good Internet experience, and we do so consistently with FCC policy." Here's what's scary: this may be telling the truth. The FCC's 2005 statement includes an exemption for "reasonable network management," though only the FCC knows whether or not Comcast's actions fall under that banner.

That matter of network management could also cause problems on the legislative side of things. Though there are two net neutrality bills currently being considered in Congress — one in the House and one in the Senate. Both allow for providers to use "reasonable and nondiscriminatory measures" to regulate their networks. Though it's unclear exactly what this means (i.e., whether the provider must refrain from discriminating against the user, the application or both), the judgement call could ultimately be made by an "expert agency" like the FCC.

But just because the FCC launches an investigation, doesn’t mean they’ll demonstrate appropriate follow-through. Earlier this year, the Commission claimed they lacked the capacity to enforce anti-payola rules, despite having issued a consent decree in the aftermath of ex-New York State Attorney General Eliot Spitzer’s probe. Thus, even if net neutrality legislation is passed, depending on how the laws are interpreted, providers could continue to throttle traffic under the guise of network regulation.

If you've been following our Rock the Net campaign, you know that FMC is fully committed to network neutrality and believes that some form of legislation is needed to prevent service providers from creating a tiered Internet. We understand that musicians rely on equal access to the Internet in order to reach new fans and we'd hate to see a level playing field get ruined by a few corporations. If you haven't already signed our Rock the Net petition, be sure to join thousands of artists and fans around the world in doing so. You can also help us spread the word through the official RTN MySpace page.

Mehan Jayasuriya is a technology and music journalist who lives in the Washington D.C. area. Outside of his work for the Future of Music coalition, he also writes for DailyTechRag and local culture blog DCist. You can visit his personal website at

No comments: