CAPITAL CURRENTS: Sticks and stones may break my bones…

Tue, 09/30/2008 - 8:05pm
Jeffrey Krauss, President of Telecommunications and Technology Policy

FCC Chairman Kevin Martin wanted one more scalp on his anti-cable belt.
But all he got was a few loose hairs.

Reading through the FCC’s decision on the complaint against Comcast’s network management practices, you come away with the following conclusions: Comcast is a liar, a cheat, and has bad breath. The document is 30 pages of name calling. As I predicted in my April “Capital Currents” column, Comcast got a slap on the wrist, with no actual penalties. It came sooner than I expected, and that’s because Federal Communications Commission Chairman Kevin Martin wanted one more scalp on his anti-cable belt. But all he got was a few loose hairs.

Jeffrey KraussComcast was nailed for discriminating against high-volume peer-to-peer traffic, rather than blocking all high-volume users. That would have been OK. Certainly Comcast stumbled by changing its story several times. That’s part of the reason that the FCC doesn’t really know for sure what Comcast was doing. There were some test results entered into the record that the FCC considered to be “evidence,” but it’s not the kind of sworn evidence that will hold up in court. For example, the FCC claims that Comcast was using “deep packet inspection,” and that may be true, but there is no evidence that proves this, only inferences from informal reports submitted for the record.

The record includes hearings that the FCC held at Harvard and Stanford, which gave engineers the opportunity to talk like lawyers. For example, one MIT professor claimed that deep packet inspection is not acceptable behavior for a network operator. Shocking! The FCC seemed to agree that deep packet inspection to detect peer-to-peer packets was unacceptable, but also said that “we make no judgment on the use of this method for different purposes, such as distinguishing legal from illegal content.”

Anyway, one of the obligations that the FCC placed on Comcast is that it must disclose to the Commission exactly what it was doing. Another obligation is that Comcast must disclose to the Commission and the public the details of the network management practices that it intends to deploy in the future.

Comcast will have to change its practices so that peer-to-peer protocols are not the only ones affected, and it has already agreed to do that. I predicted that the protocols would change, and indeed Comcast is working with an industry group to develop a new protocol, called P4P.

Comcast has decided to appeal the FCC’s decision to the D.C. Circuit Court of Appeals, even though no actual penalties were assessed. The dissenting statement of FCC Commissioner Robert McDowell lays out some useful arguments to use in court.

First and foremost, the FCC has never adopted any applicable rules. It adopted “policies” on Internet network neutrality, but not rules. While rules get incorporated in the Code of Federal Regulations, and have the force of law, it is not clear whether “policies” have the force of law. That’s a perfect topic for a court appeal.

Because it doesn’t have rules, the FCC has to proceed on a case-by-case basis, and just like with indecent TV programming, the FCC is making it up as it goes along. Chairman Martin calls this “adjudication.” McDowell calls it legally and procedurally deficient. The vehicle that led to the FCC’s decision was a “formal complaint” filed by Free Press. But McDowell cited the FCC rules that must be followed in filing a formal complaint, and Free Press violated those rules.

The other dissenter, Commissioner Deborah Tate, said: “It is important to highlight that effective network management plays a key role in protecting customers from spam, phishing, computer viruses and worms, Trojan horses, and denial of service attacks. If we tie the hands of network managers, there is a good chance this type of malware could neither be identified nor contained before affecting users.” She gets it.

Not for the first time, Chairman Martin, a Republican, got the votes of the two Democrats on the FCC, but the two other Republicans dissented. Anyway, in the future, Comcast will have to use network management practices that block all high-volume users, not just peer-to-peer users. Be careful what you wish for.

Editor’s note: Comcast has submitted documents to the FCC detailing its methods. These documents can be accessed at


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