FCC – Comcast Was Wrong to Throttle, but Prioritizing Packets is Fine

It seems like a victory for many to see Comcast punished for throttling BitTorrent, but now it seems the FCC has become confused about what to do at this point on the case.

There was already word that there is some dissent on the FCC ruling over throttling BitTorrent, but commentary from CNET seems to point out that there is much more going on at the FCC then originally thought.

Apparently, after the FCC issued a press release on the matter (DOC, PDF), Comcast basically cried foul over it – no fines, just a measly press release.

The interesting part is the idea that prioritizing Voice Over IP is actually perfectly fine – so does BitTorrent need to be left alone? You can read the comments yourself:

Critics correctly note that Congress still has not given the FCC explicit authority to decide Internet policy. Even as the FCC issued its decision, Chairman Kevin Martin went on record writing that while Comcast had no right to prioritize Internet traffic, it’s fine to prioritize voice over IP:

We do not tell providers how to manage their networks. They might choose, for instance, to prioritize voice-over-IP calls. In analyzing whether Comcast violated federal policy when it blocked access to certain applications, we conduct a fact-specific inquiry into whether the management practice they used was reasonable. Based on many reasons, including the arbitrary nature of the blocking, the lack of relation to times of congestion or size of files, and the manner in which they hid their conduct from their subscribers, we conclude it was not.

We do not limit providers’ efforts to stop congestion. We do say providers should disclose what they are doing to consumers.

So it’s OK to put individual data packets under a magnifying glass? But in its group statement–which Martin presumably signed off on–the FCC approvingly cited MIT professor David Reed, a respected Internet notable, who believes “that “(n)either Deep Packet Inspection nor RST Injection”–Comcast uses both to manage its network–”are acceptable behavior.”

This takes Emerson’s apercu that a foolish consistency is the hobgoblin of little minds to an extreme. Maybe the private sector can figure things out without confusing itself over regulation from bureaucrats. But they first need clear rules of the road to follow. Otherwise, expect more of the same.

It seems there is a lot of confusion about this ruling. It may be possible that the theory from the FCC is that ISPs can do something to give priority to a packet, but it’s not OK to take priority away from a packet. Put it in another way, it’s fine to add carpool lanes, but it’s unfair to put speed limits on the other lanes. Either way, one may wonder if Comcasts punishment is simply some bad publicity and a subliminal note saying they can keep doing what they are doing. With some suggesting that the FCC can’t do much with little legal authority (a fact that contributed to the downfall of the broadcast flag originally), there isn’t much that can be done at this point.

Related Posts

1. Comcast to FCC: ‘Yes, We Throttle BitTorrent Traffic, but So What?’
2. Comcast to Throttle Heavy Internet Users Up to 20 Min
3. FCC Chairman to Comcast: ‘Despite Appeal, We Want Answers’
4. Comcast Appeals FCC Decision Ordering End to BitTorrent Throttling
5. FCC Head: ‘Comcast Should be Punished for BitTorrent Throttling’