Court Unfriendly To FCC's Internet Slap At Comcast

Several sources are reporting that federal judges have been harsh in their examination of the FCC's action against Comcast in 2008 for the throttling of Internet traffic from high-bandwidth file-sharing services. "'You can't get an unbridled, roving commission to go about doing good,' said US Court of Appeals for the District of Columbia Circuit Chief Judge David Sentelle during an oral argument. The three-judge panel grilled FCC General Counsel Austin Schlick on the parts of communications law it could cite to justify the Comcast punishment. The FCC argues that it was enforcing an open Internet policy implicit in the law. Judge A. Raymond Randolph repeatedly said the legal provisions cited by the FCC were mere policy statements that by themselves can't justify the commission's action. 'You have yet to identify a specific statute,' he said. The judges' decision in the case could throw into question the FCC's authority to impose open Internet rules."

Comments

Just Pass a Law

[jimbolauski]

So all that needs to happen is a law must be passed. I can't wait to see how many pages it will take to say NO THROTTLING!

Re:Just Pass a Law

[FlightTest]

After all the unrelated pork-barrel is added? Thousands of pages, I'm sure.

Re:Just Pass a Law

[DoofusOfDeath]

I can't wait to see how many pages it will take to say NO THROTTLING!

I'm curious too. Let me go ask the lobbyists who draft our legislation.

Re:Just Pass a Law

[maxume]

What if I want to pay for a 'lazy' broadband package, where I agree to be throttled when the network is loaded, in exchange for better throughput when things are less busy?

Re:Just Pass a Law

[TheReverandND]

What Comcast did isn't throttling. They engaged in willful packet tampering, by replacing seed packets with reset packets, and that IS already illegal.

Re:Just Pass a Law

[NickFortune]

What if I want to pay for a 'lazy' broadband package, where I agree to be throttled when the network is loaded, in exchange for better throughput when things are less busy?

Cool. What were you going to do if you wanted a package where your packets don't get throttled by third party providers with whom you have no direct financial agreement relationship?

Re:Just Pass a Law

[MobyDisk]

Well, as long as they are throttling all their customers (at a particular service tier) in the same manner, I wouldn't be real worried about it.

Which certainly would not be the case. And even if it were, it doesn't take into account ISP C.

You paid ISP A to not throttle. The website/peer paid ISP B not to throttle. But ISP C thinks your content violates their rules, so they throttle it. So you both paid to get nothing, and your ISPs can't do anything about it.

Re:Just Pass a Law

[HeckRuler]

Well, you could have a second ISP/account for that. It is a worry that once the preferred packed for ISPs becomes tiered, non-neutral, or otherwise funky that the telcom companies would offer only a minor discount for low quality connections and bend you over and rape you for high-quality connections similar to the "standard" internet service we have now. And if the pricing structure for text messeging is any example, then I wouldn't trust the telcom companies with any power at all. In a perfect world, charging different rates for different quality isn't a bad thing, but the culteral setup of those in power makes this a terrifying prospect.

But ideally, I'd like 3 different accounts:
1. Cheap-ass, slow, flaky, interpretable, but uncapped connection for my casual downloading. Stuff I set up and let run overnight. Pay scales per gig over a set period of time.
2. Quick response, high priority, no dropped packets, with a bandwidth of... whatever I need at the time for gaming and voip. Paid per byte per level of bandwidth. And I limited to X bytes every minute.
3. High bandwidth, intermittent connection for burst communications. ie, web-browsing. I don't want the connection all that often, but when I ask for it I want it all right now.

But as I said, this is an ideal scenario where we accurately pay for what we need. But this model wouldn't encourage telcom companies to lay down more lines. It would encourage them to limit supply so people pay extra.

I would like some sort of quality metrics and contractual agreements instead of the vuage promise to get something between 0Mps and 5Mos I have now.
But I understand your original message that Comcast throttled ALL P2P connections over their lines regardless of who paid for what and so all of this entirely beside the point.

No Suprise here

[Anonymous Coward]

Both Judges have a history of defending big buisness. This comes as no suprise that they would rule in favor of corporate interest.

Re:No Suprise here

[calmofthestorm]

Well, depends on the corporate. Media companies love neutrality because then they don't have to pay ISPs to get full speed. ISPs hate it becuase they don't want to be dumb content providers, and want more money.

Consumer interest is pretty obviously on the neutrality side*, but there are corporate interests on both sides. Think Google.

* The real solution is actual competition on the part of ISPs but that'll be a cold day in Hell before it happens in the US.

Re:No Suprise here

[dkleinsc]

Actually, the real real solution is probably a publicly owned utility handling telecom and ISP, because publicly owned utilities have a history of giving better prices and service than their private counterparts for doing similar jobs.

Yes, there are corporate interests on the side of Net Neutrality, but they probably aren't media companies, for a couple of key reasons:
1. A lot of media companies have business ties to ISPs. Time Warner in particular is guilty of this.
2. If they pay the extra to ISPs, they gain an advantage over any upstart competitors. It produces a significant barrier to entry for, say, a successful blogger or independent news site.

Re:No Suprise here

[Anonymous Psychopath]

Both Judges have a history of defending big buisness. This comes as no suprise that they would rule in favor of corporate interest.

Actually, they are ruling in the favor of law. Just because you happen to agree with the FCC doesn't make what they did right.

Imagine the FCC thought throttling was fine, and created policies that punished content providers who didn't properly mark their high-bandwidth traffic. You'd be begging the court for relief for this exact same decision instead of calling them corporate shills.

Even though throttling is bad, the FCC making up their own rules as they go along is worse.

Re:No Suprise here

[spun]

Nice anecdote. Perhaps it's even true. But the vast majority of publicly owned utilities do in fact provide better service at lower rates. Look at the TVA. Look at what happened in South America when water was privatized.

In general, privatization only works when there is a robust and competitive market. In the case of public utilities, they are a natural monopoly, and therefore, a competitive market is impossible. Cooperatives and other forms of public ownership are the most efficient way to run any form of natural monopoly.

There's a lesson here

[JoshuaZ]

Just because something is good policy doesn't mean a given implementation of it is legal. This is the reverse of the common rule that stupid laws aren't necessarily unconstitutional. The solution here is to get Congress to pass explicit net neutrality legislation. Unfortunately, the last such attempt died a gooey death.

Re:There's a lesson here

[Attila Dimedici]

if there is no precedent regarding a policy, it is not only legal tradition but global practice to rule in favor of public interest.

this is what precisely those fscking judges should have done. they have not. their approach little different than parroting corporate interests' statements.

In the U.S., if there is no law authorizing the Administration (the FCC is part of the Administration) to take an action, it is illegal for the Administration to take said action.

It's time for a proper neutrality law

[Adrian Lopez]

A proper net neutrality law is long overdue. I don't want ISPs to ever be allowed to block any content, cripple any protocols, or artificially slow down any kind of traffic beyond whatever is necessary to ensure reliable service for all customers alike. A ruling against the FCC on its own ruling against Comcast would cause significant injury to US broadband users, and that's why we need some kind of legislation outside of FCC rules that will ensure ISPs such as Comcast can't cripple customers' connections. Pro-corporate judges then won't have a leg to stand on.

The FCC should ask the EPA how they do it

[Coolhand2120]

So the FCC can't rule by fiat? They should ask the EPA how they get to rule by fiat! Only seems fair.

Forgery perhaps

[ArhcAngel]

If I understand this correctly what the judge is asking is what law did Comcast break in their actions. If I understand what Comcast was eventually charged with by the FCC wouldn't forgery or impersonating an officer or hijacking all be possible crimes committed? Comcast basically took a packet coming from a sender and hijacked it, injected it with the reset command (forgery), and sent the packet on it's way to the recipient (impersonating a packet from sender which could be looked at like a mail carrier or "officer" of the post office).

Re:roving commissions of do-gooders

[kevinNCSU]

Because who defines 'good'? Giving a branch of government unbridled power to do 'good' one day gives them that same unbridled power to do something you vehemently oppose the next, and now they would have the legal precedent to do so.

You can't have a short term view of the law as a judge, and while it might not make them popular in the short run I'd rather our freedom be protected by forcing us to have our elected representatives pass a law for something we want (their entire job), rather then give a branch of our government unbridled power because they happen to be acting in our favor today.

Think about this, the FCC decided on their policy with little to no input from the citizens, and little to no recourse from the citizens. You can't vote FCC workers out of office. What would your view of the legality of what they just did be if they had come down on the completely other side of the issue and were punishing companies that didn't throttle p2p networks in the name of stopping piracy for 'public interest' but had no written law mandated or approved by our representatives to tell them or give them the power to do so?

You can't judge legality of a government organization's actions based on whether you think what they are doing is good, you judge legality based on whether they have the legal right to acting in the way they are according to the constitutions and laws set forth by congress.

It depends on the amount of local control

[copponex]

The reason corporations are a terrible idea for basic services is because of two issues: incentive and accountability.

When a corporation owns a basic service, the question is, "How much is the customer willing to pay?" The question when run by a local (meaning, city or county) government is, "How much does it cost to provide?" The incentive for a corporation is always to make the most amount of money possible. If there were no regulation or public utilities, America would look like South America, where a company can make a good profit providing services to the rich, and ignore everyone else. This leads to widespread poverty and income inequality, since you can't do any self-investment when most of your day is spent lugging water or kerosene or wood around for cooking, cleaning, etc.

The second question is of accountability. Corporations simply don't have to have any accountability towards individual customers. Sure, you can sue a company - if you happen to also employ dozens of lawyers and have a few million stashed away, you may have a fighting chance. When a very local entity is running the show, chances are you know the person in charge. They aren't hundreds or thousands of miles away in the top floor of some high security skyscraper - they're downtown, and you know some of the people who know them.

This method breaks down in large metropolitan areas if they aren't further divided into neighborhood councils. They work best when the board members running the utility can be voted out directly by the local populace.

The decision on what is and what is not a utility is an important one. Competition gives us good results in luxuries and commodities, since there are so many customers, and getting screwed on a dozen eggs or a TV isn't the end of the world. However, when the customers have no other options, and it's too expensive to duplicate services, locally controlled organizations are a great option. Better to make the internet a utility with 100% saturation - just like roads and electricity - and allow competitors to provide services over that platform.

PS All your privacy concerns are moot when the NSA is building NOCs inside of corporate datacenters already.

Re:It depends on the amount of local control

[copponex]

I can cite dozens of studies for either side, but most are older and not publicly available - just summarized in reports. Or you could order copies of the Journal of Regulatory Economics if you're really into it, and read such fascinating works as "24/7 Hourly Response to Electricity Real-Time Pricing with up to Eight Summers of Experience," which is actually not bad, and shows how realtime pricing information affects electricity usage in a positive way for conservation and usage. Then the author is labeled a socialist or a nazi, organizational bias is claimed, and everyone slings mud until no one can see.

The larger point to get across is that you need to start from scratch when considering the philosophical implications of something as major as the next communication platform, and also be mindful of real world examples.

Business isn't bad at everything. It's just poorly suited to provide necessary services. This is why democratic governance exists - it' supposed to be an entity based on the will of the populace based on the merit and moral nature of their arguments, not on the size of their wallets. It's why the legal system isn't (well, supposed to be) based on class or birth. It fails to be perfect, but you'll notice that the closer a government is to these ideals, the better the society is in general. Once you get close to the line of basing access to basic needs on dollars alone, you are stating that a human's only value is monetary.

Re:Except for the takings clause of the Constituti

[hairyfeet]

Uhhh...dude? I hate to break the news to you, but We, The People actually paid for those networks to the tune of 200 Billion (with a B) + in tax breaks and other incentives, and all we got in return was a fart in our general direction. Look up the telecommunications act of 1996 if you want to read the whole bill, but we gave over 200 billion in breaks and payouts for 45Mb nationwide broadband. What we got was the finger.