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FCC Punts on Network Neutrality

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Updated: NewTeeVee writer Janko Roettgers offers his analysis of the FCC decision and concludes that a flurry of lawsuits is going to follow. Read the report.

As expected, the Federal Communications Commission has voted to chastise Comcast for its network management practices, with two commissioners of the five dissenting. Unfortunately, the FCC has decided not to make a formal rule regarding network management practices and has instead decided to adjudicate the issue and move forward with Network Neutrality problems on a case-by-case basis.

Comparing the Comcast issue to rural telephone company Madison River Telecommunications blocking voice-over-IP traffic three years ago, FCC Chairman Kevin Martin said by blocking potential competitive video applications, “Comcast did not practice network management; they had arbitrarily picked an application and blocked [consumers’] access to it.”

As such, he gave Comcast until the end of the year to stop its existing network management practices and tell its subscribers more about what the new network management practices might entail. The FCC did not, however, fine Comcast, which said in a statement issued this morning:

“We are gratified that the Commission did not find any conduct by Comcast that justified a fine and that the deadline established in the order is the same self-imposed deadline that we announced four months ago. n the other hand, 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. “

The commissioners also held up the FCC’s efforts in this case as the model for deciding such cases in the future. Such a long-winded and time-consuming process is a laughable way to arbitrate network access issues on the fast-moving Internet. As the commission noted, the investigation began in November 2007 after the Free Press filed a complaint with the FCC about Comcast blocking BitTorrent traffic. After two hearings, more than 6,500 comments and much back and forth, eight months later Comcast gets its comeuppance — a whopping two-hour lecture and a slap on the wrist.

Given how quickly applications and startups can rise and fall on the web, spending eight months to determine an application’s ability to access the web if the ISPs determine to block it means that innovation could be halted.

Under the order approved by the FCC, network management must be reasonable and not discriminatory. Broadband providers should also take greater pains to tell consumers about their network management practices. Commissioner Deborah Taylor Tate (who didn’t sign the order) said, “Consumers must be able to both know and understand what they’re getting and what they are paying for.”

On the other hand, Commissioner Tate also pointed out that making it difficult for ISPs to manage their network makes it difficult for them to halt child pornography and illegal file sharing. Wow, I knew that all P2P users were stealing music, but to be lumped in with child pornographers really is a PR low for file sharers nationwide.

The final dissenter, Chairman Robert McDowell, who parroted the industry line very well, pointed out that this order will slow the Internet to a halt because engineers will no longer be allowed to “discriminate” between packets on their networks without worrying how the FCC might rule against them. He paints a ridiculous picture of email packets, which do not have to be delivered as quickly or in any particular order, being deemed equal to voice or video packets, resulting in “hissing and popping” video on the web.

For such a toothless order, the industry is taking great pains to show how inconvenient increased FCC scrutiny into their management practices will be.

19 Responses to “FCC Punts on Network Neutrality”

  1. Sum Yung Gai

    No, Brian, it doesn’t. You apparently don’t understand how American tech law works, nor do you understand how TCP works. If those are Comcast’s terms of service, then they would have to block *all* TCP traffic. *ALL* TCP traffic. Only UDP would be permissible. Oops, no Web surfing, that’s TCP!

    But just to double-check, I have an attorney friend who focuses on technology issues. I forwarded this to him, and according to him, the only provision you listed that *might* apply is the third one. However, the fourth one immediately negates it. Furthermore, due to the technical issues of TCP, the third provision is essentially unenforceable, which is why the fourth provision is there.

    So, yes, Bittorrent itself is fair game, and Comcast was out of line.


  2. Read Comcast’s Terms of Service at They say that users may not:

    * restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Service or any Comcast (or Comcast supplier) host, server, backbone network, node or service, or otherwise cause a performance degradation to any Comcast (or Comcast supplier) facilities used to deliver the Service;

    * resell the Service or otherwise make available to anyone outside the Premises the ability to use the Service (for example, though wi-fi or other methods of networking), in whole or in part, directly or indirectly. The Service is for personal and non-commercial residential use only and you agree not to use the Service for operation as an Internet service provider or for any business enterprise or purpose (whether or not for profit);

    * use or run dedicated, stand-alone equipment or servers from the Premises that provide network content or any other services to anyone outside of your Premises local area network (“Premises LAN”), also commonly referred to as public services or servers. Examples of prohibited equipment and servers include, but are not limited to, e-mail, Web hosting, file sharing, and proxy services and servers;

    * use or run programs from the Premises that provide network content or any other services to anyone outside of your Premises LAN, except for personal and non-commercial residential use;

    P2P violates all of these provisions.

  3. McDowell gets it.

    He wasn’t “parroting the industry party line,” as the biased account above suggests. Rather, he recognized that in this case Comcast was throttling back bandwidth hogs — a good thing for consumers. It wasn’t blocking any application; it was throttling it. (It would have been justified in blocking P2P, however, because its use violates Comcast’s terms of service. So, it showed great restraint.) Nor was Comcast blocking access to any legal content. (It’s worth noting that the Web site of Free Press, an organization which posted slanderous messages about Comcast and much misinformation about what it was doing, was not blocked at all.)

    I’ve placed some of the facts about this issue, as laid out in my testimony at an FCC hearing in March, on my Web site at Also see my filings with the FCC at,, and Reference these URLs for the truth about these issues — not from the point of view of inside-the-Beltway Washington lobbyists but from a hard working local ISP who is fighting to give consumers a real choice.