FCC Issues Order Castigating Comcast On P2P

Agency Requires MSO To Cease 'Unreasonable Network Management Practices'

By Todd Spangler -- Multichannel News, 8/20/2008 2:41:00 PM

The Federal Communications Commission released the full text of an order Wednesday demanding that Comcast stop its "unreasonable network management practices" of interfering with peer-to-peer Internet applications, even as the operator has already committed to moving to a "protocol-agnostic" approach.
 
The 67-page order, adopted in a 3-2 vote by FCC commissioners Aug. 1, requires Comcast within 30 days to disclose the details of how it targeted P2P applications and submit a compliance plan describing how it intends to stop the practice by the end of the year.

The order does not impose any fines or damages on Comcast.

Asked for comment on the FCC order, Comcast senior director of corporate communications and government affairs Sena Fitzmaurice said the operator is “examining the order and evaluating our options.”

The FCC’s order comes after Comcast has already announced that it is migrating to a “protocol-agnostic” approach to managing its Internet bandwidth by the end of 2008, which will limit the bandwidth available to only the most excessive users. Comcast has also said it is working with BitTorrent and other peer-to-peer providers to make their applications run optimally on its network.

Comcast was accused of selectively “blocking” peer-to-peer uploads over its network and is separately the target of several lawsuits from disgruntled broadband subscribers, including one seeking class-action status.  The issue received national attention after the Associated Press published the results of its test that found Comcast temporarily delayed the transfer of digital copies of the Bible.

In Wednesday’s order, FCC chairman Kevin Martin compared the P2P management techniques employed by Comcast to the U.S. Postal Service stamping “return to sender” on mail it didn’t want to deliver.

“Today, the commission tells Comcast to stop, and to disclose to its subscribers how it is going to manage traffic on a going-forward basis,” Martin said in a statement accompanying the order. “We therefore take another important step to ensure that all consumers have unfettered access to the Internet.”

The FCC majority strongly objected to not only Comcast’s P2P throttling but also to what the agency viewed as insufficient notification to customers about the practice. The agency said the operator’s claim that it has always disclosed its network management practices to its customers was “simply untrue.”

“Although Comcast’s Terms of Use statement may have specified that its broadband Internet access service was subject to ‘speed and upstream and downstream rate limitations,’ such vague terms are of no practical utility to the average customer,” the FCC said.

Network neutrality supporters applauded the FCC order as a victory for consumer rights.

"This order marks a major milestone in Internet policy. For years, the FCC declared that it would take action against any Internet service provider caught violating the online rights guaranteed by the agency. Today, the commission has delivered on that promise,” Free Press policy director Ben Scott said in a statement.

The FCC was acting on a petition filed in November 2007 by public-interest groups asking the agency to declare Comcast in violation of the FCC’s Internet Policy Statement. Two activist organizations, Free Press and Public Knowledge, went further, appealing to the agency to impose a $195,000 fine for each subscriber affected by Comcast’s P2P management practices.

The agency denied the groups’ request to fine Comcast. In rebutting Comcast’s allegation that the FCC was taking an action amounting to “an abuse of discretion,” the FCC noted that it was not imposing fines or damages -- one of the criteria established by a U.S. Supreme Court ruling for determining such overreaching.

The FCC included an explanation for why it had authority to rule on the complaint under various federal regulations.

For example, it cited a section of the Telecommunications Act of 1996 which provides that the agency “shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” The agency ruled that, among other things, “the practice of degrading consumer ability to share or access video content effectively results in the limiting of ‘deployment’ of an ‘advanced telecommunications capability.’”

In a dissenting statement, Republican commissioner Robert McDowell said that the FCC, while it does have jurisdiction in general over these areas, does not have any rules governing Internet network management to enforce. Furthermore, McDowell noted, the commission did not intend for the Internet Policy Statement to serve as enforceable rules but as a statement of general policy guidelines.  

“In short, we have no rules to enforce,” McDowell said. “This matter would have had a better chance on appeal if we had put the horse before the cart and conducted a rulemaking, issued rules and then enforced them.”