Sidecut Reports

With a disclaimer that we here at Sidecut Reports are not lawyers, we nevertheless offer you our speed-reading analysis of the FCC’s full order in the Comcast-BitTorrent case. While most of the top-level details have been known since the FCC’s Aug. 1 vote, the full order does contain a few nuggets we were able to find that may raise some new hackles — while emphatically supporting our opinion that this order is just the start of Phase II of the network neutrality debate, which should get fully underway in 2009.

While Comcast is busy publicizing its own plans for the future (to delay Internet traffic of heavy users), the most interesting information that we see the FCC’s order providing is its request (on Page 33) for Comcast to disclose exactly what kind of equipment it used in its BitTorrent-related management motions, when it was employed, under what circumstances it was used, how it was configured, and where it was deployed. Like we said earlier, we’re not lawyers but it’s probably not hard to guess that disclosing such a granular level of details about its network operations isn’t high on Comcast’s desired to-do list, and will likely be one area that the cable giant will challenge legally.

Or at least try to keep sealed, should Comcast decide not to challenge the FCC’s order in court. While some knowledgeable folks think that a Comcast appeal is a given, several sources we’ve talked to (none at Comcast) note that getting this particular relatively toothless order overturned may lead to some quick rulemaking next year that gives the FCC much firmer legal ground to police such actions. So is the devil you know better than the one you don’t? Fightin’ Joe Waz, the next steps are up to you.

Reading the order so you don’t have to: Feel free to skip the first 22 pages if you already know what this whole mess is about, and could care less about how the FCC justifies its jurisdiction in the case; that’s how long it takes the commission to set the scene, with lots and lots of footnotes that just make these things so hard to read. On page 23 we finally get to the meat, under the title “Resolving the Dispute.” This is where the FCC gets to rip Comcast’s saying that delaying packets isn’t blocking — “We thus find Comcast’s verbal gymnastics both unpersuasive and beside the point.” Smack!

Page 32 is where the most interesting stuff starts — as in, the Remedy. On page 33 you’ll find the “give us all your info” request, along with the “cease and desist” threats if Comcast doesn’t abide by the FCC’s ruling. (You wonder how the FCC would enforce this — “Mr. Roberts, tear down this coax!“) After that it’s just appendixes and bloviating by the commissioners, as if their words here mean more than their votes. Sidecut Take: Not worth your time.

What is worth reading if you need to know more about net neutrality is our recent report, Net Neutrality Phase II: The Battle of 2009. We promise, no footnotes to make you cry as you try to read. And a fun Top 10 list at the end! Order your copy today.

Now that our serious work is out of the way, here’s a quick take on the non-attributed, behind-the-scenes, from-the-hallways-or-maybe-even-the-restrooms stuff we heard at the Silicon Flatirons conference in Boulder last weekend:

Where’s AT&T? Too busy filtering traffic? Too bad reps from Ma Bell weren’t on hand in Boulder, since the company’s pledge to sift through all its traffic for possible copyright violations seemed to be part of every panel discussion, whether it was part of the topic or not. Since this was a conference mainly of lawyers, the main question seemed to be whether or not AT&T was setting itself up for legal liabilities by pledging to do deep-packet inspection on all bits running across its network. (At one point we were worried that Tim Wu was going to charge the stage in his no-need-for-a-microphone back-and-forth exchange with panelist Mark Lemley. But things calmed down.)

In the end, there seemed to be no good answer (though Level 3 CEO Jim Crowe told his lunch table that his company was legally afraid to do such inspections), especially since nobody from AT&T was around. “It doesn’t really matter if they would be guilty or not,” noted one men’s room pontificator. “No court would convict them of it anyway.” Nothing like a good cynical note to close it.

(At any rate, AT&T did sponsor the Sunday-night beer-n-wine reception, where on their dime we had a tasty 90 Shilling. Thanks!)

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