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FCC Chair Sides with BitTorrent, Comcast in Violation
July 11, 2008
Thomas Mennecke
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FCC Chairman Kevin Martin spoke to the Associated Press on Thursday about Comcast's "delaying" policy with words that may not bode well for the ISP. In a potentially significant victory for network neutrality principals and the file-sharing community, Kevin Martin said that Comcast violated net neutrality principals when they cut off BitTorrent uploaders.

At this point, Kevin Martin's words are non-binding, as his decision must be voted on by the other five members of the FCC commission. Martin is looking to impose sanctions on Comcast, although it doesn't appear the ISP will face anything tremendously debilitating. With the two other members of the commission supporters of network neutrality, it appears that Kevin Martin's recommendations will become enforceable.

So what's in store for Comcast? Providing the two other members of the commission vote in Martin's favor, Comcast will probably be forced to be more transparent about their past, present and future bandwidth management techniques. Comcast will also have to cease "arbitrary" measures against P2P.

It would appear in response to the mounting criticism that Comcast has already adjusted many of its management practices. Comcast has adopted a “protocol agnostic” throttling policy, which in theory does not focus on any particular network. In other words, if both a BitTorrent user and Skype user are consuming a disproportionally high amount of upstream bandwidth, both will be managed to alleviate pressure on the ISP’s network – as opposed to a BitTorrent-only policy. To support this measure, Comcast has been meeting with bandwidth intensive firms such as BitTorrent, Vonage, and Pando to establish a “framework” in which to operate.

Since the eruption of this news by the BitTorrent news site TorrentFreak and the Associated Press, Comcast has been on the defensive. It was attacked by Free Press and Public Knowledge, the two organizations filing the complaint, eventually snowballing into an all-out offensive joined by Internet heavyweights such as the EFF and Vuze.

Since Comcast has already implemented, to some extent, Kevin Martin's proclamation, the ruling won't be so much of a physical punishment to Comcast as it will be a philosophical one. Sure, Comcast may have to divulge some addition information on their delaying practices, but there won't be any egregious fines, penalties, or radical policy shifts. However, the ruling impact on the file-sharing landscape may prove much more valuable than any punishment doled out on Comcast.

If Kevin Martin's decision is approved, it will establish the very initial enforceable foundations of network neutrality. Until this point, ISPs could claim "reasonable network management" in response to throttling criticism, and still not divulge their internal practices. Now it appears they can still claim something similar, however, they better be ready to justify and document the process. ISPs will still manage their traffic, so long as consumers and the public have the right of transparency. This could prove to be a powerful weapon in the fight to ensure consumers get the Internet they pay for.

Kevin Martin’s policy may have an impact on the entertainment industry’s ability to compel ISPs to fight piracy as well. The music industry has been pushing ISPs to violate the DMCA’s safe harbor provision and implement filtering measures to combat piracy. If the FCC enforces its ruling, it could have a direct impact on the entertainment industry’s effort. Since discriminating against a specific protocol seems to be all but history now, the ability to filter pirated material from P2P networks without filtering the entire Internet first may prove to be a tall order to fulfill.

ISPs have kept a very close eye on the development of this proceeding, and will likely solidify their policies as this matter evolves. If the FCC demands a strict transparency policy, ISPs will have to adopt management techniques they can justify to the public. Most reasonable people are willing to accept a reasonable policy. While we may continue to see ISPs manage their networks, consumers will have greater access to the policies that manage their information.

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BitTorrent :: BitTorrent Community

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