ReasonedResponse.com

As the end of his term as Chairman of the FCC looms, I am becoming more comfortable with Kevin Martin and his style.  In fact, I'm downright tickled with his recent handling of the "network management" flap and its demonstration of how well the system works.

The furor over using forged TCP reset packages to shape traffic on Comcast's network clearly presented a legitimate question:  To what degree are such actions in the best interests of consumers, and to what degree do they violate the spirit and letter of the Principles adopted by the FCC in 2005?

The way the process is supposed to work is that such questions are first handled directly between the consumer and the broadband provider, based on terms of service and commercial agreements.  When this first step does not resolve the issue, it gets elevated to the FCC.  Which it did.

Here's where things get sticky, because this legitimate issue of consumer rights got tangled in the efforts of a lunatic minority to force the FCC to adopt new and outrageous regulations for the Internet.   This minority of roughly one one-thousandth of one percent of Internet users in the US sought to use this legitimate inquiry to bully the FCC into changing its principles into hard regulation.  This would then enable a handful of lobbyists to "game the system" whenever they want by endlessly accusing broadband companies of "violations."

The FCC knew there was a potential for the Principles to be abused.  That's why they clearly stated at the time of their adoption that the Principles did not and would not be regulatory rules.  This way, the Commission has the flexibility to address each situation as it occurs.  It was a wise move in 2005, and remains so today. 

So the issue is taken to the FCC for consideration, and things get tricky because the pro-regulation minority was howling for a one-size-fits-all regulatory quick fix they could more easily use for their own political purposes.  Kevin Martin had to weave his way through this minefield. 

But then things spun out of control at Comcast.

I've worked for enough large corporations, both inside and as an advisor, to know that things can pile up during a crisis.  Good intentions turn bad, innocent actions are in retrospect portrayed as sinister, and the whole organization is left wondering what the heck happened.  If you want proof, just consider the Exxon Valdez oil spill.

Whatever the reason, it appears that Comcast first tried to duck the issue, then prevaricate its way out of the issue, and then compound its public relations problems by derailing the FCC's hearing in Boston, filling the public seats with homeless people.

Which, of course, was the cue for Congress to open its own witch hunt over the issue.

In short order, Chairman Martin faced the task of protecting the integrity of the consumer protection process from both the raging minority of pro-regulation loons and the Congress; while dealing with the questions of policy that were presented in the first place; while keeping intact the consumer Principles enacted by the FCC; and providing support for the legitimate needs of broadband providers to manage their networks.  Oh, and punish the guilty if there were any.

It wasn't easy.  It took guts, a steel-reinforced loin cloth, a commitment to principle and a belief in the power of the process to listen to the loons without over-reacting, stare down Congress and push to a resolution.  But in the aftermath, here's the scorecard:

*  Everyone got their day in court in a hearing before the FCC.

*  The Commission clearly upheld the need for and benefits of network management, refusing to buy into the vision of a "wild west" internet ruled by anarchy. 

*  Chairman Martin held his own before Congress, outlining the policies clearly.

The process is not complete, of course.  Martin has indicated he will take action against Comcast for its behavior, though he has not specified what action.  And there remains the question of how this might impact other service providers and their efforts at traffic shaping.

There are other benefits as well.  Consumers learned more about how a handful of users are taking more than their fair share of bandwidth.  We all learned more about the progress being made to accommodate file sharing on broadband networks, through such efforts as traffic shaping and P4P.  And the process drew attention to the need for more transparency in commercial contracts and user agreements, so that both sides more clearly understand the terms of service.

Best of all, the process was validated.  It works, and we don't need draconian regulation of the Internet to assure that problems can be handled effectively.

Kevin Martin, the lame-duck Chairman of the FCC, refused to be bullied by either the loons or the Congress,  His performance through it all was calm, deliberate and purposeful.  And that's not bad at all.