Comcast
Yesterday’s FCC decision to require Comcast to stop interfering with popular peer-to-peer applications being used by subscribers to its highspeed Internet access service was historic. Millions of Americans were surprised by Comcast’s discriminatory activities, and the FCC accurately sensed that it was time to respond. Just three years ago, such an action by the FCC would have been unthinkable. Now the Commission looks both brave and in step with the times.
Three years ago, the CEO of AT&T said, “There seems to be a mentality [on the part of online companies] that they can put more and more through our pipes for free. . . . We’re the ones who built the network. You cannot make that sort of investment if you can’t make a return on the capital. They’re more than welcome to use our networks, but if they do, they’re going to have to pay. It’s not free.” A Verizon executive said a month later that Google was “enjoying a free lunch that should, by any rational account, be the lunch of the facilities providers.”
The uproar that followed these comments has been sustained, mighty, and popular. We Americans assumed that basic communications transport services should be nondiscriminatory, and the hands-off approach of the FCC of three years ago seemed to violate some essential social contract. The uproar stopped some bad pro-incumbent legislation in its tracks.
Meanwhile, evidence of actual network operator discrimination mounted. A Pearl Jam online concert was censored by the network access provider. A text-messaging campaign by NARAL was categorized as “unsavory” by the cellphone company. Comcast denied absolutely that it was interfering with P2P transmissions, and then later when confronted with investigative evidence admitted that it had indeed been doing so.
Following two public hearings and tens of thousands of public comments, the FCC got the message. Now the Commission, led by Chairman Kevin Martin, has censured Comcast, and it’s clear to the world that discriminating against particular online communications isn’t something that a network access
provider should be doing. That’s a good change in the wind.
Other countries have taken a hard look at their communications policies, and have understood that communications and economic growth are tightly intertwined. The cost to the U.S. economy of adopting a taming, constraining approach to complex online communications by making them simple and predictable may be great. We are at risk of encouraging the development of a sclerotic, dumbed-down, cable television version of the Internet for U.S. users.
The network access providers have exactly this kind of plan in mind. They’d like to be able to charge what the market will bear for each Internet transmission, watching carefully what people are doing and choosing how to treat particular traffic. The FCC’s action last Friday, while a noble and necessary first step, won’t make that kind of behavior illegal. We need structural change to the law that will allow Americans’ instincts about the importance of basic nondiscriminatory transport to shape legal reality.
It looks as if public concerns about private discrimination have once again mounted towards the place that drove this country to adopt the original paradigm of regulation in the telecommunications field: administrative oversight of an industry providing nondiscriminatory services. That paradigm disappeared in a rush of deregulatory fervor over the last twenty years or so, leaving all general-purpose communications services private and free to discriminate. Traditional phone services (which aren’t allowed to discriminate) are disappearing, as people drop their home phone subscriptions and companies rip out regulated copper wires.
Over the same period of time, there has been tremendous consolidation in the network access provider market. Most Americans have very few choices when it comes to buying highspeed Internet access.
The battle over nondiscriminatory Internet access is far from over. But the outcome of this initial skirmish is the right one for our shared future.
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[…] Susan Crawford’s blog offers a wonderfully concise overview of the FCC/Comcast decision and the potential fallout which […]
[…] CLICK HERE for Susan Crawford’s commentary […]
[…] CLICK HERE for Susan Crawford’s commentary […]
“Meanwhile, evidence of actual network operator discrimination mounted. A Pearl Jam online concert was censored by the network access provider.”
You seem to be asserting the viewpoint a company can only be a single thing, and should be prohibited from doing anything else. AT&T had purchased the distribution rights for the performance, and was actiing as a publisher (including hiring the program director). Are you suggesting that AT&T should be prohibited from paying for publication rights or acting as a editor for publications because they also operate a portion of some networks?
Would the same separation apply to other content publishers, e.g. prohibit the same company from owning any communication networks if it also published anything?
If a band like Pearl Jam also operates an electronic communication forum, such as a fan web site, should Pearl Jam be prohibited from censoring any comments by their fans on the Pearl Jam web site because Pearl Jam is acting as both a content producer and a communications provider of a web site?
Is structural separation of prohibiting any company from both operating a network and producing any content really a solution? Or does shield both sides from competition with each other? Would Google need to divest itself of its fiber optic network it operates in order to continue making editoral decisions about what ads to show or how to organize search results?
[…] Susan Crawford sulla storica decisione della FCC che ha imposto a Comcast di non discriminare l’utenza P2P. Una decisione che non sarebbe stata pensabile soltanto tre anni fa: Three years ago, the CEO of AT&T said, “There seems to be a mentality [on the part of online companies] that they can put more and more through our pipes for free. . . . We’re the ones who built the network.” […]
[…] than explaining what’s at stake in my own words, I’ll just close by quoting a blog post from law professor Susan Crawford from a couple of weeks […]