In our coverage of debates over the Federal Communications Commission's authority to enforce its proposed Internet nondiscrimination rules, we've taken a look at pro and con arguments over whether Congress gave the agency net neutrality powers. But the question of statutory authority isn't the only challenge facing the FCC's suggested regulations—rules that would sanction ISPs for discriminating against applications and require transparency in their network management practices.

Critics also argue that US incidents where ISPs engaged in questionable network behavior have been so few that setting up tougher standards amounts to "regulation by anecdote."

"I am not convinced that there is a sufficient record to establish that a problem exists that should be addressed by Commission rules," warned new Commissioner Meredith Attwell Baker in her dissent to the FCC's proposals. "We should not adopt regulations to address anecdotes where there is no fact-based evidence that persuasively demonstrates the presence of a problem."

So which alleged "anecdotes" are we talking about here? Two stand out in the United States. The first would (famously) be FCC sanctions in August of 2008 against Comcast for slowing down BitTorrent file sharing. The second was the 2005 Madison River Communications case, in which the North Carolina phone company/ISP was accused of blocking Vonnage VoIP traffic, and eventually settled with the FCC over the matter.

The question is whether these incidents are sufficient to merit further action. It's a tough problem, for which we have summoned some unconventional help. Welcome to the Ars Technica Policy Debate Theatre. Please switch off your cell phones; our performance is about to begin.

Ask Nancy and Fred

Let's conjure a dialog between two fictional characters: Nancy Regulator and Freddy Freemarket. They're both smart people who hang out at a neighborhood Internet cafe. Freddy works at a locally owned computer/network repair center that does contracting around the city. Nancy does Web and tech support for a big nonprofit. They love technology and agree on a lot of things: the FCC's indecency rules (stupid); medicinal marijuana (organic medicine!); and each other (they're dating).

But they draw the line at the Commission's proposed net neutrality rules. Social liberal Nancy strongly supports them. Libertarian Freddy thinks they represent a dangerous and unnecessary extension of government. It's Sunday morning. They've just finished reading the PDF of the FCC's proposals and Attwell's dissent.

"That settles it as far as I'm concerned," Freddy says, looking up from his Ubuntu laptop. "There's no case for action here."

"Why not?" Nancy asks, skeptically, while bookmarking the Notice of Proposed Rulemaking on her Safari browser.

"Because this entire proposal is based on exactly what Baker describes: anecdotes rather than comprehensive fact-based phenomena."

Nancy opens the lid on her MacBook and downs a gulp of coffee. "C'mon Freddy," she says. "The Comcast case wasn't an anecdote. It was a full-on complaint that affected millions. Associated Press and the Electronic Frontier Foundation documented the problems when BitTorrent users tried to share the King James Bible. The FCC held two hearings on the issue at Harvard and Stanford. Even Comcast admitted that it was engaging in selective slowdowns of uploads."

While talking, she grabs a definition of 'anecdote' off the 'Net. "Look," she continues. "Merriam-Webster defines an anecdote as 'a usually short narrative of an interesting, amusing, or biographical incident.' How is the Comcast case an anecdote?"

"Because it was based on anecdotes," Freddy quickly responds. "It was based on the narrative accounts of various individuals who offered the agency the results of their experiences with BitTorrent and Gnutella as Comcast ISP users. It was not based on an extensive hands-on investigation initiated and conducted by the FCC."

Open and shut

This stops Nancy for a few seconds, but she quickly recoups. "So was the Madison River case an anecdote?" she shoots back.

Now it's time for Freddy to pause. "Well, not exactly..." he begins.

"That's right," Nancy says, triumphant. "It was a case in which an ISP was caught red handed blocking VoIP traffic, paid the FCC $15,000, and promised not to do it any more. That's not an anecdote, it's an open-and-shut case with big implications for Internet telephony."

"Yes," Freddy notes, "an open-and-shut case that was resolved without any new net neutrality rules."

"But—" Nancy interjects, "something that you would agree constitutes more than a short incident."

"Ok, fine. But the FCC didn't need any additional regulations to resolve the matter," Freddy reiterates. "That's the bottom line here. Right?"

"Well, not exactly," Nancy counters. "The reason why the FCC didn't need to issue an Order based on new rules was because Madison River went along with a voluntary consent decree."

Freddy smiles. "Which is why..." he continues with a grin, "the Madison River case can be regarded as an anecdote. It was an incident which the FCC and Madison settled by agreeing to agree to the facts!"

Call them what you want



Nancy looks at Freddy, her eyes squinting. He is obviously very satisfied with himself.

"Freddy dear..." she says, folding her arms. "So Madison River and Comcast are both anecdotes. Correct?"

"You got it, Nance," he declares, stretching.

"So what wouldn't represent an anecdote?" Nancy asks. "A full-on government investigation of Comcast's network management practices run by the FCC's engineers?"

Sure, Freddy responds.

"Except you are a libertarian, Freddy!" she parries. "You don't trust the government! So there's no evidence that wouldn't constitute an anecdote in your book!"

"Yeah, well, call them whatever you want, I just think we should see far more stories of harm before taking significant action," he says. "Even the most well-intentioned of regulators aren't immune from unintended consequences."

Nancy concedes the point. "Draw?"

"Draw," declares Freddy.

But as our fictional couple's conversation moves on to the evening's dinner and movie plans, we're still left with the nonfictional problem du jour. What constitutes real evidence, the kind that justifies the FCC making substantial rules to protect the 'Net? And how much of that evidence does the government need to act? Can it surmise that the data it has justifies anticipatory action? If so, under what circumstances?

FCC Chairman Julius Genachowski has promised a "data-driven" process at the agency, but as our dialogue reminds us, it's easy to look at the same bits of data and come to very different conclusions about what ought to be done.