Comcast loses: FCC head slams company’s P2P filtering

Remember how Comcast this week told us that 1) the FCC’s “Internet policy statement” (PDF) had no legal force and 2) that the agency might not have the authority to enact such rules even if it wanted to? Those theories will soon be put to the test, as Republican FCC Chairman Kevin Martin now says he wants to rule against Comcast in the dispute over the company’s P2P upload throttling. Score one huge, precedent-setting win for net neutrality backers.
Martin stands up for “principles”

Martin broke the news Thursday evening by way of the Associated Press, telling them that “the Commission has adopted a set of principles that protects consumers’ access to the Internet. We found that Comcast’s actions in this instance violated our principles.”

Martin will need to attract at least two more votes to make his proposed order binding, but the two Democrats on the Commission have been staunch supporters of net neutrality principles and appear to be natural allies of the plan (read our recent interview with Commissioner Jonathan Adelstein).

According to the AP, Martin’s order would force Comcast to put an end to its discriminatory P2P throttling, give the FCC more details on the practice, and share more about its future network management plans.

The decision could be an historic one, but not for its actual effect on Comcast. The cable company has already announced plans to transition away from the current throttling regime to something that looks more at overall bandwidth use rather than particular applications. Trials in Pennsylvania are currently underway on the new system, set to be deployed by year’s end. Martin’s order would therefore not require the company to do anything new, but it would have to provide more detail about past and future practices.

Precedent

But the precedent this could set has ramifications far beyond the narrow matter of Comcast’s particular throttling scheme. Should the order go through, it would send a strong signal that the “four freedoms” outlined in the policy statement have teeth behind them, that these are more than “suggestions,” and that the principles of openness and consumer choice will guide the FCC’s approach to broadband. In case you’re one of the few who don’t have the principles committed verbatim to memory, here’s a recap (emphasis added):

* To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice
* To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement
* To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network
* To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers

At one level, FCC regulation based on broad principles rather than lengthy sets of technical rules is probably the preferred industry approach… if regulation at all is necessary. But the big ISPs, in particular, would rather self-regulate than be told what they have to do by the government, and we would be shocked harder if Martin’s order doesn’t find itself on trial in a DC courtroom in short order. (The final footnote in the policy statement notes explicitly that these are not “rules,” something likely to be the basis of a Comcast challenge.)

Free Press was one of the chief backers of the case against Comcast, and no love is lost between the two sides. Even before Martin’s decision was announced, Free Press general counsel Marvin Ammori wrote in a blog post on Thursday that “those following this issue closely know that Comcast has a honed lying method™ the same way a fine actor might have an ‘acting method.’” Subtle, this is not.

The rhetoric can be a bit simplistic, but there’s no doubt that Free Press has been one of the driving forces behind the improbable rise of “net neutrality.” A decade ago, such concerns would only have been the stuff of think-tank wonkery; today, musicians like Wilco, Bright Eyes, and Guster are releasing a benefit album to promote it.

In a statement sent out late Thursday night, Ammori summed up Free Press’ achievement in typical fashion. “Nine months ago, Comcast was exposed for blocking free choice on the Internet. At every turn, Comcast has denied blocking, lied to the public and tried to avoid being held accountable. We have presented an open and shut case that Comcast broke the law. The FCC now appears ready to take action on behalf of consumers. This is an historic test for whether the law will protect the open Internet. If the commission decisively rules against Comcast, it will be a remarkable victory for organized people over organized money.”
From Gulf to Arctic?

A similar procedure in under way in Canada, where regulators are looking at Bell Canada’s throttling of all P2P connections from 4:30pm to 2:00am every day, and the chair of the CRTC (Canada’s FCC equivalent) has already spoken publicly about his desire to hold a broad net neutrality consultation. Should the CRTC hand down a ruling against Bell Canada, traffic-shapers from the Gulf of Mexico to the Arctic circle will suddenly have serious incentives to develop innovative management techniques that apply holistically to user bandwidth, not to particular applications, protocols, or devices.

The possibility of such rules has already led ISPs and others to argue that misguided regulation might thwart the attempt to ensure that a user’s VoIP calls don’t buckle beneath heavy P2P traffic or HTTP video streaming; management and throttling don’t necessarily have to be anti-consumer. Fair enough. and hopefully the broad strokes that the FCC is using with regards to this issue won’t do anything to prevent discriminatory network management that users opt into. But when it comes to involuntary types of management and throttling, it should be up to consumers what bits they push through their pipes.

The FCC appears to feel the same way.
Update:

In a statement, Comcast’s senior director of Corporate Communications & Government Affairs, Sena Fitzmaurice, tells Ars that “the Commission has never before provided any guidance on what it means by ‘reasonable network management.’ Comcast’s customer service agreements and policies have always informed Comcast customers that broadband capacity is not unlimited, and that the network is managed for the benefit of all customers. Our website offers detailed information on our network management practices.”

Google has also weighed in today, saying that the order “will provide useful clarity on what types of practices are acceptable under the agency’s Internet freedom principles, and help ensure that today’s broadband networks remain open platforms to the Internet.” But Rick Whitt, the company’s senior telecom counsel, also says, “Let’s give credit to Comcast for its willingness to discuss, debate, and adjust its process for managing Internet traffic. As far as we can tell, Comcast undertook its network management practices out of an intention to reduce congestion on its local network, and the company’s recent agreements with BitTorrent, Pando, and Vonage are early signs of a productive ongoing dialogue within the Internet community.” – Arstechnica

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