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FCC Puts Comcast on the Clock

Jeff Baumgartner
8/20/2008
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Comcast Corp. (Nasdaq: CMCSA, CMCSK) has 30 days to comply with an Federal Communications Commission (FCC) order calling on the MSO to stop fiddling with peer-to-peer (P2P) traffic and generally halt its "discriminatory network management practices" or else... Well, the teeth of that threat are still not entirely clear. (See Order Up! and FCC Details Comcast Order .)

Much plainer are the steps outlined in the order, published earlier today, which give Comcast roughly a month to do the following:

  • Disclose the details of its discriminatory network management practices to the Commission.

  • Submit a compliance plan describing how it intends to stop these discriminatory management practices by the end of the year.

  • Disclose to customers and the Commission the network management practices that will replace current practices.


The official posting of the order followed a close 3-2 vote on Aug. 1. FCC Chairman Kevin Martin and Commissioners Michael Copps and Jonathan Adelstein voted in favor of it, while Commissioners Deborah Taylor Tate and Robert McDowell dissented. (See FCC Throttles Comcast.)

Comply... or else vagueness will ensue!
If Comcast fails to comply with those steps during the allotted timeframe, "interim injunction relief automatically will take effect requiring Comcast to suspend its discriminatory network management practices [as described by the FCC] within 35 days of the release of this order," the FCC noted. Second, Comcast will have to show cause why a "permanent cease-and-desist order should not be issued against it." Lastly, the FCC said a hearing will be set for 30 days after Comcast's receipt of that order. The Commission reiterated that it will not hit Comcast with a fine or other "damages."

But, if Comcast does not follow through on a commitment to migrate to a new network management system deemed OK by the Feds by the end of 2008, the same three steps will apply. And don't expect Comcast to act in a vacuum. "We invite Free Press and other members of the public to keep a watchful eye on Comcast as it carries out this relief," the FCC order stated. Free Press lodged its original complaint against Comcast in November 2007.

Comcast, which has been under fire on this issue for months, has already set voluntary plans in motion to migrate to a "protocol agnostic" platform by year's end. (See Comcast Getting 'Protocol Agnostic', Comcast CTO: Manage People, Not Protocols, and Comcast Ready to Test New Traffic Cop.) Following initial trials in Warrenton, Va., and Chambersburg, Pa., Comcast disclosed in late July that it has since expanded tests of the new technology to three additional markets: Colorado Springs, Colo., East Orange, Fla., and Lake City, Fla.

Comcast has also struck third-party agreements recently in a (failed) effort to show that government intervention in this case is unnecessary. (See Comcast, Vonage Strike VOIP Pact and Comcast: Feds Not Needed Here .)

Although Comcast already fully intends to move off its existing network management system, the MSO was non-committal about whether it might fight other elements spelled out in the FCC order. "We are examining the order and evaluating our options," an MSO spokeswoman said via email this morning.

'Blocking' foul
Comcast has admitted to delaying or throttling upstream P2P traffic in times of congestion, but it has vehemently denied the "blocking" of any Internet applications. (See Comcast Defends P2P Management .) The FCC order contends that the evidence, including the results of tests conducted by the Associated Press and the Electronic Frontier Foundation , shows otherwise and indicates that the MSO had violated the Commission's Internet policy statement:

    We do not agree with Comcast's characterization and instead find that the company has engaged in blocking. Moreover, Comcast's practice selectively blocks and impedes the use of particular applications, and we believe that such disparate treatment poses significant risks of anticompetitive abuse.


The FCC order also shoots down Comcast's argument that the Commission doesn't have jurisdiction on the matter, noting, for example, that the Enforcement Bureau entered into a Consent Decree with Madison River Communication LLC in 2005 that prohibited the ISP from blocking VOIP applications. (See Vonage Victorious in Blocking Case.) That case and other FCC pronouncements "render hollow Comcast's protestation that engaging in this adjudicative proceeding is somehow inconsistent with prior Commission policy," the order argued.

Are consumption caps OK? Maybe
The FCC has not yet given its blessing to Comcast's new "protocol agnostic" approach, but the Commission did try to don its engineering cap and outline some network management options it deems to be non-discriminatory.

"Comcast could cap the average users' capacity and then charge the most aggressive users overage fees. Or Comcast could throttle back the connection speeds of high-capacity users (rather than any user who relies on peer-to-peer technology, no matter how infrequently)," the FCC notes, adding that it doesn't presently "endorse" any particular solution.

The system Comcast is deploying might meet the FCC's latter suggestion, but the MSO is also reportedly mulling a metered Internet consumption option that would cap individual monthly usage at 250 gigabytes per month before customers would be subject to additional charges. (See Comcast Caps Coming? .)

Comcast hasn't launched such a policy, but other MSOs, including Time Warner Cable Inc. (NYSE: TWC), BendBroadband , and Canada's Rogers Communications Inc. (NYSE: RG; Toronto: RCI), have either started to test metered Internet systems or have deployed them commercially. (See Get Your Meter Running, Rogers Takes Internet Meter to the Masses, and TWC Tees Up Metered Internet Trial .)

— Jeff Baumgartner, Site Editor, Cable Digital News

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