FCC Comcast/BitTorrent Ruling Applauded, Condemned

August 2, 2008

Thomas Mennecke

The escalation of public pressure on Comcast likely forced the company to alter their policy once it became apparent that there wasn’t much hope of winning over the FCC. Once the FCC’s decision was issued yesterday, Comcast had already implemented much of the order:

• Disclose the details of its discriminatory network management practices to the Commission

• Submit a compliance plan describing how it intends to stop these discriminatory management practices by the end of the year

• Disclose to customers and the Commission the network management practices that will replace current practices

Because Comcast altered its policy, the scope of the punishment is limited, and Comcast can take solace in not facing monetary sanctions.

“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,” announced the ISP in a statement.

Despite the rather harsh findings by the FCC, describing Comcast’s actions as discriminatory, invasive, anticompetitive, and "unacceptable failure to disclose," the ISP remained defiant and asserted its innocence. There’s also a hint that an appeal might be in the works.

“On 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. We also believe that the Commission’s order raises significant due process concerns and a variety of substantive legal questions. We are considering all our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays.”

While Comcast has walked away visibly disappointed and likely to have their story heard in appeal, reaction from the other side was quite the contrary.

Free Press called the decision “...a major victory. Defying every ounce of conventional wisdom in Washington, everyday people have taken on a major corporation and won an historic precedent for an open Internet. “
Public Knowledge commented that “Comcast’s throttling of legal Internet traffic had nothing to do with network management as the company claims. It had everything to do with a big company trying to exert its power over a captive Internet market.”

Vuze, the BitTorrent application formerly named Azureus, also had a substantial interest in the FCC’s investigation and decision. Vuze is a highly popular program, and the success of this client is largely dependent on the ability of individuals to upload and share content. If this ability is removed from the BitTorrent crowd, especially those sharing content from the Vuze store, Comcast’s policy might push Vuze out of business. Vuze argued this policy creates an anticompetitive business environment, an argument that seems to have stuck with the FCC.

“It was a great day for the Internet, today,” a post to the Vuze blog reads. “Just hours ago, the FCC ruled that Comcast violated federal policy by interfering with certain Internet traffic. In doing so, it took an important step toward assuring that the Internet remains open and free. “

The announcement of the FCC’s decision doesn’t conclude the debate surrounding net neutrality. The vote was divided along political lines, and Comcast already has the support of House Republican Leader John Boehner. Boehner had unkind words for the FCC, and criticized Chairman Kevin Martin for "...wading into this debate on very shaky procedural and legal grounds. While the FCC has endorsed certain Internet policy principles, it has never adopted regulations through a proper notice and comment rulemaking. Nor should it, for the reasons I outline above. Nonetheless, your continued pursuit of this matter suggests that you are making not only a poor policy judgment, but a poor legal one, as well."