FCC's Comcast Decision: File Sharing Drama, Act II, Scene I

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As reported at IT Business Edge and elsewhere, Comcast was ordered by the Federal Communications Commission last week to stop discriminating against customers using file sharing programs.


The company had slowed downloads and otherwise hampered these subscribers, who dominate network capacity. This New York Times News Service story says that the FCC levied no fine against Comcast and that the cable operator is reviewing its options. It is even possible that the rules cannot be enforced.


Despite all the questions, the decision is a milestone in the road to hashing out how Net Neutrality and network management will be reconciled. On one hand, the telcos think that the decision could be tactical good news for the carriers. Two phone company executives, apparently in the belief that telcos and cable companies are in the same boat on this issue, suggest in this CNET piece that the move by the FCC obviates the need for what they really fear, which is federal legislation.


The FCC decision is only an incremental step. Comcast can appeal. And, absent legislation, where the lines between legitimate network management, network neutrality and outright efforts to squelch competition lies could change drastically depending on the makeup of the commission. This doesn't seem to be the level of certainty that carriers will require when considering policy and equipment investments.


The fact that the decision is important, but anything but a final decision, is persuasively argued in this Huffington Post piece. The writer quickly offers three reasons why the decision is limited: It only applies to Comcast; it only applies to the techniques the operator used; and it may be challenged in court, thereby delaying a final say on many issues, including whether the FCC even has jurisdiction.


The bottom line, the writer says, is that the absence of any generality beyond the specific case at hand means that operators still are free to do just about anything they want -- and can only be limited by the similar actions to the one brought against Comcast. This one case, the story points out, took nine months and thousands of pages of documentation to settle.


The Wall Street Journal, in an editorial that came out in anticipation of the ruling, criticized FCC Commissioner Kevin Martin. The piece suggests that there was no problem that had to be fixed -- Comcast and BitTorrent, the file-sharing provider, have agreed, at least on paper, to work together on bandwidth management issues -- and that the decision may be the first unsure step down the slippery slope to control of content and other scary governmental oversight.


Where the conservative Journal and the liberal Huffington Post seem to agree is that great questions still exist about whether the FCC has the power to enforce its decision. Indeed, such concerns may be why Martin constructed it to narrowly address only the Comcast/BitTorrent case in the first place. The best advice is to stay tuned.