So the FCC finally dealt with the Comcast net neutrality issue and issued a 3-2 decision castigating Comcast for doing whatever it did but not fining it:

Ruling on a complaint by Free Press and Public Knowledge as well as a petition for declaratory ruling, the Commission concluded that Comcast has unduly interfered with Internet users’ right to access the lawful Internet content and to use the applications of their choice. 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 problem is, these “rights” don’t exist - at least as a fact of law. Neither the FCC nor Congress has ever passed a ruling or legislation that says Comcast can’t do what it did. There have been various policy statements - especially the famous one about the four net freedoms - but those don’t carry the weight of law. So the FCC is essentially finding Comcast in contravention of a law and passing the law at the same time, which is exactly Comcast’s complaint, and one that’s echoed by the two Republican Commissioners - here’s Commissioner McDowell:

In short, we have no rules to enforce. This matter would have had a better chance at appeal if we had put the horse before the cart.

That’s an important secondary point - this will likely end up being simply a symbolic gesture because the appeals courts are bound to side with Comcast and the two Republicans - there was no law there to enforce and so Comcast had no way of knowing what it did was wrong. Which means as well as falling short in this particular case, it will also fail to set the precedent this is already being hailed as.

Now, I’m no shill for Comcast. As my previous posts on this topic show, however, I do have a certain amount of sympathy for its position. I do think it’s far more reasonable for a cable company to adopt traffic management policies to deal with occasional network congestion than to invest in a massive upgrade of its network to ensure that congestion never occurs. However, according to the evidence the FCC majority accepted to be true, Comcast throttled all P2P traffic all the time, regardless of congestion, which is unreasonable even if you think they have a right to throttle traffic when there is congestion. It’s not clear the FCC did any of its own research on this topic - it would have been hard to, since Comcast had discontinued the practice some time ago - but it seems to have taken various consumer rights groups’ word for it.

I still think the most reasonable approach to all this is to give ISPs - whether cable companies, telcos or wireless operators - the right to set their own reasonable use terms and make these clear to customers, including whatever network management policies the provider intends to apply in general terms, and then let customers decide whether they’re willing to put up with those or not. As I’ve mentioned before, this already applies in the case of running servers on consumer DSL lines, for example, and no-one seems to have objected to that.

However, it appears Kevin Martin has decided to step away from the set of principles he held when he first took this position and go with the popular flow as a bid to leave some kind - any kind - of legacy before he gets ditched as one of the first acts of an Obama presidency. The problem is that the decision is both wrong and unenforceable and so it will end up being remembered as a hollow gesture that did very little real good.