A good police officer is always on the scene to deal with a situation, but a great one diffuses the situation before it gets out of hand.  The FCC was that great police officer of the Internet in 2008 and all it took was a few public FCC inquiries to prompt three ISPs to migrate to less contested network management systems.  One would think that the FCC would have simply claimed credit and moved on, but three of the commissioners including Chairman Kevin Martin ruled that Comcast was guilty of anti-competitive practices in the Video on Demand (VoD) market when Comcast wasn’t being anti-competitive or deliberately malicious.

Comcast and the two other ISPs that employed TCP resets all migrated to new network management systems well before the FCC’s ruling against Comcast.  It is also notable that Comcast’s new system was ultimately deemed acceptable by the FCC and even Free Press.  The FCC had won full compliance with all three ISPs without ever taking a shot.  But instead of celebrating their victory, the FCC mischaracterized Comcast’s actions as an effort to stifle an Internet based Video on Demand (VoD) provider to favor their own VoD service when no blocking or malicious intent existed.

The FCC didn’t fine Comcast for their supposed anti-competitive practices and merely wanted them to file a report on compliance measures that had already been enacted.  It was almost as if the FCC didn’t expect Comcast to sue if they merely embarrassed them with unsubstantiated charges using nonexistent Title VI jurisdiction on VoD so long as they didn’t issue a fine.  Comcast sued anyways because they weren’t going to accept a ruling so bad that former FCC Chairman Michael Powell described as: “bad facts and bad cases make bad law”.

The FCC’s legal argument was so bad that they claimed Title VI authority to regulate Comcast’s practices involving VoD when Title VI expressly prohibited any authority over VoD.  The FCC arguments were so weak that the DC Circuit Court of Appeals had no choice but to rule against the FCC.  More details here on the DC Circuit ruling.

A better ruling against Comcast

In light of all the facts that I and many other expert witnesses presented at the hearings, it was clear that Comcast made mistakes but the purpose of their network management system wasn’t malicious and the problems associated with it were grossly exaggerated.  The FCC majority could have presented a more reasonable ruling that reflected all of the facts and it might have gone something like this:

We are pleased that Comcast has acknowledged the well publicized shortcomings of their previous network management system.  We understand that the intent was good but the implementation harmed some users disproportionately.  We are happy that Comcast has ultimately decided to listen to its customers, but it was unfortunate that much of the misunderstanding came from Comcast’s prolonged lack of transparency and misleading denials and perhaps the FTC would have something to say about that.  It was also unfortunate that Comcast decided to pack our hearings with a bus load of disinterested individuals which amplified an already high level of public distrust for Comcast.  We hope that Comcast will be more attuned to the needs of its customers who want unfettered open Internet access.  We are pleased to see that other ISPs have already learned from Comcast’s mistakes.

Now had the ruling been something like this, Comcast wouldn’t have liked it but they wouldn’t have the legal or moral authority to challenge it because it’s based on facts and reason.

Brief background on Comcast and BitTorrent

Three US based ISPs including Comcast were using a network management system that employed a very common technique called TCP resets to reduce upstream (upload) BitTorrent traffic along with some other P2P applications.  The use of TCP resets allowed the ISPs to quickly drop a system on the side of their network without the need to deeply integrate the system into the network making it much easier to deploy.  The system tried to minimize impact to BitTorrent by only pruning the BitTorrent seeders (which are dedicated uploaders who aren’t downloading the file because they have all of the file) but it left BitTorrent uploaders and downloaders alone.  This system largely under-penalized the majority of BitTorrent users at the expense of over-penalizing BitTorrent seeders.

Some advocacy groups and three of the 2008 FCC commissioners accused Comcast of using this system to impede competing Video on Demand (VoD) services like Vuze because the system might have prevented seeding, but Vuze has its own dedicated seed servers that allowed Vuze’s content to flow without any other seeders on the Internet.  Vuze might have argued that Comcast was depriving Vuze the ability to shift more of its seeding bandwidth costs to Comcast’s broadband network, but this argument hinges on a belief that Vuze has the right to shift its costs onto Comcast or any other broadband provider in the first place.  More background context and technical details in this article.

The bottom line

So why rehash all of this water under the bridge?  Because it is an important lesson that has been lost in all of the hysteria over the supposed loss of FCC authority.  The FCC never had to go to court in the first place because they had already won and they’re still winning.  Even after losing the case, the three ISPs that employed TCP resets against BitTorrent aren’t dusting off their old reset appliances because they were never trying to be malicious in the first place and they don’t intend to be now.  What the FCC lost was a meaningless ill-conceived case that they had already won and continue to have full compliance from ISPs they did and didn’t target despite the DC Circuit ruling.

The lesson here is that a sensible FCC never needs to go to the court in the first place over Net Neutrality to get everything they want.  A good regulator shouldn’t need to spend all its time in court because the courts should be the last resort.  This is precisely what the FCC did in the Madison River Communications VoIP blocking case where it merely issued a consent decree where Madison River “voluntarily” donated $15,000 to the U.S. Treasury.  No ISP wants to go to court and play such a high profile villain while tempting congress to slap them even harder and this dynamic has not changed.  In the rare case that the FCC does need to appear in court against a bad apple, the FCC needs to have the facts on their side and present a coherent case.