On Friday, the FCC voted, 3-2, to punish Comcast for its surreptitious interference with BitTorrent uploads (a practice that EFF helped uncover and document in October 2007). The Commission adopted an order (text of which hasn't been released yet) finding that Comcast violated the neutrality principles set out in the FCC's 2005 "Internet Policy Statement." According to the statement released by FCC Chairman Martin, the order will require Comcast to disclose its practices and stop discriminating against BitTorrent traffic (Comcast, for its part, has already announced that it will be moving to different mechanisms to throttle high-bandwidth users.)
We're pleased that the FCC recognized that Comcast's behavior violated the Internet Policy Statement and could not be excused as "reasonable network management" -- we said as much in our comments to the FCC. We are particularly encouraged that the Chairman Martin specifically took Comcast to task for not adequately disclosing what it was up to -- for the free market to work, customers needs to know what they are buying.
But it's important to recognize that this is just the beginning, not the end, of the fight. The Commission made it clear that it intends to police this frontier of net neutrality on a case-by-case basis, responding to specific consumer complaints. In order to bring these kinds of complaints, however, concerned Internet users need more and better tools to detect ISP misbehavior. That's why EFF today announced the release of the Switzerland network testing tool, the second tool released by EFF's "Test Your ISP" project.
There is one aspect of Friday's FCC ruling, however, that seriously troubles us. Consider how the FCC got here. In 2005, without any authority or guidance from Congress, the FCC announced a "policy statement." Now, in 2008, it decided that it has the power to enforce the policy statement and announced an "enforcement framework" that will be applied to future complaints. Again, all this without authority or guidance from Congress. As Commissioner McDowell put it in his dissent from the Comcast order, "Under the analysis set forth in the order, the Commission apparently can do anything [to regulate the Internet] so long as it frames its actions in terms of promoting the Internet or broadband deployment." Can the FCC be trusted with that kind of power? Remember, historically, the FCC has been subject to "regulatory capture" -- in other words, over time, they end up doing the bidding of the very telecom giants they are supposed to be regulating.
So while there is a great deal to like about the Internet Policy Statement, and today the FCC appears to have come to the right conclusions about Comcast's behavior, what if the next "policy statement" turns out to be a disaster for net neutrality? After all, a polar bear makes a great bodyguard, until it decides to eat you.