Last week in the Washington Post, Federal Communications Commissioner Robert McDowell published an op-ed asking, “Who Should Solve This Internet Crisis?”

Based on that article and his lengthy, flawed dissenting statement at last week’s FCC meeting, this much is clear: It shouldn’t be McDowell.

Comcast, the nation’s largest cable company, secretly blocked Internet users from accessing legal content. It got caught. Last Friday, a bipartisan majority at the FCC moved to hold it accountable.

That’s the FCC’s job. But McDowell, the commission’s newest member, mounted a spirited defense on the company’s actions that conveniently leaves out many facts of the case.

The Case Against Comcast

Comcast clandestinely cut off transmissions by impersonating their customers. When it was first caught blocking, its spokespeople denied it. Then Comcast claimed it was just “delaying” traffic in the name of “reasonable network management.” When the FCC investigated and held public hearings, Comcast paid people to pack the rooms, applaud on cue, and keep the public out. When all else failed, it launched a last-minute smear campaign against FCC Chairman Kevin Martin.

Independent tests conducted by the Associated Press, the Electronic Frontier Foundation, and Germany’s Max Planck Institute clearly demonstrated that Comcast wasn’t just targeting a few high-bandwidth users at busy times; it was blocking peer-to-peer protocols all day and night regardless of the size of files being transferred. The AP couldn’t even upload a copy of the King James Bible.

This strong evidence is the basis of the complaint filed at the agency by Free Press, Public Knowledge and a group of esteemed legal scholars. They were supported by tens of thousands of public comments asking the FCC to stop Internet blocking.

McDowell was strangely unruffled by any of this.

What’s Causing the Traffic Jam?

Instead, McDowell tries to excuse Comcast’s illegal behavior by stoking fears about traffic jams and “clogged arteries” on the Internet. But he fails to recognize that with the growing thirst for audio and video on the Web, today’s “bandwidth hog” is tomorrow’s everyday user. Instead of reinvesting in the capacity we’ll need, Comcast is pocketing its sizable profits while trying to exploit its control of the pipes to undercut the competition for Internet content.

McDowell cites statistics peddled by the cable companies that only “5 percent of Internet consumers are using 90 percent of the bandwidth due to P2P.” Numerous other traffic studies suggest this isn’t accurate. Think about it: Are we really to believe that all those YouTube videos, phone calls, and emails are only 10 percent of traffic?

And while McDowell says “some estimate that 75 percent of the world’s Internet traffic is P2P,” he cherry-picks one of the more outlandish estimates. Even Sandvine – the Canadian company that provided Comcast’s Internet blocking tools – guesses that just 44 percent of North American traffic is P2P. Other estimates are even lower.

One thing consumer advocates and Comcast can agree on, however, is that that Internet traffic has grown consistently year to year by about 40 to 50 percent. According to “Moore’s law,” computer technology should get cheaper and faster at about the same rate.

Yet rather than upgrading their bandwidth rate to meet demand, Comcast blames its customers for wanting to use more of its product. Instead of secret blocking, how about some more capacity?

An Engineering Problem?

McDowell suggests that the issues here are too complex for the average policymaker. He insists the Internet is best left to engineers instead of “unelected bureaucrats.”

But apparently he wasn’t listening when engineers like David Reed and David Clark – two of the original architects of basic Internet protocols – harshly criticized Comcast’s actions in testimony before the FCC.

The fact is that rather than addressing “network management” in an open manner, Comcast chose to secretly block file-sharing in a way that violates every accepted Internet standard.

McDowell is fond of comparing Comcast’s malfeasance to a moment in 1987 when engineers came together to solve Internet congestion issues without the government getting involved.

But unlike Comcast, those engineers two decades ago agreed to standards to address congestion without blocking or targeting particular content or applications. Unlike Comcast, those engineers were not working for one company secretly interfering with the Internet experience. Unlike Comcast, they openly collaborated in the light of day.

Side Deals and Settlements

McDowell also touts a last-minute “settlement” between Comcast and the company named BitTorrent as evidence that there’s no need for “government intervention.” But BitTorrent wasn’t even part of the complaint against the cable giant. And the that deal never would have happened without public and government scrutiny.

Furthermore, the vague arrangement was worked out with just one company — the countless other firms using the same technology weren’t consulted. And those innovators, such as Vuze and Miro, celebrated the FCC’s move against Comcast.

Moreover, press releases issued by Comcast won’t prevent other cable and phone companies from blocking or trying to stifle the next big thing.

That’s why we need a clear policy against discrimination – a.k.a. Net Neutrality — that applies to everyone.

The Rules of the Road

McDowell suggests a false choice when he urges us to choose “collaboration over regulation” when it comes to Internet governance.

We’ve always had rules, and we always will. The only important question is whom those rules will benefit. Will it be the small handful of phone and cable companies who have showed time and again that they can’t be trusted? Or will it be the innovative entrepreneurs and cacophonous voices that make the Internet so great?

Largely absent from McDowell’s arguments is mention of the public — the FCC’s actual constituents — who have made clear that they want the Internet to remain free from secret meddling and corporate gatekeepers of any kind.

McDowell, unlike his current Republican colleagues, is likely to stay at the FCC in the next administration. This makes his disconnect from the popular will even more disconcerting.

Fortunately, a bipartisan majority at the FCC is listening to the public and has now established a clear precedent that blocking will not be tolerated. That’s the kind of collaboration everyone should support.

This entry was posted on Wednesday, August 6th, 2008 at 2:48 pm and is filed under BitTorrent, Comcast, FCC.-->