Intellectual Property Law

Comcast and the Internet

By Susan Crawford

Today the FCC is condemning Comcast’s practices with respect to P2P transmissions. (See Comcast Is Pretending To Be You, explaining what the company did, and Comcast and Network Management, explaining EFF’s reports.) I’m happy for FreePress and Public Knowledge today, and I know they have achieved a substantial change in the wind. The basic idea that it’s not okay for network access providers to discriminate unreasonably against particular applications is now part of the mainstream communications discourse. That has to be good news.

I’m concerned on a couple of fronts. The FCC has taken the view that it can adjudicate, on a case-by-case basis, issues that have to do with “Federal Internet Policy.” They used that phrase several times, citing 47 USC 230(b) and 706, and pointing out that the Supreme Court in Brand X broadly construed the FCC’s authority when it comes to the internet.

First, Congress has never given the FCC express authority over internet policy. The agency is in completely uncharted waters, using this idea of “ancillary authority” to carry out whatever it feels like. (A first key question from Comcast will be “ancillary to what? The Cable Act doesn’t give you any power to tell us how to run our networks.”)

Although in the short term condemning Comcast is certainly a good idea, the notion that case-by-case, wholly discretionary adjudications like this one are possibly a good idea for all aspects of internet policy is nuts. I’m also betting that Comcast will sue, and win, over the FCC’s lack of authority.

Second, the Commission is making clear that it’s not interested in carrying out any real intervention in what it calls the “broadband market.” Comcast’s obviously deceitful activities may be an easy case (and perhaps a case for the FTC rather than the FCC). But the harder questions about the conditions under which internet access should be available are being brushed aside by this Commission. That’s bad for the future of the internet in this country, and perhaps for lots of other countries too.

We have made non-discriminatory access to general-purpose communications networks part of our law for a hundred years. There are many good reasons for this, ranging from increasing overal social welfare to overcoming collective-action problems; there are innumerable positive spillovers (”externalities”) from these non-discriminatory access rules. Non-discriminatory policies implicate basic freedoms as well as hard-edged economic welfare.

Now we’ve dropped this idea, and the next Commission (and the next Administration) will have to take it up. I hope the Commission’s action today won’t jeopardize this larger goal, which can be achieved by requiring that all internet access providers allow bit-stream-level access over their fiber to competing providers. That’s all - pretty simple - let anyone provide the electronics that light fiber strands.

But the bottom line today is certainly good news.  Huge news.  Very very important news - a substantial win for the idea of an open internet.  Great work!

Full post as published by Susan Crawford Blog on August 01, 2008 (boomark / email).