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FCC: Comcast Violated Internet Open-Access Guidelines

As expected, the Federal Communications Commission Friday concluded that Comcast violated its Internet open-access guidelines by blocking BitTorrent peer-to-peer traffic.

The vote was 3-2 -- with FCC Republican chairman Kevin Martin joined by Democrats Michael Copps and Jonathan Adelstein -- to approve the decision.

The commission concluded that Comcast was overbroad in its network-management practices, that it selectively targeted and blocked some customers' access to content and applications and that it compounded the problem by not sufficiently warning customers. That, the FCC said, did not constitute reasonable network management and violated its guidelines on open access to the Internet.

"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. "We therefore take another important step to ensure that all consumers have unfettered access to the Internet."

Martin likened Comcast's action to opening people's mail based on its content. The FCC said it had the authority within the Communications Act to enforce those guidelines, which has been a point of contention.

That enforcement comes in a mandate to Comcast to tell the FCC how it is managing its content now and the requirement that it stop its current management techniques by year's end. The FCC did not impose a fine or other sanctions but signaled that it could if Comcast did not comply with its order

Martin has also said fines may be imposed on others in the future. Comcast already pledged to move to a "protocol-agnostic" method of managing network traffic.

FCC commissioner Michael Copps, who supported the decision, called it a "landmark decision for the FCC." But he also said he still wanted the agency to adopt a "clearly stated commitment of nondiscrimination" to its guidelines so that the decision is not a "one-night stand" with network neutrality.

Copps emphasized that discrimination was not necessarily bad, but that "unreasonable" network management is wrong.

The FCC said the decision resolved both a complaint filed by Public Knowledge and Free Press against Comcast, as well as a request for a declaratory ruling on what constitutes reasonable network management.

The commission said it will determine that by a case-by-case approach now, with the possibility of adopting a rulemaking at a later date, which commissioner Jonathan Adelstein said was key to his support of the item

Commissioner Deborah Taylor Tate, who opposed the decision, said she did not get late edits on the item until late the night before -- she said she was up at 3 a.m. -- but from what she had seen, she remained "unconvinced," associating herself with the remarks of commissioner Robert McDowell.

Tate pointed out that Comcast already agreed to move to protocol-agnostic management by the end of the year, and that BitTorrent conceded that networks needed to be managed. She conceded that Comcast's consumer disclosure was not sufficient, but she pointed out that Comcast revised its policy and recognized the need for improvement.

In his statement, Martin conceded those steps but said that did not obviate the need for action. “We need to establish the important precedent that we will stop the bad actors,” he said. “We also establish a clear framework for how we will conduct our fact-intensive inquiries if situations arise in the future.”

Tate also said the order does not sufficiently address the use of network management to control piracy of protected content or block illegal content.

McDowell said he agreed that networks could improve their network management, but he also said applications providers could better tell their customers that their software was going to tie up computers 24/7.

Seconding Tate, McDowell said he first saw the latest version of the order the night before, with about one-half of it new. He said he agreed that the FCC has jurisdiction, but there are currently no rules. The commission did not intend for its guidelines to serve as enforceable rules, he added.

As he has on various votes before, McDowell suggested that the decision's deficiencies would be ripe for judicial review, adding that the FCC was on shaky ground in its use of ancillary authority to justify its action in the absence of rules.

McDowell said the FCC was wrong to use a strict scrutiny test and it would doom the decision on appeal.

The majority concluded that Comcast's network-management techniques were not narrowly tailored to further its interest of network management, but McDowell pointed out that the test has been reserved for government actions, not those of private companies.

He also said the FCC should have conducted its own inquiry -- the FCC cited an AP investigation that uncovered Comcast's impeding of BitTorrent. McDowell said the decision was not in the public interest and could lead to a slower, not faster, Internet, with engineers’ decisions replaced by unelected bureaucrats.

Media Access Project president Andrew J. Schwartzman was pleased with the decision. "The FCC has relied on 70 years of FCC and judicial precedent to vindicate the public’s right to have unfettered access to the Internet," he said. "MAP is proud to have been co-counsel with Free Press in this process. Network neutrality is essential for fulfilling the promise of the Internet as a medium for free speech and expression."

Comcast spokeswoman Sena Fitzmaurice found something positive in the decision but said the company was considering all of its options. That would include taking the decision to court, which McDowell suggested the decision invited.

“We are gratified that the commission did not find any conduct by Comcast that justified a fine and that the deadline established in the order is the same self-imposed deadline that we announced four months ago," she said.

"On the other hand, we are disappointed in the commission’s divided conclusion because we believe our network-management choices were reasonable, wholly consistent with industry practices and that we did not block access to Web sites or online applications, including peer-to-peer services,” she added. “We also believe the commission’s order raises significant due-process concerns and a variety of substantive legal questions. We are considering all of our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays.”

Not surprisingly, Free Press was pleased. "The FCC's bipartisan decision to punish Comcast is a major victory,” executive director Josh Silver said. “Defying every ounce of conventional wisdom in Washington, everyday people have taken on a major corporation and won an historic precedent for an open Internet.”

But Silver suggested that the fight was not over and that Free Press would continue to push for network-neutrality legislation.

National Cable & Telecommunications Association president Kyle McSlarrow said the FCC was favoring bandwidth hogs over the vast majority of Web users, seconding a point Tate made during the meeting.

"One need look no further than today's FCC decision for proof that engineering challenges on the Internet should be solved by engineers, not government officials,” he said in a statement Friday. “In second-guessing reasonable network-management techniques (with no notice or guidelines in place) that benefit the overwhelming number of broadband subscribers in America, the FCC has inexplicably elevated the interests of a few bandwidth hogs over everyone else."

AT&T and Verizon Communications were on the same page in their responses.

“Regardless of how one views the merits of the complaint against Comcast, the FCC today has shown that its national Internet policies work, and that they are more than sufficient for handling any net-neutrality concerns that may arise," AT&T said in its statement. "We have argued repeatedly that there is no need for federal legislation in this area, and today’s FCC action proves that point."

And this from Verizon: "Without making a judgment on the substance of today’s ruling, it is clear that the Federal Communications Commission is prepared to uphold its broadband principles. Now the entire industry should redouble its efforts to set standards for transparency and ensure that consumers know what they are getting when purchasing access or using applications. And we should get ahead of the curve in developing and adopting sound network-management practices as new services emerge."