Net access in the wake of FCC vs. Comcast

The public may have won Round 1, but network providers will soon change the rules of the game

The FCC ruling [PDF] announced over the weekend opens up an interesting debate over the evolution of Web access going forward.

Following complaints from Free Press and Public Knowledge made last October, the FCC investigated the charge that Comcast interfered with "Internet users' right to access the lawful Internet content and to use the applications of their choice," according to the FCC statement released with the ruling.

Basically, after investigating the complaints, the FCC was satisfied that Comcast was blocking and/or slowing down access to peer-to-peer connections and the applications that were used to facilitate them. In particular, the broadband provider was discriminating against BitTorrent, a Web-based file-sharing application that allows users to share video and music files.

Network management vs. censorship

Those who disagree with the ruling [PDF] say that Comcast was only trying to manage its network. BitTorrent users were using up an inordinate amount of bandwidth, the argument goes, and it was the company's right to regulate or manage that in order to be fair to all of its customers.

On the other side are those who say that "managing" Web traffic in this manner is tantamount to censorship. What right has a network provider to target certain applications and its users, asked FCC Chairman Kevin Martin?

Martin said in a personal statement [PDF] following the ruling, "would you be OK with the post office opening your mail, deciding they didn't want to bother delivering it, and hiding that fact by sending it back to you stamped 'address unknown -- return to sender'?"

Further on in his statement, Martin also compares Comcast's actions to the post office claiming its delivery truck was full so it needed to open the mail to determine how important it was before delivering it.

Certainly Comcast will appeal the ruling. But regardless of the outcome of that appeal, network providers such as Comcast will likely turn to one of two models to manage their networks: metered access or QoS (quality of service).

Network providers' next steps

Metered access would give network providers the capability to charge more if you use more. But there are caveats to this approach to "managing" Net traffic.

Let's say you are a BitTorrent user, for example. With metered access in place, Comcast would be able to show that it costs the company more to serve you than it does other customers. But at a certain point such charges could be perceived as discriminatory in nature. A user could bring suit against a network provider that has imposed metered access, saying that the real purpose of the additional fees is to prevent access to specific sites.

Another possible outcome of the ruling akin to metered service is QoS. This model would create service tiers from which customers could choose.

Let's say I am a heavy BitTorrent user. With QoS in place, I could pay more to ensure I get top-of-the-line, high-performance access to the sites I want. But if I am an occasional e-commerce shopper, I might be content to pay less for slower -- of course, it will be called "basic," not "slower" -- service.

According to the ruling, FCC commissioners found that Comcast's activities amounted to more than just managing its network. The FCC said that the company's actions were in fact targeting a company that Comcast believed was infringing on its bottom line:

"Our investigation, and the findings of several widely respected engineers, confirmed the complaints. Comcast was delaying subscribers' downloads and blocking uploads. It was doing so 24/7, regardless of the amount of congestion on the network or how small the file might be. Even worse, Comcast was hiding the fact by making effected uses think there as a problem with their Internet connection or the application."

Furthermore, the FCC said it was satisfied that Comcast did not block customers who were using "an extraordinary amount of bandwidth even during peak network congestion" if they were not using a "disfavored" application.

So, you could say Comcast made it far easier for the FCC to rule as it did. However, the bigger question remains, At what point can network providers legitimately claim they need to manage their network and decide how best to do that?

As a result of this week's ruling, Comcast said it will migrate by the end of 2008 to a capacity management architecture that is "protocol-agnostic."

Once again, I think what we will see is what we always see. Nothing black and white, only shades of gray. And thanks to organizations like Free Press and Public Knowledge, no one gets free reign forever. Checks and balances do work.

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