It's Not Okay To Tell ISPs What To Do With Ports
The lists were alive today with messages and stories about the FCC's consent decree [doc] with Madison River Communications, LLC. This is an extremely troubling development, in my view.
From Madison River's site, it looks as if most of its operations are common carrier telephone companies. But at least part of the LLC is an ISP (a broadband provider), and FCC has fined that ISP for blocking VoIP services — by blocking ports so as to interfere with the connectivity between equipment people have at home to use Vonage, and Vonage's servers.
Three major points here:
1. There are many reasons why an ISP might want to provide different levels of service or block particular ports. If the ISP fails to disclose that to customers, that's a problem. But if the ISP does disclose, and does block, customers who are unhappy can just go somewhere else (provided adequate competition exists).
2. FCC has no jurisdiction over ISPs. (Although the parent company here is a telephone company, the ISP is not a common carrier.) It seems to be hanging its hat on that familiar weak (now buckled) reed: ancillary jurisdiction. But FCC has not been delegated power by Congress [lengthy doc] to make rules about what ISPs can or cannot do, just as it hasn't been delegated power to make rules about what PC manufacturers and consumer electronics companies can do.
3. This may seem like a benevolent thing to do — force an ISP to carry VoIP traffic. But the power to do this benevolent act carries with it the power to do anything to an ISPs service. That “power to do anything” is an enormous regulatory stretch for the FCC that should not be assumed. It could lead to: “don't allow devices to be attached to a broadband connection that permit copyright infringement,” or “don't allow an ISP to provide broadband service unless it is piped directly to law enforcement,” or other rules that no one gave FCC the authority to make.
It's clear that FCC's intent is to stop this ISP from blocking VoIP for purely anticompetitive reasons. But the consequences of the FCC's assertion of power are enormous. They shouldn't have done it.