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Filtering and the FCC, Part II - January 16, 2008

FCC chairman Kevin Martin said Tuesday that he has had "general discussions" with content owners and network operators about the interaction of content filtering technology and the commission's Internet policy statement, but has not yet formed any judgment about the specific questions at the heart of the agency's investigation of Comcast over its alleged throttling of BitTorrent traffic.

In a briefing for reporters at FCC headquarters to review the commission's priorities for the coming year, Martin stuck to previous statements about the need for transparency on the part of operators in how they manage the flow of bits on their networks. "I've said before that there may be a need for legitimate network management practices but operators need to do it in an open and transparent way," he said Tuesday.

He also reiterated is belief that Network neutrality legislation by Congress is not necessary because the FCC already has the authority it needs to enforce neutrality principles.

Whether the practice of discriminating among bits on the network based on their content falls within the legal purview of the FCC, however, as proponents of filtering are seeking, may be another matter. In general, the FCC's authority to regulate content is very limited, for a host of reasons. Given the realities of peer-to-peer traffic on the Internet, it's going to be very hard to tease apart content-based filtering and "bandwidth management."

In comments to reporters at CES, NBC Universal general counsel Rick Cotton and AT&T VP of legal and external affairs Jim Cicconi, explicitly linked the issues of content-based filtering and network management.

Addressing the impact of illegal peer-to-peer traffic on ISPs, Cicconi said, “It’s a burden to our network—and by and large it’s uncompensated traffic—it burdens our others customers because it slows down the network. It’s really a burden to the whole Internet ecosystem.”

That's essentially the same argument Comcast made with respect to its "management" of BitTorrent traffic.

Now, AT&T is looking for technological means to block they type of content that makes up much of that burdensome traffic.

"The fact is that the volume of peer-to-peer traffic is simply overwhelming," Cotton said at CES. "There is a status quo that is untenable. Something will have to change."

Postscript: Cotton's online debate with Columbia University Law School professor Timothy Wu about filtering, fair use and other issues continued Wednesday on the Bits blog at NYTimes.com.
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