Tales of the Sausage Factory

Does Comcast Fear To Win Too Much?

I grant I wasn’t there, but pretty much everyone who was seems to think the D.C. Circuit oral argument in the Comcast/BitTorrent case was an utter disaster for the FCC/pro-NN forces and a total triumph for Comcast. Given my previously voiced opinion about the judicial activists on the D.C. Circuit, I can’t say this surprises me even in light of the previous precedent. Indeed, from what I have heard, the D.C. Circuit appeared breathtakingly eager to rush past the procedural issues and declare that the FCC has absolutely no jurisdiction to regulate anything an ISP ever does, ever.

So why has Comcast, which (along with its trade association) has argued that it would violate its First Amendment rights for the FCC to regulate its conduct as an ISP, posted this blog entry to explain that of course they totally support FCC regulation of broadband ISPs, under the right circumstances, etc.?

Answer: Comcast fears to win too much. For Comcast (and other broadband providers), the ideal world consists of an FCC with jurisdiction but no authority. That is to say, they want an FCC that appears to have authority to do something, but when push comes to shove is prevented from actually doing anything Comcast doesn’t like. Which is why Comcast wanted to win on procedure and, perhaps, get the court to threaten the FCC that it had no authority. In that universe (which could still come to pass), Comcast could keep Congress from giving the FCC explicit authority by saying it has jurisdiction but keep the FCC from doing anything by claiming that it lacked authority for any specific action.

But there is every indication that the D.C. Circuit will go much further, and find that the FCC has no jurisdiction to even consider regulation of ISP behavior no matter what the circumstances, because it doesn’t believe that ancillary authority exists. While that sounds like exactly what Comcast would want, it scares them silly. Because even the fear of this sort of huge loss creates a panic that could lead Congress explicitly delegating the FCC extremely clear and unambiguous authority.

More, including a shout out to all my fellow Buffy the Vampire Slayer fans, below . . . .

UPDATE: According to this blog post by Washpo Reporter Cecilia Kang, I’m not the only one thinking this way. A few more choice remarks from NCTA’s Kyle McSlarrow about how the FCC’s role is to be a big ATM for his members may get even this Congress off it’s rear end.

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Posted in Series of Tubes, Tales of the Sausage Factory | Also tagged , , , , , , , , , , | 3 Comments (Comments closed)

Tales of the Sausage Factory

Very Interesting Map Of Comments In BB Stimulus Proceeding

In my capacity of consulting with the Benton Foundation, I have been doing work with Kate Williams, a professor of informatix at University of Illinois. Williams has been doing some (IMO) critical work around broadband sustainability. In particular, Kate has been studying the old Technologies Opportunity Program to determine which projects had lasting impact and which didn’t — a rather important consideration for the new and improved BTOP program.

But what caught my attention recently is this very interesting map that Williams compiled based on the comments submitted to BTOP. It places the comments filed on a geographic map, with links to the actual comments themselves. The map includes the 58% of comments filed by the April 13, 2009 deadline which contained reliable information on the location of the commentor. The remaining 42% either gave no location or included location in an attachment which Williams considered insufficiently reliable to determine location.

Why do I find this interesting? Because it potentially provides a very interesting cross check on the state of broadband geographically, as well as who follows these proceedings. I have long lamented that the FCC (and other federal agencies) make so little use of the data they actually collect. At best, an agency may note submission by a class of commentors (e.g., broadcasters, MVPDs, ISPs) in the specific proceeding at issue. But no one tries to take the multiple data sets collected as comments in each proceeding, or in multiple proceedings, and tries to determine patterns and what they might suggest. williams grouping by geography is intriguing, and I cannot help but wonder what would happen if we applied a similar analysis to multiple FCC proceedings — including for comments generated by mass “comment engines” that have become common in some high profile proceedings. It would be very interesting to know, for example, if the people feeling passionate enough about media consolidation or network neutrality cluster geographically and, if so, do we see patterns of geographic interest which might tell us about the actual situation on the ground.

Of course the sampling from comments is not a pure scientific data set in that to comment, a commentor must (a) know about the proceeding, and (b) feel strongly enough to file comments. But the fact that the information has a particular set of biases does not render it meaningless, especially if one controls for this.

I hope researchers use Williams’ map, both to analyze the BTOP comments and as a model going forward for analysis of other proceedings.

Stay tuned . . . .

Posted in Tales of the Sausage Factory, The Stimulus Package (ARRA) | Also tagged , , , , , | 3 Comments (Comments closed)

Tales of the Sausage Factory

Comcast /BitTorrent Update: Important Filings by Topolski, Peha, and Ou (and some analysis by yr hmbl obdnt).

Most folks do not monitor the day-to-day filings in the Broadband Practices Notice of Inquiry, Docket No. 07-52, the proceeding which has become the open docket part of the regulatory discussion on Comcast’s treatment of p2p uploads. Lucky them. But the sifting of this endless stream of regulatory filings has yielded some rather important nuggets of gold in the last few weeks that deserve much greater attention for anyone who cares about the substance of the debate. As I discuss below, three recent filings deserve particular attention:

a) Robert Topolski demonstrates that Comcast blocks p2p uploads at a remarkably consistent rate, at any time of day or night when the test takes place, and regardless of the nature of the content uploaded. This is utterly inconsistent with Comcast’s stated position that it “delays” p2p traffic only during times of peak network congestion. Topolski adds some other interesting details as well.

b) Jon Peha, a Professor of electrical engineering and public policy at Carnegie Mellon, provides his own explanation why Comcast’s characterization of its “network management practice” as merely “delaying” p2p uploads and its claim that this practice is in accord with general industry practice is nonsense.

c) In defense of Comcast (or at least, in opposition to any government action to restrict the ability of ISPs to target p2p traffic specifically), George Ou filed this this piece on how bittorrent and other p2p applications exploit certain features of TCP, a critical part of the protocol suite that makes the internet possible. Ou argues that as a result of this feature of p2p, heavy users of these applications will always be able to seize the vast majority of available bandwidth on the system to the disadvantage of all other users. Accordingly, the FCC should acknowledge that it is a “reasonable network management” practice to target p2p applications specifically as opposed to heavy users or all applications generally.

My analysis of each filing, and something of a response to Ou, below . . . .

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Posted in Spectrum, Tales of the Sausage Factory | Also tagged , , , | 19 Comments (Comments closed)

Tales of the Sausage Factory

A good week for civil liberties — mostly

Three opinions came out last week that made a nice little Chanukah gift for civil liberties buffs. Two related to Ashcroft’s attempts to circumvent the Constitution in the name fo security, one cuts short the RIAA’s efforts to gut the Constitution in the name of copyright. But the opinions still leave a lot of room for concern.

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Posted in General, Tales of the Sausage Factory | Also tagged , , , | 1 Comment (Comments closed)
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