Dissenting FCC Commissioners Rip Comcast Decision


In his written opinion regarding his dissention, FCC Commissioner Robert McDowell said that while he agrees that the agency has jurisdiction regarding information carriers in general, "We do not have any rules governing Internet network management to enforce."

"For the first time in Internet history, we say 'goodbye' to the era of collaboration that served the Internet community and consumers so well for so long, and we say 'hello' to unneeded regulation and all of its unintended consequences," said McDowell.

The other dissenting commissioner, Deborah Tate, was less harsh in her written opinion, but also took the FCC to task for what she believes is undue regulation.

"Rather than assuming the role of 'World Wide Web Enforcer,' perhaps the best way for the FCC to fulfill our duties under Internet Policy Statement would be to assume the role of mediator or arbitrator, helping to facilitate agreements among the various sectors of the broadband Internet industry," Tate said in a statement.

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McDowell also complained that he and Tate were given little time to review the FCC's position regarding Comcast.

"Commissioner Tate and I received the current version of the order at 7 p.m. last night, with about half of its content added or modified," McDowell said. "As a result, even after my office reviewed this new draft into the wee hours of the morning, I can only render a partial analysis."

Three FCC Commissioners -- Kevin Martin, Michael Copps and Jonathan Adelstein -- voted that Comcast "unduly interfered" with Internet users' right to access the lawful Internet content.

"Specifically, the Commission found that Comcast had deployed equipment throughout its network to monitor the content of its customers' Internet connections and selectively block specific types of connections known as peer-to-peer connections," the FCC said in a statement.

In his statement, McDowell called the Comcast complaint "procedurally deficient."

"The truth is the FCC does not know what Comcast did or did not do," McDowell said. "The evidence in the record is thin and conflicting. All we have to rely on are the apparently unsigned declarations of three individuals representing the complainant's view, some press reports, and the conflicting declaration of a Comcast employee."

In her opinion, Tate said that the FCC did not need to take such an "interventionist" approach, and thought it unnecessary given that industry-wide actions were already underway by self-governing groups such as The Internet Society, The Internet Engineering Task Force and The Internet Architecture Board.

McDowell concurred, saying, "The Internet has been governed in a bottom-up "wiki" manner rather than a top-down government-knows-best style. The Internet has flourished as a result."

"For the first time, today our government is choosing regulation over collaboration when it comes to Internet governance," said McDowell. "The majority has thrust politicians and bureaucrats into engineering decisions. It will be interesting to see how the FCC will handle its newly created power because, as an institution, we are incapable of deciding any issue in the nanoseconds of Internet time."

McDowell also questioned the extent of the impact the FCC's decision would have on other Internet issues and if there would be far-reaching effects on an international level.

"Two things are for sure, this debate will continue, and the FCC has generated more questions than it has answered," McDowell said.