The FCC just released the text of the Order adopted on August 1 finding for Free Press on the Comcast Complaint and Declaratory ruling and denying Vuze's Petition for Rulemaking. You can get the pdf here.

Larry Lessig pretty much says it all with his letter commending the FCC on its decision. For myself, I see this as another in a series of important wins, building on previous wins. Read it, particularly the footnotes, and you will find reference to the C Block openness conditions, the Adelphia Transaction Order, and every other baby step along the road that proved absolutely critical to getting us this far.

And, just as with those victories, we did not imagine for one moment that we had finished our task or that we had solved our problems. The danger to an open internet that remains a platform “as diverse as human thought” in the face of broadband providers trying to convert it into a combination shopping mall, movieplex and theme park continues. But we prevented Comcast from creating an “industry standard” around blocking or degrading peer-2-peer applications and put every ISP on notice that they will need to make real disclosure of their “network management practices” when those practices block or degrade subscriber choices. That the market would not respond on its own — at least not in a positive way — is evidenced by the fact that Comcast, despite all the negative publicity, promises to change, etc., is still targeting bittorrent. To the contrary, had we not acted, I do not doubt that other broadband ISPs would, over time, have adopted this and similar techniques, and without notifying their subscribers in any meaningful way.

We have also created another positive precedent for the day when a future FCC or Congress will adopt rules that provide the level of protection we need to maintain an open and competitive internet. This FCC opinion establishes the jurisdictional basis for any future rulemaking and, while declining to adopt rules now, explicitly states that the FCC retains the jurisdiction to create rules in the future — noting that the Carterfone network attachment rules began as an adjudication and ultimately culminated in Part 68 of the Commission's rules. Despite a raft of theories (conspiracy or otherwise) to the contrary, this Order does not weaken our efforts to get general rules or get legislation passed. To the contrary, by recognizing that rules protecting the openness of the Internet further the important interests of the First Amendment (Par. 43 n. 203), this Order strengthens our ability to get rules or legislation in the future.

While it leaves certain critical questions — such as whether a third party can pay a broadband access provider for “premium” treatment regardless of user preferences — unresolved, it does so in a way that leaves us free to come back without any bad precedent or presumption. Copps and Adelstein can continue to press for adoption of a fifth principle on non-discrimination without fear that voting for this Order somehow put them in a box.

More below . . . . [Read More!]

I just got a postcard from Verizon telling me FIOS will soon be available in my neighborhood. While I'm probably one of the last residential CLEC subscribers in the United States, I'm a firm believer in the idea that fiber is better and have been waiting for FIOS to become available so I can look at switching.

Then I saw the prices. Yuck. Verizon prices its FIOS as “competitive” with cable and other providers in my region — for a premium service. But it takes more than competitive to get me to go through the hassle of switching, especially when I am reasonably comfortable with my service right now. Switching doesn't just mean spending several days going through hook up Hell and having Verizon install some super duper power pack on my premises. It also means changing a whole bunch of things tied to my (or my wife's) current email address. That's no small deal.

Meanwhile, as everyone knows, the cable operators did better at gaining new broadband customers in Q2, although uptake for broadband was generally anemic. Not surprisingly, Verizon defends its performance on its policy blog. Besides the usual (when you do poorly) inveighing against looking at a single quarter. Verizon points to a number of indicators that its FIOS system is the top dog system in the U.S., with possible top speeds of up to 50 MBPS and usually providing its advertised speed (I love that as a selling point!). Still, analysts argue that Verizon is pricing itself out of the market, and should go back to DSL.

I have a different take. I think VZ needs to get people addicted to speed.

More below . . . . [Read More!]

Imagine for a moment my local school board is considering a measure to fight childhood obesity by banning “unhealthy” food and requiring that school vending machines only provide “healthy snacks.” Now suppose I am a vendor of things such as nacho flavor chips, cheese doodle equivalents, and other foods of a similar nature. Expecting that such a rule would make it more difficult for me to sell my products, I raise my hand at the school board meeting and engage in the following line of argument.

“Are oranges healthy food?”

“Yes,” the relevant official replies.

“Are carrots healthy food?”

“Yes.”

“So all things orange, like carrots and oranges, are healthy foods. Good.” Whereupon I sit down.

Subsequently, I try to sell my nacho chips and cheese doodle equivalents to schools. When informed they are not “healthy snacks,” I become quite upset. I invoke the “Rule of Orange Things” that declares that we need to treat all orange things fairly by treating them the same, so we either have to let me sell nacho chips or ban people bringing oranges and carrots. I will also complain that there is no way I could possibly have known that nachos and cheese doodles might not be “healthy food,” since they have an FDA mandated nutrition label (so they must have nutrition) and who the heck knows what “healthy food” means anyway, since we can see that many nutritionists are now down on juice and even on certain fruits or other foods long considered healthy alternatives to cookies and sugar sodas.

In such a situation, most of us would have no problem saying that nacho chips and cheese doodle equivalents are not “healthy food” despite being orange — because what makes oranges and carrots “healthy food” has nothing to do with their color. Most of us would also agree that while their may be some marginal cases around things like apple juice v. water v. soda, there is no definition of “healthy snacks” in use outside the junk food biz that would include nacho chips and cheese doodles — mandatory “nutrition label” notwithstanding.

Which brings us to the National Cable Telecommunications Association (NCTA) filing last Thursday just at the close of the bell in the Comcast/BitTorrent complaint docket (because the FCC issued a public notice for the meeting at which it will decide the complaint, the docket is now closed).

A bit more below . . . [Read More!]

It is a rather trite cliche that those who do not learn from history are doomed to repeat it. But in law, where concepts such as precedent and law matter a great deal, there's an even bigger problem: Those who do not learn from history are likely to miss the obvious.

As we all know, Comcast has invested a lot of time in arguing that they lacked notice that the FCC would enforce the principles of the policy statement via a complaint against them. “How could we possibly have known?” Comcast has asked, winning sympathetic nods from a variety of folks. “Policy statements aren't enforceable! How can you possibly punish us for something we didn't know we might be held accountable for, all our public statements to the contrary?”

Well, let us suppose that Comcast was told two years ago today that the FCC would entertain complaints if Comcast blocked or degraded traffic. Would that make a difference? If the FCC had said directly to Comcast: “If in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.” I would think we could all agree that this constituted “notice,” yes? Perhaps not notice of whether or not the behavior at issue constituted blocking or degrading — that is, after all, what the Commission determines in a complaint. But certainly if the FCC had told Comcast directly, to its face, no ifs and or buts, the above quoted line, I would hope we could all agree that Comcast had received reasonable notice that parties could bring complaints to the Commission, asking the Commission to determine whether the parties had behaved in an inappropriate manner.

Because — Surprise! — exactly two years ago today, that is exactly what the FCC told Comcast.

More below . . . . [Read More!]

As the FCC's examination into our complaint against Comcast winds down, with what looks like a win for us (although with an opponent like Comcast, I am not going to celebrate a win until after the order is voted), Comcast has increased its efforts to woo McDowell and Tate with a show that “the market” will magically cure all ills by cutting a non-aggression pact with Vonage and a new ex parte filing listing all the wonderful things it has done since the Commission put our complaint out on public notice, which is an obvious sign that no regulatory action is necessary since it is merely coincidence that Comcast (and other broadband providers) have been scrambling with ever more serious urgency as the resolution of the complaint moves closer. Ah Comcast “Change we can believe in until all you stupid regulators go away and we can get back to crushing folks like insects beneath our fiber-coax heel.”

More of interest to us legal (and less credulous) types, Comcast filed a lengthy rebuttal to Marvin Amori's magnum opus on Commission jursidiction. Marvin's piece was, of course, a response to the Comcast filing after the Boston Hearing, that asserted the FCC had no authority to sanction Comcast or regulate Comcast's broadband in the first place. Mind you, Comcast told the a California district court otherwise, and got a stay of the pending class action for blocking bittorrent as a consequence. But the first lesson of law school is that consistency is only a virtue if it serves your client. In any event, this most recent filing (which has not yet shown up online for me to link to) is therefore either the rebuttal to FP's reply or merely the Nth go round in a “permit but disclose” proceeding.

This is reflected by Comcast's argument, which largely rehashes previous arguments about the limits of Commission authority and whether Comcast had proper notice it could be subject to a civil complaint and civil sanction. Fair enough. Time now for the FCC to decide and then on to the D.C. Circuit. That's what process is for, to get the arguments out so we can get a judgment and get on with our lives.

But Comcast does raise one new argument, and an intriguing one at that. And ya know, I think the Commission ought to give it to them. Heh, heh, heh . . .

Why am I chuckling? See below . . . . [Read More!]

This article from the London Times is useful both for its substance and for what it says about the sorry state of the debate in the U.S. While the U.K. has much higher available penetration and speed than the U.S., it is considered rather pokey and slow for Europe. As the article observes, the problem is that private companies don't want to invest in upgrades of infrastructure.

More below . . . [Read More!]

Cable gets a lot of mileage out of repeating things over and over until folks believe it's true. Today on Telecom Mythbusters I'd like to focus on the question of “ancillary” authority and regulating broadband. The cable guys generally circulate two myths about this.

1) Ancillary jurisdiction by the FCC is an exceedingly rare, wacky, way out thing and the fact that net neutrality advocates even want to rely on it shows how way out there and kooky it is.

2) The D.C. Circuit has been busy trimming back ancillary jurisdiction so that it really doesn't exist anymore. Specifically, the D.C. Cir. 2005 decision in American Library Association v. FCC, 406 F.3d 689 (D.C. Cir. 2005) (and, to a lesser degree, MPAA v. FCC, 309 F.3d 796 (D.C. Cir. 2002) worked some kind of mojo against the expansive grant of power by the Supreme Court in United States v. Southwest Cable, 392 U.S. 157 (1968) and the Supreme Court's explicit statement in Brand X so that the FCC cannot regulate broadband access and prohibit Comcast from targeting specific applications such as BiTtorrent under ancillary jurisdiction. A sub-myth of this is “Title I cannot be the source of authority on its own.”

Marvin Ammori, General Counsel of Free Press, has written a stunning tour de force rebutting these arguments. The 100+ page filing masterfully traces the FCC's authority under Title I and in this particular proceeding. But for those who don't want to read through the whole thing, I will give my own take below.

I must once again warn readers that this will be a breathtakingly dull review of applicable case law, along with an examination of FCC precedents and does not go to the juicier merits of policy (not that I expct this to stop the Brett-bot from his inevitable comments). If you do not find legal minutia fascinating beyond words, if you do not thrill at the discussion of the subtle differences between a “Telecommunications Service Provider” and a “Common Carrier,” then for God's sake, turn back now! Lest your brain dissolve into tapioca pudding from the awesome power of legal analysis unleashed.

(and for Brett: Blah blah blah evil blah blah Free Press blah blah MAP blah blah Ginger)

Otherwise, to see both myths BUSTED, read more below.... [Read More!]

There are those still clinging to the desperate hope that somehow critics of Comcast's “network management” policy of “delaying” BitTorrent packets “only during peak congestion periods” will be discredited. These folks have therefore wasted much time and energy calling those of us who filed the Comcast complaint all manner of nasty names, made sneering and condescending comments about Robert Topolski's qualifications and the accuracy of his tests, and generally behaved like total obnoxious gits. So you will forgive me if I once again channel my “inner Cartman” and provide these folks with some bad news.

The Max Planck Institute for Software Development (MPI) has just released major study showing that Comcast and Cox Cable engage in major blocking of BitTorrent traffic regardless of network congestion levels, Robert Topolski and Jon Peha are right, and George Ou needs to shut the [bleep] up with his pathetic whining. Oh yes, and Ou also needs to get over his belief expressed at the Stanford FCC hearing that the reset packets could be coming from some mysterious source other than Comcast. Unless George is going to express a belief in the “reset packet faerie,” who sprinkles forged reset packets over good little networks to keep them safe from bandwidth hogs (which explains why this constant “leakage” only happens to Comcast and Cox), it's time to face the reality that Comcast (and apparently Cox as well) really are using forged reset packets, deliberately, and all the time, just like we said they were.

Knowing, however, that folks like Ou (and paid flacks such as my friend and sparing partner Scott Cleland) are as incapable of admitting error as a certain Decider-In-Chief, I eagerly await the whacky weasel words that will inevitably follow. Will it be hand-waving technobabble? Ad Hominem attacks, cheap rhetorical tricks, and endless hair-splitting about definitions or 'what I actually said was blah blah blah'? An effort to brush past this by proclaiming “this was never really about whether there were WMBs (weapons of mass BitTorrent blockage), this was about freeing the good customers of Comcast from the oppression of Al Qeda bandwidth hogs that use 90% of the capacity?” Another “expert study” that tries to cast doubt on Max Planck Institute (MPI) study? Or perhaps some delightful combination of all of these? The heat will be on!

A bit more analysis and a lot more snarkiness below . . . . [Read More!]

Well, that was fun. I reprint my testimony as prepared, not as delivered. I also cut a very insider joke. I'd planned to start:

“Mr. Chairman, I understand that this is the open Commission meeting, so it is perhaps no surprise that we are running an hour late. Also, as I have not had time to complete this testimony, I ask for editorial privileges.”

But no one off the podium was likely to get it.

[Editorial note from John (to help search engines and any random Wetmachine readers who stumble upon this): This post concerns Harold Feld's testimony at today's FCC hearing at Stanford University.]

Stay tuned . . . . [Read More!]

As an inveterate procrastinator, I cannot complain too loudly that the Commission only just published the witness list for tomorrow's (today's) FCC hearing at Standford. Happily, it looks like I am the only lawyer on the panel. I am also amused to share the panel with George Ford, who took me to task after the last time we both testified in front of a federal agency about broadband — the Federal Trade Commission in February 2007 — for making my First Amendment arguments at the FTC under the guise of economics. My turn to remind him that we are in public interest land now, baby, where the Red Lion still rules the Jungle and maintaining the diversity of information sources is, according to Turner a government purpose of “the highest order.” Come to think of it, I'll remind some of the Commissioners of that as well.

Meanwhile, on the flight in, I received an amazing omen from Comedy Central (which is why you should always fly Jet Blue if you can, so you can get 36 channels of omen potential). Tonight's episode of South Park (spoiler alert!) had the internet getting “used up,” with the government rationing the internet for the internet refugees who came to Silicon Valley. But then Kyle, the little Jewish kid, shows them a better way. Rather than rationing users, you can just reboot the internet (which is kept by the federal government in an underground bunker) and try again. In the end, Stan's father explains to everyone that it is the responsibility of users to manage their internet use respopnsibly rather than rely on others to ration it for them.

I choose to take this as an omen that I, the Jewish kid on the panel, will be sucessful in rebooting the Commission to get them to understand that it's about the users, not about letting people in the middle ration the internet. Granted that Ben Scott actually looks more like Kyle, and I look more like Cartman. So perhaps I will just limit myself to making wise ass remarks and let Ben reboot the Commission. Either way is good.

Off to write some testimony.

Stay tuned . . . .