It should come as no surprise to FCC Chairman Kevin Martin that Comcast is contending that the agency has no legal authority to stop it from throttling P2P applications like BitTorrent during peak network hours. After all, Martin said so himself three years ago.
Comcast is facing a complaint filed at the Federal Communications Commission, which claims the company's network management practices violate the FCC's Internet Policy Statement issued Aug. 9, 2005. Comcast contends its practices are reasonable under FCC rules and even if the FCC found Comcast in violation, the agency has no authority to enforce the rules.
Which is exactly what Martin said almost three years ago when the FCC approved the statement that prohibits broadband providers from discriminating in the delivery of Internet traffic to customers, except for reasonable network management purposes. After the statement was approved, Martin said, "Policy statements do not establish rules nor are they enforceable documents."
In a filing last week with the FCC, Comcast made the same point.
"It is settled law that policy statements do not create binding legal obligations," Comcast Executive Vice President David L. Cohen wrote in the filing. "Indeed, the Internet Policy Statement expressly disclaimed any such intent."
Imperceptible to the Customer
Comcast, which has nearly 13 million Internet customers and is the country's second-largest broadband provider, also used the filing to again state: "We do not block customer's access to any Internet content, applications or service."
Comcast says its policy not only falls well within the FCC's reasonable network management exception to the agency's network neutrality rules, it is also "imperceptible to the customer."
However, the charges extend beyond hardcore network management issues. Vuze, a Silicon Valley video distributor using BitTorrent, claims Comcast throttles P2P traffic because it competes with Comcast's own online video services.
"Comcast not only owns a horse in this [video] race, but they also own the only racetrack in town ... and all they want to do is slow our horse down by two seconds," Vuze CEO Gilles BianRosa said at an FCC hearing in Boston last month. "We are not against reasonable network management. We are against network management practices with no boundaries."
Cohen said that in Boston Comcast has never blocked customer access to legal content: not now and not when the Associated Press and the EFF (Electronic Freedom Foundation) conducted tests-badly flawed in design and execution, Comcast suggests-last year that prompted the FCC complaints. He said Comcast seamlessly transfers upload requests delayed by network management to other computers in the network.
"What we are doing is a limited form of network management objectively based upon an excessive bandwidth-consumptive protocol during limited periods of network congestion," Cohen said. "We do manage our networks, but don't let the rhetoric of our critics scare you. Every network is managed."
The FCC's Comcast investigation is the agency's first test of its network neutrality principles. In 2005, prior to the passage of the FCC's Internet Policy Statement, the FCC fined a North Carolina telecom holding company $15,000 for blocking VOIP calls that competed with the company's own Internet voice service. In addition to the fine, Madison River Communications agreed to refrain from blocking VOIP traffic and to put measures into place to ensure that such blocking won't happen again.
Martin has said he wants to move quickly on the Comcast complaint. In addition to the February hearing in Boston, the FCC has set an April 17 hearing at Stanford University.