McDowell on Net Neutrality: Comcast is a Duck, So It Must Burn

By August 12, 2008Communications, Innovation

The Heritage Foundation hosted FCC Commissioner Robert McDowell today at the weekly Blogger’s Luncheon, ostensibly to apologize for the FCC rapping Comcast on the knuckles, all in the name of Net Neutrality. Commissioner Deborah Taylor Tate joined Commissioner McDowell in voting against the majority in demonizing Comcast, as they saw that there was no evidence that Comcast actually did anything wrong. For those of you who have better things to do on a summer day than pay attention to the FCC, here’s a quick and dirty recap of the issue: Comcast network managers spotted a huge spike in bandwidth during a period of peak Internet usage, tracing it to kids downloading hundreds of megabytes of movies and music from BitTorrent, a media downloading site. Acting as traffic cops, Comcast decided to slow down the flow of bits from BitTorrent in favor of traffic from other applications and sites that are more dependant upon the speedy flow of bits, such as VoIP.

In the words of Net Neutrality pundits, they’ve committed the sin of Internet Discrimination. It would seem as if the FCC agrees as well. In a series of public hearings a la traveling road show, Comcast was held up for the masses to pelt them with rocks and garbage while yelling “burn the witch.” In a turn worthy of John Cleese and Eric Idle, the FCC on August 1 decided to do just that, and ordered Comcast to stop impeding traffic on the Internet and make transparent their policies to their customers, lest they be whacked with fines. Okay, maybe it wasn’t a burning per se, more like an uncomfortable stay in the sauna, but the intent was there.

But what did Comcast do to deserve this punishment? They violated the FCC’s Broadband Policy Principles. Let me reiterate the last part: PRINCIPLES. Not laws, not regulations, not rules, but principles (See ‘em here). They were developed with no public hearing, no notice of rule making, no due process. Legally speaking, they’re most likely unenforceable. The sad part is that Chairman Martin yelled “witch,” too.

But Comcast sinned, did they not? Phooey. In reality, they’ve practiced the virtue of Responsible Network Management. In their role as a traffic cop on their stretch of the Information Superhighway, they saw a bandwidth hog that would’ve backed up rush-hour traffic and they took it out of the HOV lane.

Commissioner McDowell said that this will be very easy for Comcast to appeal, as the FCC has no rules in place for this, thus no authority to enforce anything. Citing the “Brand X” Supreme Court Decision (stating that cable Internet companies provide “information services” governed by Title I of the Communications Act and are not “telecommunications services” under Title II), the cable companies are under no obligation to treat all traffic equally. That’s the law.

Talk to anyone who knows anything about network management and they’ll tell you that the Internet is ALL ABOUT discrimination – choosing which packet needs priority over another. For instance, it’s more important that VoIP packets get priority over a packet with part of the best sports clip ever filmed because a VoIP call requires complete synchronicity lest confusion, echoing and dead silence ruin the call. If my sport clip packet is delayed because of your VoIP packet got priority, the clip may download in 12 seconds instead of 10. That’s something I can live with.

But what if this is some kind of nefarious plot from Comcast to slow down the Internet sites that compete with them? Commissioner McDowell says to check out the Sherman Antitrust Act and the Clayton Act as your remedy. Tried and tested, it’s been around since 1890 and is reasonably sure to have the most evil of corporate malfeasors quaking in their Bruno Magli wingtips as soon as they see the summons.

Maybe in the end, the Comcast decision will be a good thing – if upheld, it’ll show Congress that the process works and the FCC is protecting the interests of the Internet consumer, and there’s no need for intrusive legislation. I suggested this to Commissioner McDowell, and he told me in so many words to go and click my ruby heels together (in a polite way, of course). “Appeasement doesn’t work,” were his exact words. Ah, well.

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