Monday, November 19, 2007
Keep FCC Out of Network Management!
Vuze is a really cool app, but a recent Vuze petition to the FCC [.pdf] asking the Commission
Do we really want the FCC to adopt rules defining what "reasonable network management" is? I think there are three reasons why we don't.
1) What's "reasonable" is likely to be determined by incumbents close to the ears of Kevin Martin et alia.
2) Specific rules are likely to be gamed by those with the ability to game them. Such games will define a gray area that will take decades to "settle." Settle, of course, will mean simply that the incumbents have stopped litigating.
3) Such a rule making would (if my IANAL understanding is correct) constitute another expansion of the FCC's "ancillary jurisdiction," which has already been expanded way beyond what Congress intended in 1934 and 1996.
Like food providers, Internet access providers should tell us clearly what's in the can. If they're traffic shaping, or throttling, or port blocking, or site blocking, or injecting reset packets, or app blocking, they should have a legal duty to say so. This was the Powell FCC's "fourth freedom." But asking the FCC to set out rules about which of those practices is reasonable is asking for trouble.
Instead, it should simply be illegal for Internet access providers to have any financial interest in what they're carrying. I've already said why here, here, and especially here.
. . . to adopt reasonable rules that would prevent the network operators from engaging in practices that discriminate against particular Internet applications, content or technologies . . .is, in my opinion, entirely the wrong way to go. The petition is aimed at Comcast, which is behaving covertly, unfairly and anti-innovatively, so Vuze's reaction is understandable. But I wish Vuze would think a bit more strategically!
Do we really want the FCC to adopt rules defining what "reasonable network management" is? I think there are three reasons why we don't.
1) What's "reasonable" is likely to be determined by incumbents close to the ears of Kevin Martin et alia.
2) Specific rules are likely to be gamed by those with the ability to game them. Such games will define a gray area that will take decades to "settle." Settle, of course, will mean simply that the incumbents have stopped litigating.
3) Such a rule making would (if my IANAL understanding is correct) constitute another expansion of the FCC's "ancillary jurisdiction," which has already been expanded way beyond what Congress intended in 1934 and 1996.
Like food providers, Internet access providers should tell us clearly what's in the can. If they're traffic shaping, or throttling, or port blocking, or site blocking, or injecting reset packets, or app blocking, they should have a legal duty to say so. This was the Powell FCC's "fourth freedom." But asking the FCC to set out rules about which of those practices is reasonable is asking for trouble.
Instead, it should simply be illegal for Internet access providers to have any financial interest in what they're carrying. I've already said why here, here, and especially here.
Technorati Tags: Comcast, FCC, NetworkNeutrality, StructuralSeparation
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