Federal Communications Commissioner Chair Kevin Martin ascended to the podium at Thursday's hearing on net neutrality, sounding even more rushed and befuddled than usual. The FCC "did also invite the carriers to participate in today's event as well, several weeks ago," Martin hurriedly explained at Stanford University's Dinkelspiel Auditorium. "We did reach out to Comcast, who declined. We reached out to Time Warner, to Cable Labs, to AT&T."

In fact, Martin added, the FCC invited Comcast yet again after it announced its "P2P bill of rights and responsibilities" in partnership with Pando Networks—all to no avail. "So I just want to make sure that everyone understands that we tried to make this as open and as transparent as possible."

It was just as well. The absence of the big carriers—especially the aggressive and ever-maneuvering Comcast—allowed a dialogue to take place at Stanford. A conversation emerged in which the FCC's key players on this complex issue laid out their visions for the agency's oversight of what ISPs call "network management" and critics call the crude blocking of file sharing applications.

Unlike the agency's first hearing, held at Harvard Law School on February 25, this time the Commissioners were up front about what they think the agency should do or not do about the ISP network management problem. First came Democrat Michael Copps, then Martin's sometimes Republican ally Robert M. McDowell. Finally the Chair disclosed his middle-of-the-road map for the Internet's regulatory future.

Left and Right



Commissioner Michael Copps

Copps followed Martin's apologia, all fire and brimstone. "Let's look at it from an inventor's perspective," Copps explained. Will the broadband pipes for which they develop applications be open to their ideas? "Inventors and creators need to know, up front, that they have the right to innovate without going on bended knee to seek permission from a few who have amassed too much control in their own hands," he said.

The time has come, Copps declared, to beef up the FCC's 2005 Internet Policy Statement with an "enforceable principle of non-discrimination." Something that makes it clear that "we will not tolerate unreasonable discrimination by network operators," bolstered by enforcement rules "to make sure that anyone with other ideas isn't going to get away with them."

The FCC's senior Democrat took a breath. He conceded that what he advocates won't be easy to accomplish. "These are evolving technologies and sometimes the line between reasonable network management and outright discrimination can be less than crystal clear," Copps explained.

But that was it for diplomacy. "I can tell you this," Copps darkly warned, his right hand slicing the air, "if everyone knew the FCC was on the job, that we had forthrightly staked out our principles,that everyone knew we would deal with any and all complaints that came in, and that those who do discriminate will be punished, word would get out pretty fast that no one should be messing around with the openness of the 'Net."

Next came Robert M. McDowell, a former telecom lobbyist who advocated for Comcast better than the cable giant ever could for itself. McDowell defended Comcast's intentions without any of the bellicosity of Comcast vice president David Cohen, star performer at the FCC's Harvard hearing. If the ISP truly wanted to interfere with P2P file sharing, wouldn't it interfere with downloads, not just uploads as Comcast claims? McDowell asked. Wouldn't it interfere with videos as well?

The United States is not the only country that suffers from "P2P congestion," McDowell insisted. He pointed to Japan, with a far more powerful broadband network than the United States. "A mere one percent of Japanese users consume more than half of the broadband capacity in that nation," the Commissioner claimed."With widespread 100Mbps service across Japan, the lesson here is that substantially more bandwidth alone in the last mile does not solve the P2P congestion problem. Something more must be done."

That something, for McDowell, are the alliances and partnerships emerging as the FCC investigates the problem: the Comcast/BitTorrent agreement and the P4P working group. "State intrusion into these partnerships will only inhibit future constructive endeavors," McDowell concluded. "So to those who argue for more government control, I say be careful what you wish for."

Martin's center

Then Martin returned with his hints of what might appear in an FCC Order on the issue at hand. The agency has the authority to deal with the complaints before it about Comcast and other ISPs, Martin insisted. In the future, the FCC should look towards "several critical factors" in developing an enforcement policy.

First, does the ISP honestly disclose its network management practices? "There must be adequate disclosure by the network operators of the particular traffic management tools being used," Martin said, "not only to consumers," but "to the designers of various applications and to entrepreneurs." Application developers must know "what will and will not work" on the broadband pipes for which they design new devices.

A "second hallmark" of reasonable network management practices "is whether there is arbitrary blocking or degrading of a particular application," Martin continued. "As we move into an era in which network operators are taking particular actions against individual applications or content, we need to evaluate those under stricter sets of scrutiny to make sure that whatever actions they're taking are actually furthering a legitimate purpose, and that their actions are narrowly tailored to serving that legitimate purpose."

Martin's brief comments fell far short of Copps' call for an overarching and enforceable net neutrality policy statement. But they implied a much more critical and regulatory stance than McDowell, who all but urged the agency to walk away from the problem.

Net neutrality, conservative Christian style

With these positions staked out came an eloquent, and, as always, elaborately PowerPointed set of remarks from Stanford's Lawrence Lessig, followed by two panels of activists, scholars, engineers and entrepreneurs. But the second half of the hearing was overshadowed by the clarity with which the agency's Commissioners outlined what they wanted and how far they were willing to go on this issue.

Perhaps the most interesting and unexpected testimony came from Roberta Combs of the Christian Coalition of America, founded by none other than Pat Robertson.The group's agenda includes the continued banning of stem cell research, gay marriage, and the extension of President Bush's tax cuts, scheduled to expire in several years.

"Use of the Internet has allowed the Christian coalition to amplify the voices of millions of hard working, pro-family Americans, in a way that has revolutionized their ability to be heard and to engage in the political process," Combs told the Commission. The Internet offers a voice "to even the most modest members of our society to disseminate ideals on a scale traditionally reserved only for the most powerful."

Then Combs laid into Comcast, recapping the Associated Press' determination last year that the ISP blocked transmission of a digital version of the King James Bible. "Unfortunately, in the last six months, we have seen network operators block political speech, block content, and block the most popular applications on the Internet," she noted. "If Comcast were to create a Christian Family Channel, would the FCC allow it to block access to a competing product from the Christian Coalition that was distributed by a BitTorrent application?"

Combs received a big round of applause for her remarks. Nobody on the Commission answered her question during the panel's QA period.

Further reading:

(Kevin Martin has yet to post his comments on the FCC's web site)