Policy

A Glass House

12/06/2010 12:01 AM Eastern

Back when Comcast challenged
the Federal Communications Commision’s
BitTorrent decision, some wondered whether
that was a wise move politically or if it would
come back to bite the cable operator.

After all, Comcast soon after changed its network-
management practices and made nice
with BitTorrent.

Obviously, the political and regulatory fallout
from that decision was huge, and after a long
and winding road appears to have culminated
in the FCC chairman’s decision last week to call
for a vote on his proposed codification and expansion
of network neutrality guidelines.

But that is a simplistic view of what is anything
but a simple issue. The fallout is actually
from the way the FCC chose to tackle the issue,
rather than Comcast’s response.

Had Comcast not challenged the FCC’s authority
to make the decision, the questions
about its authority over broadband would not
have somehow gone away of their own accord.
And given President Obama’s campaign pledge
in favor of network neutrality, the commission
would likely have gone down this road anyway,
perhaps even sooner given that the Title I/Title
II debate delayed action while the FCC fi gured
out how to square its plans with the court ruling.

Perhaps Comcast shouldn’t have made a federal
case out of BitTorrent. But with cable critic
and FCC chairman Kevin Martin at the helm at
the time, betting on a “live and let live” broadband
enforcement policy would have been a
risky policy at best.

Where does that leave the cable industry?
Cable and telco operators remain convinced
that there is no problem that needs rescue by
the cavalry charge of FCC action. But given the
alternative of a Title II reclassification and the
openings that could provide for rate regulation,
the chairman’s compromise proposal is a workable
solution.

Taking a case-by-case approach, allowing
for reasonable network management — in that
definition lies the keys to the kingdom — was
enough of a salve to industry.

Insight Communications CEO Michael Willner
said it best: “This is a compromise that gives
nobody everything that they wanted and everybody
something.”

Managing fairness on the World Wide Web
is a terribly delicate balance. Public-interest
groups will push for a tighter defi nition of reasonable
network management and for circumbscribing
specialized services. Cable operators
and telcos will balk if there are too many adjustments.
And several key Republicans have
vowed to oppose this deal.

Finally, the decision may not ever pass muster
in court. FCC offi cials last week said that they
had found a way to get vital protections in place
via ancillary Title I authority.

Free-speech advocates should take heart:
There is already a powerful force at work here
to preserve an open Internet and dissuade
heavy-handed behavior in the hundreds of
billions of subscribers — business and consumer
— watching their providers for just
such an offense.

There’s scant evidence now of blocking or discrimination
in a business that depends on giving
consumers content when and where they
want it. And it’s highly unlikely, given the awareness
of the network-neutrality debate today, that
distributors will risk certain public wrath to unfairly
thwart an Internet competitor.

In the meantime, cable operators will continue
to invest in their evolving business model
and hope that the government can finally send
a clear signal of whether it plans to lead, follow
or get out of the way

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