David Sohn of CDT makes the right points

Commenting on the pending FCC action against Comcast, the CDT’s David Sohn says most of what needs to be said:

In order to engage in enforcement, there needs to be either:

(1) An existing, articulated rule or standard against which to judge behavior;
(2) Authority for the enforcement body to adjudicate and issue rulings based on general notions of fairness/equity.

It is difficult to argue that number (1) is present here. The FCC expressly stated that its broadband principles are not rules. If they are not rules, then it is hard to see how the FCC can turn around and try to police violations of them as if they were . . . well . . . rules. Doing so would put the FCC on perilously shaky legal ground.

As for number (2), CDT believes that everyone with a stake in the Internet — which at the end of the day is pretty much everyone, period — should be extremely wary of any assertion of open-ended and highly discretionary FCC jurisdiction over broadband Internet service. Even those who may like what the FCC proposes regarding the Comcast question should consider that they may be far less happy with what some future FCC may do, once the door to largely unguided regulatory action is open. CDT believes that the FCC neither has nor should have open-ended authority to craft policies for the Internet out of whole cloth.

This is the problem with suggesting, as some commentators have, that Internet neutrality concerns could be addressed via case-by-case adjudication and enforcement rather than ex ante rules. You can’t adjudicate and gradually build up a body of common law unless there is some underlying standard to adjudicate against — or unless you have broad authority to make law from scratch. That’s why CDT continues to call for legislation in this area. Having the FCC initiate and craft the entire legal framework, without Congress setting the parameters, cedes too much authority to the agency.

It will be interesting to see how an eventual FCC order, if there is one, addresses the murky legal status of the FCC’s Policy Statement and what legal hook the agency tries to hang its action on.

One other thing I’d add is this: an ideal residential Internet access system needs to be managed in two different but equally important phases:

1) Allocate bandwidth fairly among competing accounts; and then

2) Prioritize streams within each account according to application requirements.

Phase 1 keeps you from being swamped by your neighbor, and keeps you from swamping him, and Phase 2 prevents your VoIP session from being swamped by your BitTorrent session.

The problem with the Comcast Sandvine system is that it skips phase 1 and simply does phase 2, application-level traffic shaping. And the problem with the FCC order that Chairman Martin is floating about is that it makes phase 2 shaping illegal. It’s incredibly useful to manage streams for each user as he would want them managed if he had direct control over them. I think future home gateways will empower users to do this, but in the meantime it’s desirable for the ISP to manage sessions appropriately.

The first rule of regulation should be “do no harm,” and on that basis Martin’s prescription is bad medicine.