IP Democracy: FCC's Copps: Apply Net Neutrality Principles to Wireless Carriers

Following a week of public and private drama, the FCC this morning ruled (PDF) that Comcast's filtering of P2P applications violated its four principles (PDF) aimed at ensuring an open and neutral Internet. Democratic Commissioner Michael Copps, the current odds-on favorite slated to become FCC Chairman under a Democratic administration, took advantage of the much-watched vote to suggest that a new, fifth principle ensuring non-discrimination be adopted, one that could potentially expand the FCC's (hotly disputed) net neutrality-related authority to wireless networks.

"A clearly-stated commitment of non-discrimination would make clear that the Commission is not having a one-night stand with net neutrality, but an affair of the heart and a commitment for life," Copps said in his statement (PDF) affirming the decision. Marking a potentially significant expansion of the FCC's authority over Internet-related matters, Copps further suggested that this policy of non-discrimination be applied to wireless as well as wireline carriers. "A fifth principle should also, in my opinion, apply to wireless as well as to wireline networks," he said.

In terms of Comcast's punishment, by a three-to-two vote (Republicans Robert McDowell and Deborah Tate disagreed with the majority), the Commission ordered the nation's top operator to stop P2P filtering and provide more disclosure on its network management practices. Saying that it had conducted a thorough investigation and that it distrusted the company's contention that the filtering was part of reasonable network management, which is permitted under the principles, the FCC gave Comcast 30 days to disclose the details of its discriminatory network practices, submit a compliance plan for how it plans to end these practices and disclose to the Commission and consumers new network management practices that will replace existing methods.

Comcast announced earlier this year that it will change its network management practice to a protocol-agnostic technique by year-end, a good move but one that does not obviate the need for the FCC to take action now, Chairman Kevin Martin said in a written statement (PDF). "We need to establish the important precedent that we will stop the bad actors," he said. Given the "obfuscation" that Comcast has engaged in, the operator must still be forced to answer questions. Among these are queries about the details of precisely how its protocol-agnostic method will work -- e.g. will there be bandwidth limits instead and if so what happens when a customer exceeds them?

The real flash point in this ruling is the rationale for how and why the FCC has the authority to act on Internet network management issues in the first place. The ruling seemingly hinges on the 2005 principles, which were not developed through a traditional rulemaking procedure and are therefore unenforceable, Republican Commissioner Robert McDowell said.

In a strongly worded dissent (PDF), McDowell said "Like it or not, no notice of proposed rulemaking, with a chance for public comment, was ever issued. Nothing regulating Internet network governance has been codified in the Code of Federal Regulations. In short,we have no rules to enforce."

He also challenged the rationale seemingly offered in the ruling (the text of which won't be available for weeks) that the FCC has "ancillary" authority to adjudicate disputes as long as they are relevant to the FCC's existing areas of responsibility. In the absence of actual rules and with no clear Congresional directive in this area, a broadband network operator’s management practices are not within the FCC's purview.

McDowell also rebutted other rationales apparently relied upon by the majority in adopting the order, including a mysterious use of "strict scrutiny," a standard of judicial review in the federal courts that is usually employed in cases where the government has infringed upon a constitutional right.

It's only a matter of time before an appeals court weighs the merits of these and other complex arguments -- Comcast and the cable industry will surely appeal the decision. Comcast spokesperson Sena Fitzmaurice said in a statement that the company believes that the FCC's order "raises significant due process concerns and a variety of substantive legal questions. We are considering all our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays."

Posted by Cynthia Brumfield on August 1, 2008 1:38 PM to IP Democracy