IP Democracy: FCC to Comcast: You Stink and You Lie

The FCC today issued the full text (Word) of its order punishing Comcast for its throttling of P2P applications. The very strongly worded document minces few words as it assesses Comcast's claims that the throttling constitutes "reasonable network management" practices.

The FCC confidently concludes that Comcast's practice is discriminatory and hence runs afoul of its 1995 2005 Internet policy statement.

The record leaves no doubt that Comcast’s network management practices discriminate among applications and protocols rather than treating all equally. To reiterate: Comcast has deployed equipment across its networks that monitors its customers’ TCP connections using deep packet inspection to determine how many connections are peer-to-peer uploads. When Comcast judges that there are too many peer-to-peer uploads in a given area, Comcast’s equipment terminates some of those connections by sending RST [reset] packets.

Comcast's selective interference of Internet traffic stops consumers from using applications of their choice and discourages the development of technologies that can maximize users' control over the information they want to receive, more violations of the FCC's Internet policy, the order concludes.

As to whether this interference constitutes reasonable network management, which is permitted under the policy, the FCC sees no rationale for the throttling and accuses Comcast of "verbal gymnastics" to justify the practice.

Comcast tries to avoid this result by arguing that it only delays peer-to-peer applications, and that the Internet Policy Statement, properly read, prohibits the blocking of user applications and content, but not mere delays. We do not agree with Comcast’s characterization and instead find that the company has engaged in blocking. As one expert explains: “It is never correct to say that Comcast has delayed P2P packets or P2P sessions, because the P2P traffic will never flow again unless the end system initiates a new session to the same device, even though it now believes that device is unable to continue a transfer. The argument that terminating a P2P session is only delaying because a device may attempt to initiate a new session some time later is absurd. By this incorrect argument, there is no such thing as call blocking; there is only delaying.

The FCC all but calls Comcast a liar when recounting the history of the controversy that led to this order.

When first confronted with these press reports [of P2P problems on Comcast's network], Comcast -- the nation’s second largest provider of broadband Internet access services -- misleadingly disclaimed any responsibility for the customers’ problems...[but following tests by the AP] Comcast changed its account and admitted that it targets peer-to-peer traffic for interference.

Even though Comcast claimed that it implemented this interference policy during periods of heavy congestion, "Comcast changed its story yet again" after being confronted with contradictory evidence, the order states, admitting that its P2P management is triggered regardless of the level of overall network congestion.

The FCC also accuses Comcast of being slippery when it comes to notifying customers of its network management practices. Comcast contends that its Terms of Use statement informs consumers that there might be upstream and downstream rate limitations and that this constitutes notification. Not so fast, the FCC argues. "Comcast’s claim that it has always disclosed its network management practices to its customers is simply untrue," the order states, adding that no one can infer from this language that P2P traffic could get throttled.

Although Comcast ultimately revised its Terms of Use to include more specific information about P2P, "Comcast’s first reaction to allegations of discriminatory treatment was not honesty, but at best misdirection and obfuscation. If Comcast actually believed its practices were reasonable, it should not have behaved in this manner," the order states.

More than half of the order is devoted to whether the FCC has legal jurisdiction to order Comcast to stop its P2P practices and force the operator to offer details about its replacement method for dealing with Internet traffic, a so-called "protocol agnostic" management system. Comcast has argued, and independent communications attorneys tend to agree, that absent a clear-cut Congressional mandate or some other strong legal directive, the FCC doesn't have the authority to impose regulatory obligations related to Internet service providers.

The FCC offers a list of complex, and often attenuated, legal rationales for why it does indeed have the authority to issue such an order, starting with the fact that Internet provisions in the 1996 Telecom Act were inscribed into section 230 of the Communications Act of 1934, "the very same Act that established this Commission as the federal agency entrusted with “regulating interstate and foreign commerce in communication by wire."

Aside from this extremely broad Section 230 authority, the FCC cites six other separate statutory provisions that gives it leeway to adopt regulations related to the Internet:

---Section 1 of the Communications Act, which instructs the FCC to make communications services as widely available as possible at reasonable prices;

---Section 201 of the Act, which makes unlawful common carrier practices that pump up prices -- the FCC says Comcast is imposing costs on DSL providers by diverting P2P traffic away from its own networks;

---Section 706 of the Act, which directs the FCC to encourage deployment of advanced communications services -- the FCC says Comcast is limiting the development of P2P and perhaps retarding the take-rate for broadband services;

---Section 256 of the Act, which promotes accessiblity to public telecommunications networks -- the FCC says that even though Comcast's cable plant is not necessarily a public telecom network, it interconnects with public networks;

---Section 257 of the Act, which mandates ongoing review to ensure that entrepreneurs don't face market barriers in providing telecom and information services -- the FCC says that entrepreneurs face obstacles when they don't know what Comcast is doing regarding network management; and

---Section 601 of the Act, which seeks to assure that cable operators provide the widest possible diversity of information sources -- the FCC says that order will allow Comcast customers to access a greater diversity of information.

As to whether the FCC can act without first implementing rules -- Comcast says that the Commission must go through an orderly rulemaking process first -- the Commission claims that the courts have upheld its power to adjudicate disputes even when no rules are in place.

Consumer groups hailed the decision has a breakthrough that should protect Internet users from broadband provider abuses. Free Press (which filed the original complaint that led to this decision) Policy Director Ben Scott said "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."

Public Knowledge President Gigi Sohn said "We commend the Commission for stepping in to preserve the public interest and addressing the substantial threat posed by Comcast’s conduct to the open character of the Internet."

Comcast, on the other hand, is mulling over its legal options, particularly the decision over whether it should appeal the order, although it's almost certain that Comcast will fight the FCC in the appeals court. For now, however, the company is saying nothing. "We are examining the order and evaluating our options," spokeswoman Sena Fitzmaurice said.

Posted by Cynthia Brumfield on August 20, 2008 12:08 PM to IP Democracy