Federal Communications Commission chairman Kevin Martin says that Comcast Corp. used “blunt means to reduce peer-to-peer traffic by blocking certain traffic completely” but that the agency had not completed its investigation of the cable company’s broadband network management practices.
Martin was to discuss the FCC’s investigation of Comcast in testimony Tuesday morning before the Senate Commerce Committee during a hearing on “The Future of the Internet.” An advanced copy of Martin’s testimony was obtained by Multichannel News.
A few years ago, the FCC punished a phone company for blocking VoIP traffic. Martin suggested that precedent could be applied to Comcast.
“Contrary to some public claims about [the FCC’s] approach generally, for the [FCC] to take enforcement action against a telephone company for blocking and degrading a particular application but refuse to pursue enforcement action against a cable company blocking or degrading a particular application would unfairly favor the cable industry.
Comcast, Martin says, evidently deployed “Internet equipment from Sandvine or something similar that is widely known to be a relatively inexpensive, blunt means to reduce peer-to-peer traffic by blocking certain traffic completely.”
The market for such technology, Martin says, has “more modern equipment [that] can be finely tuned to slow traffic to certain speeds based on various levels of congestion.”
Martin says that after two public hearings -- at Harvard Law School in February and Stanford University on April 17 -- he had learned the following about Comcast’s actions.
(*) “Contrary to some claims, it does not appear that cable modem subscribers had the ability to do anything they wanted on the Internet. Specifically, based on the testimony we have received thus far, some users were not able to upload anything they wanted and were unable to fully use certain file sharing software from peer-to-peer networks.”
(*) “Contrary to some claims, it does not appear this network management technique is `“content agnostic.’ Indeed, Comcast has publicly stated that it will migrate to a “protocol” (content) agnostic approach to traffic management in the future, and thus conceded that the techniques currently in use are not `“content agnostic.’ ”
(*) “Contrary to some claims, it does not appear that this technique was used only to occasionally delay traffic at particular nodes suffering from network congestion at that time. Indeed, based on the testimony we have received thus far, this equipment is typically deployed over a wider geographic or system area and would therefore have impacted numerous nodes within a system simultaneously. Moreover, the equipment apparently used does not appear to have the ability to know when an individual cable segment is congested. It appears that this equipment blocks the uploads of at least a large portion of subscribers in that part of the network, regardless of the actual levels of congestion at that particular time.”
(*) “Finally, contrary to some claims, it is not clear when they will actually stop using their current approach. They claim that they will deploy this new solution by the end of the year but it is unclear whether they will be finished deploying their solution or just starting that migration. Indeed the question is not when they will begin using a new approach but if and when they are committing to stop using the old one.”
In his testimony, Martin indicated that the FCC should adopt a new standard of review for cases involving allegations of broadband network mismanagement in violation of the agency’s four principles adopted in 2005.
If the FCC finds that that a provider “arbitrarily blocks or degrades a particular application” or is “selectively identifying particular applications or content for differential treatment,” Martin says the FCC “should evaluate the practices with heightened scrutiny, with the network operator bearing the burden of demonstrating that the particular practice furthered an important interest, and that it was narrowly tailored to serve that interest.”
“Such an approach,” he says, “would not mean that any action taken against a particular application would automatically be a violation. Rather, it would trigger a more searching review of both the particular concern and whether that network management solution was tailored to resolve the particular harm identified to the network in as narrow a manner as possible.”
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