Washington—Federal Communications Commission chairman Kevin Martin Friday said he wants the agency to rule that Comcast violated agency policy by "blocking" consumers from freely using applications that help speed delivery of video services and other content over the Internet.
Martin, however, is not proposing to fine Comcast. He had been asked to impose up to $30 million in penalties for violating the agency's August 2005 network neutrality principles, which Martin said were unenforceable rules on the day they were adopted.
Martin said he met with Comcast officials on Friday to discuss his decision. Later, Martin told reporters he did not know whether he had the necessary three votes to prevail.
“Contrary to what everybody thinks, I never know whether I've got the three votes when I'm proposing things,” Martin said. “Everyone seems to think I always do.”
The five-member FCC consists of three Republicans and two Democrats. Martin and the two Democrats—Michael Copps and Jonathan Adelstein—have partnered in the past to adopt cable-hostile regulations.
If the FCC adopts Martin's recommendation, Comcast will be ordered to stop the proscribed practices within a “reasonable timeframe” and it must tell the FCC where it had been blocking traffic on a market-by-market basis for purposes of FCC verification, Martin said.
“I think this is important step for the commission,” Martin said, adding that he would like the agency to vote at its Aug. 1 open meeting here. “I'm not proposing any fines or monetary penalties.”
Martin, prior to officially announcing the proposal, provided an interview about his plan to punish Comcast to the Associated Press, which filed a story late last Thursday.
In a statement responding to the AP’s story, Comcast senior director of corporate communications and government affairs Sena Fitzmaurice reiterated the MSO’s position that it “does not block any Internet content, application or service.”
Comcast takes “carefully limited measures” to manage traffic on its broadband network, according to Fitzmaurice, which 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 [Internet service providers] around the world.”
“The commission has never before provided any guidance on what it means by ‘reasonable network management,’” she added.
Fitzmaurice also noted that Comcast’s customer service agreements and policies have always indicated to subscribers that broadband capacity is not unlimited and that the network is managed for the benefit of all customers.
The brouhaha over Comcast’s practice of throttling back BitTorrent file transfers was touched off by an AP story last fall. In that story, the wire service said its reporters’ attempts to transmit a copy of the Bible over Comcast’s broadband network using peer-to-peer software were initially “blocked.”
Comcast subsequently drew fire from so-called "network neutrality" advocates, who want to prohibit Internet service providers from hindering the amount of bandwidth available to individual applications or Web sites.
Several of these groups urged the FCC to force Comcast to stop the practice, arguing that it violated the agency’s policy statement on network neutrality, after which the agency commenced a formal probe.
The BitTorrent episode led Comcast to announce in March that it would move to a “protocol-agnostic” network management approach by the end of 2008, and the MSO has embarked on three technical trials on this front.
In addition, Comcast said it would work with BitTorrent, as well as other peer-to-peer developers and Internet companies, to ensure their services would run optimally on its networks.
Martin's announcement was hardly a surprise. In addition to battles with the cable industry on a number of fronts, Martin made remarks earlier in the year at FCC-sponsored public forums at Harvard Law School and Stanford University that repeatedly accused Comcast of blocking Internet traffic.
Comcast doesn't have easy options if the FCC adopts Martin's recommendation, said Stifel, Nicolaus & Co. analyst Blair Levin, former FCC chief of staff under chairman Reed Hundt.
“We expect Comcast would mount a court challenge, raising questions about the FCC's authority. While the litigation prospects are hard to gauge before an order is released, Comcast could face a tricky task because if it torpedoes the FCC's basis under the law or its principles, that could spark net neutrality legislation or explicit rules,” Levin said.
As for the BitTorrent-specific throttling Comcast currently uses, the MSO has disclosed its method of targeting the heaviest P2P users but says 90% of the 9 billion peer-to-peer transmissions that traverse its network on a typical day are unaffected.
“This current network management technique delays a relatively small number of P2P uploads and only delays them temporarily,” Fitzmaurice said.
Limiting the bandwidth consumed by individual applications, particularly peer-to-peer file-sharing programs like BitTorrent, is a standard technique among Internet providers.
Tests conducted earlier this year by P2P video distributor Vuze purportedly found that the eight-largest Internet service providers in the U.S. all “artificially interrupt” peer-to-peer traffic to some extent. The study, released April 18, found that BitTorrent-based file transfers are routinely disrupted on networks operated by AT&T, Cablevision Systems, Charter Communications, Comcast, Cox Communications, Time Warner Cable, Qwest and Verizon.
Even though the FCC has yet to vote on the Martin measure, network neutrality proponents were encouraged by the action.
In a press release issued prior to Martin’s press conference, consumer activist group Free Press—one of the organizations that has repeatedly complained about Comcast’s bandwidth management practices—predicted a “victory” over the MSO.
“The FCC now appears ready to take action on behalf of consumers. This is an historic test for whether the law will protect the open Internet,” Free Press general counsel Marvin Ammori said, in a statement. “If the commission decisively rules against Comcast, it will be a remarkable victory for organized people over organized money."
