Further Thoughts on the Comcast Decision

I’ve been following the aftermath of Friday’s FCC decision (PDF of press release) sanctioning Comcast for discriminating against P2P traffic.

The public interest community is elated, as it should be. This was indeed a huge and surprising victory against a well-funded incumbent. Kevin Martin went along to serve his own interests, but things only got to this point because Free Press and its allies generated so much political pressure. There is a genuine movement now promoting the open Internet. That’s what has changed for the better since I started advocating broadband open access in 1999.

As I indicated in my previous post, I’m worried that Martin’s real goal is to limit network neutrality. The way to prevent that is to call his bluff, and keep the pressure on. The final text of the order hasn’t been released, because it’s probably still being negotiated among the FCC Commissioners. The specifics of how the Commission justifies its decisions may make a difference in the court challenge and legislative fights to come. As I expected, network operators are already working to position the Comcast decision as a barrier to further action.

Along the same lines, there’s an important legal distinction to emphasize. In my last post, I expressed concern that the Comcast order would be overturned on procedural grounds. That is different from the issue of FCC jurisdiction. As I said, I think the FCC has sufficient legal authority to address network neutrality. The Communications Act gives the FCC broad jurisdiction, and the Supreme Court’s Brand X decision strongly suggested that it could mandate non-discriminatory access for broadband networks. Whatever happens on the procedural challenges to the Comcast order, jurisdiction will set the ground-rules for how the next FCC and Congress address broadband openness.

For those who support network neutrality, Friday’s vote isn’t the end; it’s just the beginning. That’s what I was trying to highlight in my prior post. I’m worried about how things may play out, but that depends on what everyone does next. The long-term question is how to set the terms of engagement between those who operate networks and those who use them, in ways that promote competitive innovation all around.