Objection! #5: The Case of the Cable Company and the Communications Commission

The gaming industry's a big business -- and sometimes, companies don't see eye-to-eye. And what happens when a dispute goes to court, and gamers get their grubby hands on fancy-sounding legal documents? Why, wild, inane, forum-fueled speculation, of course. That's where California-based corporate attorney and GameSpy writer Eric Neigher comes in. Objection! is your one-stop destination to learn what all that legalese means in plain English, straight from someone who knows the twisty-turny language of the law.



Introduction

Have you heard the term "net neutrality?" Do you know what it means? Chances are, you've got a vague idea; maybe an activist buddy or a passing piece of forum spam has piqued your interest. But -- if you're like most gamers -- you probably don't know exactly what it's all about. Heck, as a gamer, you may be all, "What do I even care about net neutrality?" Well, maybe you should know a bit more about the situation before you jump to conclusions, Mr. Jump-to-Conclusions-Man! So, I'm going to break it down for you, from a gamer's perspective.

Now, just a word of warning: I'm aware that (as with every political issue) some people hold very strong views on net neutrality. I'm not here to convince you to share my or anybody else's point of view on it, only to lay out the facts and help you understand the issue as it relates to gaming. That way, you can formulate your own opinion. Novel concept, right?

OK, so what is this thing called net neutrality? Here's the deal: The companies that provide Internet access for all of us -- our Internet Service Providers -- own and control the infrastructure (cables, servers, nodes, etc.) that allows the Internet to exist. However, this infrastructure and its concomitant ability to transfer data are limited resources: A given piece of cable can only push so much data through at a given time. As a result, traditionally, ISPs have charged consumers more money for faster connections. Now, however, as the amount of data transference continues to grow faster than the rate at which ISPs are able to build infrastructure, they're looking for other ways to spread costs and limit usage.

Their plan, in brief, is for ISPs to begin throttling the output speed of certain IP addresses and websites in order to save more bandwidth for the websites and web services that are in a given ISP's good graces, for whatever reason. So what gets you out of that ISP's good graces? Two things, primarily: One, your web service is associated with some less-than-on-the-up-and-up activity; and two, you didn't pay the ISP the premium service fees to get the really fast output.


Net neutrality, then, is the idea that ISPs should not be allowed to favor certain types of content, Internet throughput, etc., over others that they don't like -- but should instead be compelled by law to give every service the same bandwidth. Kinda like communism, but without the cool submarine movies. Anyway, the U.S. District Court for Washington, DC recently ruled that it's OK for ISPs to throttle or not throttle their bandwidth any way they want to. Well, OK, no -- they actually ruled that the FCC doesn't have the power to force ISPs to implement net neutrality. Practically speaking, then -- whether we believe in net neutrality or not -- without a regulatory body to force them, ISPs are going to do what they want with their own property.

Facts

So, what happened in this case was that Comcast -- the big ol' TV/phone/Internet provider, in a bid to save money, improve network stability, and generally crack down on illicit activity -- put a slowdown on anybody sharing files via peer-to-peer clients (specifically BitTorrent) over its network. People who weren't sharing files via peer-to-peer (those who were, say, downloading them from Amazon.com, or emailing them to a buddy via Gmail) were unaffected. Some dudes calling themselves Free Press, and some other dudes calling themselves Public Knowledge, tried to get the FCC to put a stop to Comcast's preferential treatment. When the FCC actually did try to put regulations in place, though, Comcast (after initially complying with the FCC's orders, just to cover its ass) sued the FCC, arguing that it didn't have jurisdiction over ISPs. Comcast argued some other stuff, too... but the District Court only considered the jurisdictional argument, as that was enough to kill the FCC's authority.


Why the Court agreed is, I think, probably outside the scope of this particular article... but feel free to check out the full text of the opinion. The long and short of it is, the Court didn't feel that the FCC had what's called "subject matter jurisdiction" over the case at hand. In other words, the FCC doesn't have the authority to regulate stuff that goes on over the Internet -- it's out of their domain. Get it? Domain. Frickin' funny. Anyway, since nobody else could conceivably oversee that kind of regulation (outside of Congress itself), that means -- should everything stay status quo -- that ISPs will be able to throttle bandwidth as they see fit. Hey, it's their property, right?

Now, all of this is interesting to know in a general sense, but how does it relate, specifically to gamers? Well, if you're just a guy who plays store-bought games on your perfectly legal PlayStation 3, and you never play anything but the single-player and don't download any third-party content of any kind, it probably doesn't affect you all that much. Hell, if you're that guy, living in 1990 probably doesn't affect you all that much. But every other gamer could probably conceive of three primary ways in which this type of throttling by ISPs could change the way they do things.

The first would be, of course, piracy -- this could seriously threaten the efficiency of that. The second would be massively multiplayer online games; in theory, ISPs could privilege bandwidth by really popular MMOs (like World of Warcraft) or other online games (like Halo: Reach's multiplayer) if the companies that ran those games were willing to cough up a little extra dough. Finally, speed throttling could be used to drive people to (and from) certain casual games that are played in a browser -- or, alternatively, on a portable device.