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Broadband Access
FCC to telcos via Comcast: “No more rate-throttling”
Score one for net neutrality advocates
by Doug Allen
Net neutrality advocates scored a major regulatory victory when the
FCC declared, in a 3-2 vote, that Comcast must stop manipulating P2P
traffic over its broadband network and operate its bandwidth access
management in a transparent fashion.
Declaring the largest domestic MSO’s network traffic management scheme — and specifically its deep-packet inspection technology — to be “invasive,” the FCC gave
Comcast till the end of the year to comply and implement a new network
management system that does not discriminate against particular
traffic types or applications through rate-throttling or slowing
transmission.
Comcast had been under suspicion of throttling P2P traffic, and the application Bit Torrent in particular, since late 2007, when Associated Press reports of Comcast’s rate-throttling first appeared, although independent reports from broadband user watchgroups such as DSLreports.com go back further. After the AP story hit, consumer rights groups Public Knowledge and Free Press, as well as online video distributor Vuze, went to the FCC for regulatory guidance.
Comcast’s offense, the FCC holds, is twofold: first, controlling broadband rate access in a “discriminatory” fashion “not narrowly tailored to address Comcast’s concern about network congestion.” In fact, throttling appears to have been used regardless of the current network congestion level, indicating Comcast was targeting applications on the basis of content, not network impact. A study on Comcast’s traffic levels by the Max Planck Institute for Software Systems in Germany found that Comcast slowed BitTorrent traffic during off-peak traffic hours, in addition to those high-usage times when the network carried peak or near-peak traffic loads.
Compounding the first sin was the MSO’s practice of hiding their P2P throttling policy from users, and suggesting that any delay in transmission lay in with the customer’s end at the modem.
According to Dana Shaffer, chief of the FCC’s Wireline Competition Bureau, specific
examples of throttled sessions include movie trailer open-source software downloads, as well as updating online game clients.
The legal basis for the decision is taken from Internet policy principles, adopted by the FCC in 2005, which stipulate that customers have the right to unimpaired access to legal Web services, applications, and devices. This principle has no judicial legal standing, however: that is, the FCC has no legal mechanism to enforce what are, in effect, industry guidelines. Though Comcast disputes the FCC’s right to regulate its network management, the FCC asserts that it has broad authority to regulate broadband networks per se, and defends last Friday’s decision on the grounds that it’s ruling narrowly addresses one provider’s specific actions. Comcast appears to be evaluating its legal options, and could well look to appeal the verdict.
The FCC order gives Comcast 30 days to offer up the details on the inner workings of its “discriminatory network practices” to the FCC, and to tender a “compliance plan” that covers the MSO’s plans to renounce throttling for an open, application-agnostic network management platform to take effect by end of this year. For its part, Comcast has already said it would move to such a platform of its own volition, in the same time-frame, as per an announcement made four months ago. It’s not clear what penalties Comcast would face if they fail to comply, except for, as FCC officials stated, “injunctive relief…and further enforcement action.”
For now, net neutrality advocates are claiming victory, expecting the Comcast decision to set a precedent that other potential application-throttling telcos will have to respect in the future, even if the current precedent is based on a narrow, plaintiff-specific ruling. On the other side of the fence, MSO lobbyists look ready to fight the FCC on this one, contending that such decisions unfairly favor heavy-bandwidth power users over other, lighter capacity, consumers.
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