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FCC's Martin Is Ready to Pounce

Jeff Baumgartner
7/28/2008

Will Comcast be punished for blocking P2P traffic? Well, no. But regulators are keen to at least make it seem as though they're on top of the issue.

The Wall Street Journal is reporting that Federal Communications Commission (FCC) Chairman Kevin Martin has the votes necessary to hit Comcast Corp. (Nasdaq: CMCSA, CMCSK) with a ruling that the MSO's treatment of some peer-to-peer (P2P) traffic violates agency Internet policies.

According to the paper, a majority of the five FCC Commissioners voted late last week in favor of Martin's proposal. During an open meeting scheduled for Friday (Aug. 1), The FCC is expected to consider a "Memorandum Opinion and Order" to address complaints from Free Press and Public Knowledge pertaining to Comcast's network management practices. [Ed. note: Oooh. An opinion memo. That'll show 'em!] FCC officials did not return calls for comment on the WSJ report.

FCC Chairman Kevin Martin has already indicated that he is poised to punish -- in the weakest possible sense of the word -- Comcast for "blocking" some Internet traffic "arbitrarily," and has circulated a draft order for consideration by the other Commissioners. (See FCC's Martin Ready to Penalize Comcast.) The agency hasn't released the details of the order, but Martin has expressed that his proposal does not seek a financial penalty. Instead, it will likely bar Comcast from using its current methods to throttle some upstream P2P traffic. [Ed. note: "Dear Comcast, Please refrain from doing what you are no longer doing..."] (See Martin Not in a 'Fine' Mood.)

Such a ruling is, in fact, extremely lame; Comcast is already in the process of testing a new "protocol agnostic" approach that it expects to have deployed in all systems by year's end. (See Comcast Getting 'Protocol Agnostic', Comcast CTO: Manage People, Not Protocols, and Comcast Ready to Test New Traffic Cop.) It could, however, set a precedent for other broadband ISPs, including Cox Communications Inc. , which has also been accused of fiddling with P2P traffic. (See Study Alleges a Cox Block on P2P Traffic.)

The National Cable & Telecommunications Association (NCTA) weighed in on the discussion via an ex parte document filed last Thursday that calls on the FCC to address networking management across the board rather than focus solely on the Comcast case. Cable's primary lobbying group pointed out that many top universities already restrict some P2P traffic, as do some wireless service operators.

"If there is to be regulation, it must apply equally to all providers," the NCTA argued. "But the far better approach... is to allow different network providers to continue to seek out the network management techniques that are best suited to preventing congestion on their particular networks and maximizing customer satisfaction." [Ed. note: Note that "blocking traffic" is now called "network management." Please update your dictionaries accordingly.]

But, based on Comcast's historic position on this issue and allegations over "blocking," it's possible that the MSO could try to seek a reversal of any FCC action in the courts.

"It is always hard to respond to rumors, however, we continue to assert that our network management practices were reasonable, wholly consistent with industry practices, and that we did not block any access to Web sites or online applications, including peer-to-peer services. We do not believe the record supports any other conclusion," said Sena Fitzmaurice, Comcast's senior director of corporate communications and government affairs, in a statement.

She also reiterated that even for the most heavily used P2P protocols, 90 percent of flows are unaffected by network management, and that only 6 percent to 7 percent of Comcast subscribers use P2P in a typical week.

Regardless of what goes down Friday and how Comcast responds, the P2P network management issue likely won't disappear from the headlines for quite some time. The operator reportedly is also facing a class-action lawsuit led by Robb Topolski, one of Comcast's most vocal critics on the matter of network management. Multichannel News also notes that Comcast is facing similar, pending suits in California, Illinois, New Jersey, and Washington, D.C., and at least two suits from individual cable modem subscribers.

— Jeff Baumgartner, Site Editor, Cable Digital News

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Lite Rock
Lite Rock
12/5/2012 | 3:35:48 PM
re: FCC's Martin Is Ready to Pounce
I liked the article.

And here I thought Irony was Women's work!
baybob
baybob
12/5/2012 | 3:35:43 PM
re: FCC's Martin Is Ready to Pounce
In this 1980 proceeding, the precedent was set that the Internet is an "unregulated information service." Thank god for the service providers who are getting otherwise dumped on by those who want to steal their capacity in the name of "didn't they MEAN Unlimited?"

CI-II was re-affirmed in the 1996 Legislation and has been well litigated.

It's the Communications equivalent of Roe v. Wade.

Here's a good summary:

law.indiana.edu/fclj/pubs/v55/...

The FCC's hands have been tied for a long time and it's set in precedent.

nhubbell
nhubbell
12/5/2012 | 3:35:42 PM
re: FCC's Martin Is Ready to Pounce
Hey - good article (also particularly love the Cox Comms article reference - do you guys write your own article titles? Hilarious).

It seems the whole net neutrality things is taking on a global importance these days, too. Across the pond, the EU governing body is putting together the 'telecoms package', which includes among the 800 amendments a few that are actually calling for providers to police the content that is being transferred over their networks - a big difference from the U.S. where it seems the FCC is saying providers CAN'T actually do anything like that.

In China, I recently saw that some mobile broadband operators or using traffic management solutions to make sure no one user's 'abuse' of their allotted bandwidth will handicap another user's network experience.

It's all about how you use the technology, I guess. Networks are getting pinched by big data transfers, and this topic will only become more prevalent as more people get broadband access.
nodak
nodak
12/5/2012 | 3:35:40 PM
re: FCC's Martin Is Ready to Pounce
Why were universities thrown under the bus by the NCTA? Unless something has changed, they generally provide ISP like services for free (yes I know it is built into tuition and/or room and board). Since they are not directly charging for it, would that not allow them to regulate traffic as they see fit, especially since you are there to learn not do massive file transfers?
Jeff Baumgartner
Jeff Baumgartner
12/5/2012 | 3:35:39 PM
re: FCC's Martin Is Ready to Pounce
Thanks for the link. Just took a peek. It's a sizable summary with some juicy details, so we'll give a closer look and digest it a bit.
Jeff Baumgartner
Jeff Baumgartner
12/5/2012 | 3:35:39 PM
re: FCC's Martin Is Ready to Pounce
Thanks for the link. Just took a peek. It's a sizable summary with some juicy details, so we'll give a closer look and digest it a big.
Jeff Baumgartner
Jeff Baumgartner
12/5/2012 | 3:35:38 PM
re: FCC's Martin Is Ready to Pounce

My sense is that univ. were just being used as examples showing that MSOs (Comcast) aren't the only ones managing P2P. I'm just not sure the Net Neutrality advocates would agree that a free or private ISP should get a free ride when it comes to blocking, throttling, or some of these network management techniques that have people up in arms.
And college students are known for swapping and transfering monster files, so I'd be very surprised if they didn't become vocal on the issue if their respective schools were doing something they thought was nefarious. Jeff
nodak
nodak
12/5/2012 | 3:35:37 PM
re: FCC's Martin Is Ready to Pounce
I would think Universities would claim more of a business, status, where your right to use the their services for personal use is limited to educational related topics with limited personal use. Could you imagine what would happen if a professor's research grant was lost because he could not main a fast connection?
fgoldstein
fgoldstein
12/5/2012 | 3:35:36 PM
re: FCC's Martin Is Ready to Pounce
The FCC repealed CI-2 in 2005, effective 2006. That however is precisely why the neutrality issue arises.

CI-2 was an excellent ruling, one that quite literally made the public Internet possible. It dictated an ironclad separation between common carriage ("basic service") and unregulated services riding atop it ("enhanced service"). It required that telcos, when they offer an enhanced service, do so at arms' length, via a Fully Separated Subsidiary that purchases the basic service on the same terms as unaffiliated ESPs.

Divestiture (the MFJ) then restricted the Bells' unregulated operations for a few years, but that was waived. CI-3 relaxed the FSS rule and replaced it with accounting separation -- they still had to buy from the regulated side the same was as competitors did, but didn't need separate organizations and people.

What Martin did in 2005 was remove CI-2's break bewteen carriage (basic) and content (enhanced, which essentially corresponds to "information service" in TA-96 language). But he defined the carriage as content, not the other way arround, removing common carrier obligations from the telephone companies. (Cable companies were legally classified as self-provisioned ISPs, like neighborhood WISPs and other non-telcos who owned phsyical access facilities.) I wrote about this, equating it to the old woman who told Hawking that it was turtles all the way down:

http://hosted-communications.t...

So he said quite clearly in 2005 that telcos providing DSL are no longer common carriers, precisely because cable companies weren't, and the Bells didn't want to be more regulated than cable. So how do we end up talking about common carrier obligations of cable, while the Bells are spending big time (but still in the lab) on IMS fer cripes ache? And while the wireless carriers selling "Internet" are hotbeds of DPI with extremely restrictive policies (all applications forbidden unless explicitly allowed, such as VZW's mail-and-web only policy)?

The simple answer (and one that is eminently practical) is to restore CI-2.
^Eagle^
^Eagle^
12/5/2012 | 3:35:35 PM
re: FCC's Martin Is Ready to Pounce
Nodak,

I hear you and understand your sentiment. However, you need to have your perceptions corrected.

The odds of what you describe happening are very very small.. in fact, in most competent universities, impossible.

Having personally designed several university networks, and participated in many others and by having some of my best friends running several large university networks.... I can tell you that university's with any serious research going on design their networks so that student traffic in general, regardless of if it is p2p or any other kind of traffic, is on seperate campus network than the links that serious researchers use.

In fact, even different departments have their own dedicated capacity (physics has own capacity, bio has capacity, chemistry, and special research centers have even more capacity... think UT, or Rice, or MIT, Stanford, etc.)

I could give more detail, but I think you get the point.

This is a red herring argument.

sailboat
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