An ex parte letter submitted to the FCC in the Comcast Kerfuffle – subject of strong criticism by TLF-friend and friendly sparring partner Harold Feld – got me thinking on another level about the FCC’s recent action against Comcast.

Among the accusations against Comcast is that it throttled a P2P conduit for movies because it’s also in the busines of delivering movies. The letter points out that colleges and universities, which have no similar interests, do the same things or take far blunter actions against P2P. It’s not a bad point, and it helps dispell the idea that Comcast was doing anything other than trying to provide good Internet service to the bulk of its customers.

Now, given that the letter summarizes the practices of many top universities, it throws in a provocative line: “If there is to be regulation, therefore, it must apply equally to all providers.” This suggests that the same regulation must apply to universities, which got Harold, Ars Technica, and a few others foaming.

The point of the letter was that network managers who don’t sell video services also degrade P2P. Point made. And from what I’ve seen of the reaction: point conceded. Comcast’s network management wasn’t motivated by an anti-competitive impulse.

But still, Feld seemed to argue, Comcast doesn’t get to do that because . . . it’s Comcast. Or something. It’s this blindness to a real legal justification or a real distinction between Comcast and other Internet service providers that I think has him walking hand-in-hand with the FCC into the NCTA’s trap.

The paragraph prior to the provocative line suggesting regulation of universities contains this sentence: “Allowing some Internet service providers to manage P2P traffic – much less to engage in complete blocking of P2P traffic – while prohibiting others from doing so would be arbitrary and capricious.” This is an administrative-law term of art – “arbitrary and capricious.” The use of it tells us that NCTA or Comcast will challenge the FCC’s decision to regulate only one provider of Internet access without regulating all similarly situated.

But Comcast is under a different regulatory regime!, says Harold and the others. Not in an enforcement of this “broad policy statement” thing-y. The FCC is claming free rein to regulate – not authority based firmly in statute – and if it can throw that rein over cable ISPs, it can throw that rein over universities, over Starbucks, and over the open wi-fi node in Harold’s house.

Now, given the free rein that the FCC is asserting, there is a darn good argument that it’s arbitrary (and “capricious”) to regulate only cable ISPs or commercial ISPs in this way. The FCC has to regulate the whole damn Internet this way if it’s going to regulate Comcast.

Is it the best argument ever? Nope. But it’s good enough for what FCC Chairman Kevin Martin wants to do.

Wait. What Kevin Martin wants to do? No, Jim, it’s the NCTA that’s setting the trap.

Au contraire, my inner voice. It’s Kevin Martin. He’s crafty.

By instituting this weird, weak, and barely legal regulation, Kevin Martin will get ‘net neutrality regulation bottled up in the courts for – what – the next five years? By that time, there’s a decent chance of there being more competition among ISPs. Projects like Broadband Census and NNSquad may have changed the product and market landscape. The political landscape will have shifted in exciting new ways. And when the FCC loses in the D.C. Circuit (yet again), the issue returns to a Congress where advocates of Internet regulation have moved to new issues and gotten rusty on net neutrality regulation. It’ll be another three or four years after the FCC loses before their net neutrality regulation efforts can get a head of steam.

So, has Kevin Martin deftly disposed of the ‘net neutrality issue for the next decade? My theory is plausible, though I know some would dispute it. Adam Thierer would undoubtedly call it “absurd” – but he puts that adjective on just about everything.

Net neutrality regulation wasn’t even close to getting through Congress, Adam argued to me recently, and Martin is motivated by his hatred of Comcast and the cable industry, along with his political aspirations. The former point is the strongest, but it’s a matter of perception. What I know of Chairman Martin is not a wild-eyed zealot or a hater, but a planner and careful thinker. Regulating Comcast doesn’t really redound to his political benefit in any meaningful way, and his political aspirations are doomed if he thinks it does.

So that’s my theory, and I’m stickin’ to it: Kevin Martin has set back net neutrality regulaton by a decade – by letting the camel’s nose under the tent.

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