Federal Communications Commission chairman Kevin Martin called a press conference Friday morning to announce the commission's ruling that Comcast violated the FCC's Internet open-access principles.
Martin said Comcast's network-traffic-management practices did not simply apply to heavy users of the service and, in fact, applied to some lighter users of the targeted technology -- BitTorrent's peer-to-peer file-sharing protocol -- while leaving heavier users of other protocols unblocked. He also said Comcast did not adequately inform users of what it was doing.
Martin said he was not proposing to fine or otherwise sanction Comcast, likening the finding to the FCC’s profanity ruling against Fox, which did not penalize the network but served to establish its enforcement regime.
"I think it is very analogous," he said. "We are clarifying and saying this is a wrong practice ... but I haven't proposed that we fine them because the most important thing is that we clarify these practices for consumers going forward."
But the chairman did say that, going forward, cable operators could likely be fined if their network-management techniques similarly violate the FCC's principles.
Martin also confirmed his preference for enforcing network nondiscrimination through the complaints-resolution process rather than a rulemaking and reiterated that he felt there was no need for legislation.
Although when the FCC announced its nondiscrimination guidelines in 2005, Martin said they were not enforceable rules, he reiterated Friday that the FCC still has authority to enforce the principles through enforcement actions against those that violate them, building up an adjudicatory record.
In addition to the complaint filed by Free Press against Comcast, Free Press and others asked the FCC in separate petitions to spell out what would violate its principles. Martin is looking to address both of those. "I think that this is going to be addressing [them] in the context of this complaint. In that complaint, we will be declaring what is or isn't reasonable network management," Martin told reporters Friday. "In that sense, it is responding to the record in both proceedings."
Martin said he wanted to vote on the item at the Aug. 1 meeting, but he did not know whether he had the votes. That may be, but both Democratic commissioners have pushed for network-neutrality enforcement, so they are likely to give him the three votes he needs.
Martin has signaled before that he thought Comcast might have run afoul of the principles. He suggested to the Senate Commerce Committee in April that he thought Comcast was degrading and blocking P2P content, and not just where the traffic was bottlenecked.
Comcast was accused by Free Press and others of arbitrarily blocking BitTorrent file sharing. Comcast countered that it was simply managing its network during periods of high traffic, but it also pledged to move to a "protocol-agnostic" network-management system, including working with BitTorrent, and it is also committed to coming up with a code of conduct for dealing with the kind of P2P file transfers implicated in the BitTorrent complaint.
The FCC's proposed finding against Comcast will require it to stop blocking content, which it claims it has never done. It will also ask the cable operator to inform customers in the future of how it is managing traffic -- Comcast said it already does so -- and to explain to the FCC just what network-management techniques it is using.
Martin has called for disclosure of network-management practices and for equal treatment for all content and applications. He has also said that the FCC has the authority to enforce its network-nondiscrimination principles through actions like the one he is proposing, rather than needing new "network-neutrality" laws.
Comcast, which has argued that the FCC's nondiscrimination guidelines are not enforceable rules, responded Friday to the reports:
“Comcast does not block any Internet content, application, or service. The commission has never before provided any guidance on what it means by ‘reasonable network management,'" senior director of corporate communications and government affairs Sena Fitzmaurice said.
"The carefully limited measures Comcast takes to manage traffic on its broadband network are a reasonable part of Comcast’s strategy to ensure a high-quality, reliable Internet experience for all Comcast high-speed-Internet customers and are used by many other ISPs [Internet-service providers] around the world," she added.
"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," she concluded. "Our Web site offers detailed information on our network-management practices.”
Public Knowledge, which also complained about Comcast, was happy with the decision. "We are pleased that chairman Martin has decided to enforce the commission’s policies preserving the rights of Internet users. Comcast’s conduct in throttling Internet traffic was deplorable when it was discovered, and remains deplorable today," Public Knowledge presdient Gigi Sohn said, adding that the group is still pushing for legislation to mandate nondiscrimination.
"This case is limited in scope to one company and to one type of behavior," she said. " Even if the commission ultimately issues an order against Comcast, there is still a need for legislation to prohibit discrimination by telephone and cable companies while preserving the rights of Internet users and companies that do business on the Internet."
Elsewhere, a subscriber to Comcast's high-speed-Internet product is suing the cable operator in the California Supreme Court for blocking the use of certain Internet applications.
Fitzmaurice could not comment on whether the FCC would take the ruling to court, since it is not a ruling yet, but Comcast has said before that it did not think the policy statement was enforceable.
If it does go to court, it would extend the profanity analogy, which is currently before the Supreme Court. Martin had no response as to whether he thought the Comcast decision might wind up there, as well.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.