Information Technology Reference
In-Depth Information
a fifth principle of nondiscrimination to protect
independent applications and content companies
in their commercial relationships with ISPs.
The FCC delivered a landmark broadband
decision in August 2008 (FCC, 2008) regarding
the reasonableness of a non-standard network
management practice utilized by the leading
cable operator, Comcast, a decision that has been
called “an extraordinary change of direction in
FCC policy” (Sieradzki and Maxwell, 2008).
This practice implicated the concept of openness
for it resulted in degradation in performance of a
popular file-sharing applications protocol. This
regulatory decision began the difficult process of
delineating the boundaries for reasonable network
management practices. Comcast was found to
have utilized a network practice that singled out
and secretly interfered with the performance of a
peer-to-peer protocol used commonly to share files
among end users. In particular, the peer-to-peer
applications protocol is widely used to distribute
in a decentralized manner video files, competing
to some extent with Comcast's video-on-demand
service. Comcast was able to identify the contents
of a packet (similar to the Postal Service open-
ing a letter to determine its content) by using a
technology called deep packet inspection. Com-
cast first argued that the protocol interference
only occurred when there was congestion on the
network, an assertion that they later retracted.
During the course of the FCC's investigation of
the practice Comcast and BitTorrent (one Internet
service provider that used the protocol) reached
a settlement on the practice which some assert
today means that the market, without government
intervention, corrected the problem (The FCC's
Heavy Hand, 2009). It should be noted that com-
petition among ISPs did not solve the problem of
the degradation of performance of this protocol
for end users. Comcast promised to replace by the
end of 2008 the practice with a protocol-agnostic
network practice to address congestion problems
on the network. This practice focuses on the
bandwidth use of end users and only intervenes
in times of a congested network by restricting the
activity of heavy users of the scarce bandwidth
resource. The FCC found the new practice to be
reasonable for it furthered a critically important
interest (network congestion) and was narrowly
tailored (focused specifically on heavy users) to
further that interest. This decision, in effect, creates
a safe harbor for this protocol-agnostic network
practice. Such a standard preserves discretion
for ISPs to select among reasonable practices to
manage their networks. It should be noted that the
Comcast decision did not address the legality of
a management practice that gives higher priority
to some packets, such as real-time communica-
tions packets (e.g., VoIP), than to other packets
as negotiated in a commercial agreement (FCC,
2008, footnote 202).
The decision (narrowly passed by the FCC
with a 3-2 vote) has been challenged by Comcast
in court arguing that the FCC did not possess the
legal authority to take such action for a service
classified as an information service and basing its
decision on principles not rules. It has been argued
that this assertion of regulatory power by the FCC
is “unprecedented, sweeping in its breadth, and
seemingly unbounded by conventional rules of
interpretation and procedure” (Esbin and Marcus,
2009). Recognizing the somewhat murky nature
of the FCC's authority to regulate the behavior of
broadband ISPs, there are outstanding bills now in
Congress to provide the agency clear jurisdiction
over these services.
Another FCC decision provides a model for the
FCC to implement targeted regulation of broad-
band ISPs. The FCC approved the merger of AT&T
and BellSouth in 2007. The approval was subject
to several conditions implicating net neutrality
concerns. First, the merged company agreed to
conduct business in a manner consistent with the
Internet Policy Statement for 30 months. Second,
AT&T agreed to not provide a prioritized service
that would favor packet transmissions based on
source, ownership, or destination for two years.
In short, this condition banned the offering of a
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