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FCC enforces internet anarchy

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Dissenting commissioner Tate drew attention to mediating role the FCC had performed in March, when Comcast and Bittorrent Inc announced a charter to co-operate.

"Rather than concentrating on 10% of the traffic by 5% of the heaviest bandwidth users, we should be ensuring that the 95% of ordinary subscribers are not negatively impacted as they use their internet for their child’s homework, shopping, getting news, sending emails and watching TV and YouTube," she added.

But the most exhaustive disagreement was expressed by commissioner Robert McDowell in a 12-page statement, in which he unleashes an arsenal of criticism on the judgement.

McDowell begins with the matter of whether the FCC has any business here. Firstly, he says, the FCC has always exempted cable providers from traditional obligations aimed at the AT&T monopoly, specifically the requirement to open up its lines. Instead, cable is regarded as an unregulated "information service" and he doesn't think the Supremes' 2005 "Brand X" decision (where ISPs failed to win the right to share cable lines) alters its jurisdiction.

More importantly, he says, the FCC can create principles, but in the absence of Net Neutrality legislation, "we have no rules to enforce", and is overstepping its bounds.

"If Congress had wanted us to regulate Internet network management, it would have said so explicitly in the statute, thus obviating any perceived need to introduce legislation as has occurred during this Congress. In other words, if the FCC already possessed the authority to do this, why have bills been introduced giving us the authority we ostensibly already had?", McDowell asks.

But his most damning shots are aimed at the judgement itself.

"The evidence in the record is thin and conflicting. All we have to rely on are the apparently unsigned declarations of three individuals representing the complainant's view, some press reports, and the conflicting declaration of a Comcast employee. The rest of the record consists purely of differing opinion and conjecture."

Not only are his fellow commissioners unable to demonstrate harm, they can't demonstrate what the harm really is.

"Although I have a tremendous amount of respect for each of my colleagues, none of us has an engineering degree... The Internet can function only if engineers are allowed to discriminate among different types of traffic. Now, the word 'discriminate' carries with it extremely negative connotations, but to network engineers it means 'network management'. Discriminatory conduct, in the network management context, does not necessarily mean anticompetitive conduct ... By depriving engineers of the freedom to manage these surges of information flow by having to treat all traffic equally as the result of today’s order, the Information Superhighway could quickly become the Information Parking Lot."

Few expect the FCC's decision to stand. But for a few months, or maybe longer, Americans may get a flavour of how well the internet works when technology utopians, political activists and regulatory quangos make the engineering decisions. It's what they've wanted - so let's judge them on how well they do. ®

Download the FCC's press release, chief commissioner Martin's justification and McDowell's dissent.

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