The FCC last week made it official, releasing its order finding that Comcast's Internet traffic management system didn't pass muster according to the commission's open access guidelines.
But there's something the FCC didn't do. It didn't fine Comcast, and properly so. That's because the commission reasoned that its guidelines were short on specifics on just what would constitute the “reasonable network management” that the FCC would allow. This kind of reasonable approach has not been the hallmark of commission decision-making lately, but we can only hope it constitutes a permanent attitude change.
Network operators—that is, for simplicity, Internet providers—are now on notice that they cannot target specific applications, like BitTorrent. And they have also been told that however they choose to manage traffic flow, it must be transparent to their customers. That is a step in the right direction.
The broadband industry would like total freedom, but absent that they need regulatory certainty, which the FCC can give them short of adopting strict rules that could discourage investment.
Comcast may take the FCC to court over this decision on a specific point of law. But we think that enforcing open network principles through complaint-resolution is the right approach.
There's little argument that online traffic will have to be managed. Period. Online video, both user- and studio-generated, is exploding and threatening to outstrip networks' ability to handle it. Absent clearer guidance from the FCC, we have a hard time faulting networks like Comcast from trying to figure out how best to stuff all that material into the pipe and keep it flowing freely.
Comcast, the nation's largest cable operator, is hardly blameless in this episode. It could have given customers more notice and taken a less broad-brush approach to management. But this is new territory and given FCC Chairman Kevin Martin's singleminded, almost Ahab-like pursuit of the cable industry for rising rates and bundled programming, pillorying Comcast as the poster-company for network mismanagement must be taken with several shakers of salt.
Comcast has already agreed to adopt a “protocol-agnostic” way of managing traffic, which means that it can't target any particular application like the “swarming” uploads of BitTorrent, a company with which it is also now working cooperatively. Those are steps in the right direction for which Comcast deserves credit, whether or not the impetus was FCC scrutiny.
Network neutrality activists argued last week that there is still a need for a new law mandating network neutrality. We think the FCC has demonstrated just the opposite—that there is a way to deal with the issue, short of setting in stone laws that apply to a technology that changes by the nanosecond. Building a regulatory structure through the precedents of complaint-resolution allows for the regulatory flexibility to adjust to that changing marketplace, and is preferable to legislation that might be irrelevant or out-of-date before it ever hits the law books.