Over the past year or two, the FCC has made a large issue over Comcast Corp’s throttling and/or blocking of peer to peer traffic is now famous, and has altered the public’s view of broadband forever. The FCC’s position was that the Internet should be a wide open environment, to allow companies to innovate, while Comcast Corp defended their right to ensure reasonable levels of network investment in order to deliver affordable services to consumers. Both sides had their reasons for their arguments, but the FCC’s position is now being investigated by a three-judge panel. All three judges on the panel are current serving members of the U.S. Court of Appeals, and their findings may shape the role of the FCC in regulating Internet service providers. Nothing less than net neutrality may be at stake, which makes this decision critical to countless millions of consumers and businesses.
The Core of the Problem
The core of the problem is that the FCC may have exceeded their mandate to regulate communications. In a packed courtroom, Judge A. Raymond Randolph told FCC General Counsel Austin Schlick that they the FCC had been behaving in a way that is more inline with policies that are “aspirational, not operational” in their quest to make a public example out of Comcast. At the time, Comcast was being indicted in the court of public opinion for blocking or at least throttling Bit Torrent traffic. The argument made by Comcast was that they owned the network and had a right and obligation to manage it in a manner that responsible for the greatest number of consumers, and that there were technical reasons for their decisions regarding the throttling issue.
The review of the landmark FCC decision would seemingly be consistent with Comcast’s argument that the FCC was not necessarily following the letter of the law in regards to their jurisdiction, even though the spirit may have been followed to a point. Companies and individuals are not bound by the spirit of the law, but by the letter of the law, for better or for worse. Therefore, it would seem safe to assume that Comcast believes that the FCC’s actions were inappropriate.
Of course, Comcast has concerns that are far more complex than can be simply described by ‘net neutrality’ or ‘open Internet concepts. These concerns are impossible to gloss over, because some of them are at the very heart of what it means to be a company in a capitalist society.
On the other hand, the FCC is hindered by a Congress that deliberates painfully slowly, a decided problem in a field where days and weeks bring substantial changes. When there is a question of boundaries, the FCC has a choice of either asking a question that might take weeks or months to receive an answer (if any is forthcoming), or to simply live by the axiom that it is easier to beg forgiveness than it is to ask for permission. In this case, the FCC believed that its mission to protect consumers was more important than any written boundaries, or lack thereof, until they could seek proper legislation to be formally introduced and debated.
The Future of Net Neutrality at Stake?
If the FCC’s actions are found to be overzealous, that does not necessarily mean that their decisions and precedents will be overturned or discarded. The three-judge panel will not only look at the FCC’s position and actions, but will also analyze the landmark FCC decision making process and its outcome. The process itself is likely to take months, perhaps even over a year. The outcome may ultimately decide just how concepts such as net neutrality translate into laws and actions that affect the companies that offer broadband services.
A change to the legal perception and/or interpretation of net neutrality will ultimately impact the lives of consumers, especially since they have the most to gain or lose. While it is clear that Comcast has legitimate reasons to block file sharing, consumers would probably be better served by an open Internet. This might leave Hollywood studios, authors, publishers, recording giants, software developers, and other groups in a bind.
The Best Possible Outcome
The best possible outcome would probably be that Congress sets aside a fast-acting body that will offer FCC advice and guidance in a timely manner, and that the current FCC decision will be left standing while respecting Comcast’s need to manage their network. The FCC’s freedom to investigate and act independent of constant oversight is part of the divisions of government that allow for greater efficiency and independent action. Limiting the ability of the FCC to act on its own would certainly be to the detriment of consumers everywhere.
