The Federal Communications Commission has ruled against Comcast’s BitTorrent blocking. The Commission’ Memorandum Opinion and Order does not include a direct punishment, but stipulates that Comcast will have to disclose details about its current network management practices and stop these practices by the end of the year, as well as to further disclose details about any future network management. FCC head Kevin Martin has been hinting at such a ruling since early July, and his two Democratic co-commissioners said last weekend that they would support a ruling against Comcast. Read more details about the ruling itself over at GigaOM.
The big question is: What happens next? Comcast had already promised to switch to a protocol-agnostic way of network management by the end of the year, but it could still appeal the ruling. Spokesperson Sena Fitzmaurice said in a prepared statement that the company is weighing all its legal options, adding: “We…believe that the Commission’s order raises significant due process concerns and a variety of substantive legal questions.” It’s also not clear if the ruling will really deter others from engaging in similar behavior, which is why some still hope for new FCC rules. Others think the ruling didn’t go far enough and now hope for the courts to act. Either way, the Net Neutrality fight is poised to continue.
One party in this fight going forward will be Vuze Inc., maker of the popular Vuze BitTorrent client, formerly known as Azureus. Vuze filed a petition for rule-making with the FCC late last year as a result of Comcast’s ongoing BitTorrent filtering. This petition was not the basis of today’s memorandum, however, nor is it specific to Comcast, instead calling for new FCC rules against all kinds of network interference.
The two democratic FCC commissioners — Jonathan Adelstein and Michael Copps — made it clear today that they would also like to see new rules against discriminative behavior. Copps said a specific non-discrimination statement would ensure that “…the commission does not have a one-night affair with Net Neutrality.” Adelstein added that he would have preferred to resolve the issue through the adoption of new rules.
FCC head Kevin Martin, on the other hand, said that broad new rules could stifle innovation. Today’s decision was enough of a signal to the industry that bad actors will be punished, Martin said. Dissenting Republican commissioner Robert McDowell called today’s memorandum overreaching, saying that the FCC had no authority to rule against Comcast because the commission’s policy statement consisted of general guidelines, not enforceable rules.
Vuze General Counsel Jay Monahan told me that these arguments were exactly the reason that Vuze petitioned for rule-making. “Rules would ensure that the FCC has the ability to clearly deal with all instances of abuse by network operators, not just the facts presented here,” he said. Nevertheless, today’s order should help to deter others from copying Comcast’s tactics, Monahan told me: “We are pleased that the FCC has acted decisively to find a violation of law.”
Monahan also said that he would have preferred to see a financial penalty levied against Comcast, and he’s not the only one that wants Comcast to pay up. There are at least five class-action lawsuits pending against Comcast as a result of its BitTorrent blocking. Alyson Foster of Gilbert Randolph LLP, who is representing the plaintiffs in these cases, told me that she is very pleased with the FCC’s decision. “It’s further proof that Comcast misled its customers,” she said, adding that the decision will certainly help her case.
So what happens if it turns out that the FCC didn’t, in fact, have the mandate to rule against Comcast? The lawsuits will still go forward, Foster explained, since they’re based on claims that Comcast misled its customers through false advertising. Looks like Comcast will still have to deal with this for some time to come.