Comcast Told to Stop Throttling

Published October 10, 2008

The Federal Communications Commission (FCC) has reprimanded cable provider Comcast Corp., saying the company violated federal government policy when it blocked Internet traffic for some subscribers.

In a 3-2 vote, the commission ordered the cable giant to change the way it manages its network.

“Comcast has unduly interfered with Internet users’ right to access the lawful Internet content and to use the applications of their choice,” FCC stated in its August ruling. “Specifically, the FCC found that Comcast had deployed equipment throughout its network to monitor the content of its customers’ Internet connections and selectively block specific types of connections known as peer-to-peer connections.”

According to FCC, Comcast originally disclaimed any responsibility for its customers’ problems. However, tests conducted by the Associated Press and Electronic Frontier Foundation suggested Comcast was selectively interfering with customers’ attempts to share files online through peer-to-peer applications.

“Comcast changed its story and admitted that it did target its subscribers’ peer-to-peer traffic for interference,” FCC said.

Stop Order

The commission concluded Comcast’s network management practices discriminate among applications instead of treating all equally and are thus inconsistent with the concept of an open and accessible Internet according to the commission’s definition. FCC also ruled Comcast’s practices are not minimally intrusive, as Comcast had maintained, “but rather are invasive and have significant effects.”

“Comcast monitors its customers’ connections using deep packet inspection and then determines how it will route some connections based not on their destinations but on their contents,” the FCC decision read.

FCC did not assess a fine in its decision, but it ordered Comcast to stop cutting off transfers of large data files among customers who use the affected types of file-sharing software.

Due Process Concerns

Comcast continued to defend its Internet traffic management practices and suggested it will fight the decision.

“We are disappointed in the commission’s divided conclusion because we believe that our network management choices were reasonable, wholly consistent with industry practices, and that we did not block access to Web sites or online applications, including peer-to-peer services,” said Comcast board member and spokesperson Sena Fitzmaurice in a prepared statement.

“We also believe that the commission’s order raises significant due process concerns and a variety of substantive legal questions,” Fitzmaurice said. “We are considering all our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays.”

The FCC’s decision gave Comcast until the beginning of September to disclose the details of its discriminatory network management and until the end of the year to submit a compliance plan describing how it intends to stop these practices.

Missed Opportunity

“Comcast should have handled this better,” said Steve Titch, a telecom policy analyst for the Reason Foundation in Los Angeles. “Consumers and users had some legitimate questions. They are paying for unlimited use.”

But a small percentage of Comcast customers were using a majority of the bandwidth, Titch noted. The problem with BitTorrent, a popular peer-to-peer file-sharing protocol, is that it takes bandwidth when it is available but then doesn’t give it back when there’s high demand, he explained. So Internet access slows down for all subscribers, not just the small percentage of those consuming most of the bandwidth via the file-sharing services.

According to Comcast, the overwhelming majority of the estimated 9 billion peer-to-peer flows that cross Comcast’s network in a typical day are unaffected by the firm’s network management. Roughly 7 percent of Comcast’s high-speed Internet subscribers use file-sharing on a weekly basis.

Network Management Right

By slowing down users who were using file-sharing services and were therefore consuming a large percentage of the system’s bandwidth, Comcast was restricting use, and thus not providing the promised unlimited use, Titch explained.

In its terms of service, Comcast says the residential service can’t be used to operate a Web site or a server.

“Comcast has always disclosed that it manages its broadband network so that all consumers have a positive experience,” Fitzmaurice said.

Comcast has never clarified what level of traffic would trigger the blocking of transfers of large data files. That doesn’t mean, however, that Comcast has no right to manage its own network, Titch says.

“The FCC has been very much hands-off when it comes to cable, except for its consistent regulatory attacks on the Internet,” Titch said. “[FCC Chairman Kevin] Martin has something against the cable companies. He’s ruled against them consistently, even when those rulings are inconsistent with his other policies.”

Could Be Overturned

Titch and other policy experts expect FCC’s ruling to be overturned by the courts. Federal judges have overturned some earlier FCC decisions, such as the one attempting to limit content on cable television.

The Comcast decision seems to extend FCC’s authority into an area of technology and network management, but there’s no ruling that gives FCC such authority, so the courts will likely overturn the decision, Titch believes. “I think the decision itself is badly reasoned,” he said.

Daniel Ballon, a technology policy fellow at the San Francisco-based Pacific Research Institute, agrees.

“The commission never adopted rules [for such a decision],” Ballon said. “A court might well find that the commission exceeded its authority and would send the decision back to them before the [FCC] attempts to enforce it.”

FCC’s decision is “fairly non-burdensome,” so it’s probably in Comcast’s best interest to follow it, Ballon said. Otherwise, he noted, the company could force FCC’s hand in adopting enforceable rules.

Ballon pointed out the decision will likely be short-lived in any case. After the presidential election in November, the new administration will probably appoint new board members who could revisit this and other decisions made by the current commission.

Phil Britt ([email protected]) writes from South Holland, Illinois.