Intellectual Property Law

FCC and Comcast

By Susan Crawford

We don’t have a draft order to read, as far as I know. (Back-story here; Martin is suggesting that he will persuade two other Commissioners to say that Comcast violated the we-thought-unenforceable 2005 Principles.)

Blair Levin and Rebecca Arbogast suggest that the order will say something about inadequate/misleading information provided to Comcast customers (FTC-like); something about Comcast having the burden of showing that its practices were reasonable; and something about Comcast having failed to meet that burden. They’re also saying that the order won’t deal with the larger questions of prioritization that started the whole NN battle some time ago.

Litigation over the FCC’s jurisdiction to do whatever it does is certain.

Richard Bennett says that

The cable companies have a better feel for the tactical side of the question than the telcos do at the moment, as they?re the ones who?ve been taking the heat. Letting the FCC sanction Comcast will only embolden the neutrality mob, and they?ll damn sure push on to Congress regardless of the outcome in the FCC. So it?s like letting Hitler take Poland - they?re not going to be satisfied ever, so the only way to beat them is to win every battle and kill off their movement.

I’d like to see what the order says. I’m feeling cautious. My core intuition is that regulatory tinkering is insufficient to deal with the problem created by the re-definition of ?information services? by incumbents, courts, and regulators. This is a fundamental problem, this move away from the nondiscrimination principles that shaped communications policy for general-purpose networks for so many years.

In the meantime, though, I’m glad so many people in this country are talking about communications policy. That can only help our new president to exercise real leadership once he has it.

==update - wanted to add Rob Topolski’s comment on the Times blog post - here.  He’s the guy who started off the Comcast story.

Full post as published by Susan Crawford Blog on July 11, 2008 (boomark / email).