FCC Orders Comcast to End Discriminatory Network Management Practices

Comcast's management of its broadband Internet networks contravenes federal policies that protect the vibrant and open nature of the Internet, the Federal Communications Commission found on August 1. Ruling on a complaint by Free Press and Public Knowledge as well as a petition for declaratory ruling, the FCC concluded that Comcast has unduly interfered with Internet users' right to access the lawful Internet content and to use the applications of their choice.

Specifically, the FCC found that Comcast: 1) 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 connection; 2) network management practices discriminate among applications rather than treating all equally and are inconsistent with the concept of an open and accessible Internet; 3) practices are not minimally intrusive, as the company claims, but rather are invasive and have significant effects; 4) 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; 5) conduct affected Internet users on a widespread basis -- Comcast may have interfered with up to three-quarters of all peer-to-peer connections in certain communities.

The Commission concluded that the end result of Comcast's conduct was the blocking of Internet traffic, which had the effect of substantially impeding consumers' ability to access the content and to use the applications of their choice. The Commission noted that the record contained substantial evidence that customers, among other things, were unable to share music, watch video, or download software due to Comcast's misconduct. The Commission also concluded that the anticompetitive harms caused by Comcast's conduct have been compounded by the company's unacceptable failure to disclose its practices to consumers.

The FCC did not fine Comcast, but, within 30 days, the company must: A) Disclose the details of its discriminatory network management practices to the Commission; B) Submit a compliance plan describing how it intends to stop these discriminatory management practices by the end of the year; and C) Disclose to customers and the Commission the network management practices that will replace current practices.

FCC Chairman Kevin Martin said, "Would you be OK with the post office opening your mail, deciding they didn't want to bother delivering it, and hiding that fact by sending it back to you stamped "address unknown - return to sender"? Or if they opened letters mailed to you, decided that because the mail truck is full sometimes, letters to you could wait, and then hid both that they read your letters and delayed them? Unfortunately, that is exactly what Comcast was doing with their subscribers' Internet traffic."

Fellow Commissioner Michael Copps called the action a landmark decision but cautioned, "We do recognize that unreasonably impeding the performance of an Internet application (like peer-to-peer file sharing)-and not just outright blocking a particular website or program-violates the FCC's Internet policies. We do require that Internet providers inform their customers when they make important technical decisions that change how the Internet works. And we do give consumers who feel their Internet experience is being unreasonably interfered with a right to seek help at the Commission. We do not, however, prohibit carriers from reasonably managing their networks. And we do not prevent engineers-either now or in the future-from coming up with new and better ways to serve their customers."

Commissioner Adelstein said, "This decision is seminal because, for the first time, we interpret the specific provisions of the Internet Policy Statement and follow through on our repeated promises to act on allegations of misconduct. At the same time, it is also a narrow decision, grounded firmly in the facts of the case before us."

Commissioner Deborah Taylor Tate voted against the order saying, "Rather than assuming the role of 'world wide web enforcer,' perhaps the best way for the FCC to fulfill our duties under Internet Policy Statement would be to assume the role of mediator or arbitrator, helping to facilitate agreements among the various sectors of the broadband Internet industry to create an experience that benefits all users, rather than issuing broad mandates to protect the few."

Commissioner Robert McDowell also voted against the decision. For most consumers, the FCC decision may have little short-term impact, because only a small percentage of people actually use file-sharing services to exchange big files. But it sends a signal that regulators won't allow phone and cable companies to prevent consumers from using the Internet as they please. "For the first time, today our government is choosing regulation over collaboration when it comes to Internet governance," Commission McDowell said. "The (FCC) majority has thrust politicians and bureaucrats into engineering decisions." In a lengthy dissent, he addressed his procedural and legal concerns about the action.

"We expect companies like Cox to stop blocking and degrading [traffic] immediately. If they don't, we will file a complaint," said Josh Silver, executive director of Free Press.

Members of Congress, presidential nominee Sen. Barack Obama (D-IL), have pushed for network neutrality legislation without success. Obama's likely Republican challenger, Sen. John McCain (R-AZ), opposes enacting net neutrality rules.

Verizon Communications, AT&T and the US Telecom Association all released statements Friday saying the FCC action proved there was no need for federal network neutrality legislation.

Charles Cooper of C|Net writes, "Let me see if I've got this right. Federal regulators determined on Friday that Comcast broke the law by slowing Internet traffic for subscribers using BitTorrent to swap large files with other people. But then the FCC decided it was enough to issue a press release declaring the victory of the rule of law and now it's time to move on. Not a penny in fines was assessed and not the slightest penalty suggested. OK. Post-Enron, post-Bear Stearns, post the subprime debacle, I'm long past being surprised by big corporations trying to cover their posteriors for posterity. But what's really amusing here is that Comcast thinks even this rap on the knuckles is undeserved."