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FCC Throttles Comcast

Jeff Baumgartner
8/1/2008
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As expected, the Federal Communications Commission (FCC) voted 3-2 this morning in favor of an order finding that Comcast Corp. (Nasdaq: CMCSA, CMCSK) illegally fiddled with some peer-to-peer (P2P) traffic and violated the agency's Internet principles.

The agency did not fine Comcast, but the order calls on the MSO to be transparent about its network management practices and to switch from its current bandwidth management system by year-end, holding that Comcast's present use of deep-packet-inspection technology is not considered "reasonable."

Mr. Chairman

Under the order, Comcast had 30 days to disclose the details of its "discriminatory network practices" to the Commission and to submit a compliance plan describing how the MSO plans to stop the practices by year-end. (See FCC Issues Comcast Order.)

Comcast's already doing that
In the wake of the original complaint and the following FCC probe, Comcast, which has repeatedly denied "blocking" any Internet applications, has already announced plans to move to a "protocol agnostic" platform by year-end. (See Comcast Getting 'Protocol Agnostic', Comcast CTO: Manage People, Not Protocols, and Comcast Ready to Test New Traffic Cop.)

The FCC has not released the specific details of the order, but shortly after this morning's open meeting and vote, an agency official would say only that the order would be posted on the FCC site "soon, very soon." When pressed by a member of the press to be more specific, she said, "Soon means soon." So, needless today, we'll be checking the FCC site "soon" for more details.

Likewise, the FCC is not being crystal clear yet as to what penalties could be leveled against Comcast should it fail to submit a compliance plan on time or follow through with the switch. FCC officials would only say that the operator would be subject to "injunctive relief... and further enforcement action," should Comcast not follow through. Another FCC official said the order's "real teeth" would be bared if Comcast does not follow through. [Ed note: We hear that the dreaded "ear pull" is the punishment level that would follow today's "wrist slap".]

Comcast senior director of corporate communications and government affairs Sena Fitzmaurice said in a statement the operator was "gratified" that the FCC won't seek a fine "and that the deadline established in the order is the same self-imposed deadline that we announced four months ago."

But she added that the operator believes the order raises some sizable legal questions. "We are considering all our legal options and are disappointed that the Commission rejected our attempts to settle this issue without further delays," Fitzmaurice added.

Roundup: He said, he said, she said, he said, they said
Chairman Kevin Martin and Commissioners Michael Copps and Jonathan Adelstein voted in favor of the order. Commissioners Deborah Taylor Tate and Robert McDowell dissented.

In his support of the order, Martin was again critical of Comcast and the evidence suggesting that the MSO was "blocking" P2P uploads and then concealing the practice.

Comcast, he said, "was doing so 24/7, regardless of the amount of congestion on the network or how small the file might be. Even worse, Comcast was hiding that fact by making affected users think there was a problem with their Internet connection."

He's also not ready to buy into Comcast's new "protocol agnostic" technique yet, wondering if there will be bandwidth limits, how they might be applied, and how customers will know if they are close to reaching those limits. "The Commission needs to understand the answers. Perhaps, more importantly, Comcast's subscribers deserve to know the answers," Martin said.

Copps, meanwhile, said the order "strikes a careful balance" between reasonable network management and "unreasonable discrimination." He also suggested that a new, fifth FCC Internet principle "should also apply to wireless as well as wireline networks."

Tate, one of the two dissenting members of the FCC, said she simply was "not persuaded" by the order's argument, believing that "the best way to fulfill our duties under the Internet policy statement would be to assume the role of a mediator or an arbitrator" and not through the issuing of mandates.

McDowell, who was strongly against the order, wondered whether the FCC had any rules to enforce in the first place and that the evidence against Comcast "is thin and conflicting."

"The truth is the FCC does not know what Comcast did and did not do," he argued.

Martin later bristled at that, noting that the FCC had reviewed the case thoroughly, pointing out that the agency had compiled 60,000 pages of documentation, received more than 6,500 comments, and had held two public hearings on the matter.

Free Press, one of the pressure groups that brought the complaint against Comcast to the FCC, predictably trumpeted today's order.

"Moving forward, this bellwether case will send a strong signal to cable and phone companies that such violations will not be tolerated," the group said. (See Free Press Claims 'Major Victory'.)

Cable's top lobbying org, the National Cable & Telecommunications Association (NCTA) , countered that the order elevates the "interests of a few bandwidth hogs" over all other subscribers.

"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," the NCTA said.

— Jeff Baumgartner, Site Editor, Cable Digital News

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