A look at what adopting open Internet principles will mean for Comcast and other ISPs
Network neutrality advocates scored a victory last week when FCC chairman Kevin Martin said that he would recommend barring Comcast from using peer-to-peer traffic management practices that target individual protocols for slowing or blocking.
In discussing his recommendation with reporters, Martin criticized Comcast for blocking access to content through its traffic management policies and for not being forthright in explaining to its customers precisely what its traffic management practices were. Martin also said he would recommend that the commission rule that Comcast had violated the FCC's open Internet principles and that it stop using such techniques.
ISPs' methods for managing P2P traffic have come under intense scrutiny in recent months after the Associated Press reported last year that Comcast was actively interfering with its customers' ability to upload files with P2P protocols by sending TCP RST packets to BitTorrent users informing them that their connection would have to be reset. Because the RST packets did not appear to be sent directly from the company, critics accused Comcast of deceiving its customers and actively blocking their ability to share files online. Although Comcast has said it doesn't actively block any P2P protocols and merely "delays" P2P uploads during times of heavy congestion, the company has agreed to change its P2P traffic management policies and stop targeting traffic such as that of BitTorrent.
Any FCC ruling on Comcast's traffic management practices will be based on the policy statement adopted in 2005 stating that "consumers are entitled to access the lawful Internet content of their choice" and "consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement." While these principles might seem like broad mandates of network neutrality for all ISPs, the commission qualifies them at the end by writing that they are all "subject to reasonable network management." While Comcast and its critics have sparred for months over what constitutes "reasonable" network management, Martin has apparently decided for the first time to draw the line and rule Comcast's practices out of bounds.
Marvin Ammori, the general counsel for net neutrality advocates Free Press, says if the FCC affirms Martin's recommendations, it will set an important precedent in enforcing the commission's principles for an open Internet. He also thinks that an affirmative decision would definitively force Comcast to change its traffic management practices in the immediate future rather than on its own timetable.
"The agreement with that Comcast made with BitTorrent was remarkably murky," he says. "Comcast said that it was going to try to move away from what it has been doing, but we're not sure what exactly what Comcast agreed to, if anything. This decision by the FCC will have a broader precedential value, since it's not just a private deal between BitTorrent and Comcast."
Network architect and inventor Richard Bennett, who has long been critical of net neutrality advocates, says he has some concerns about the precedent the FCC sets if it votes to affirm Martin's recommendation. In particular, he worries that the principles in the FCC's policy statement are far too broadly defined and they will be used to encumber upon traffic management practices that are necessary for ISPs to keep their QoS high for the majority of their customers. Bennett says while ISPs should be barred from engaging in anticompetitive behavior by actively discriminating against rival online content, it should be allowed to slow or even stop transfers that are degrading the Web experience for other users.
"Even in this case where the FCC has banned the used of application-based discrimination, it's perfectly reasonable for ISPs to discriminate against applications on behalf of a particular user," he says. "Say you've got two customers, and one is using VoIP and the other is using BitTorrent. You're going to need to give VoIP traffic preference over BitTorrent in order to ensure quality of service."
As for Comcast, the company has so far voiced disagreement with Martin's decision for enforcing the open network policy statement, and has said the commission "has never before provided any guidance on what it means by 'reasonable network management,'" and thus should not be enforcing principles that it has so far not concretely defined. Added to this, Comcast says it has changed its network management practices to target individual heavy users that are uploading large files during peak hours, thus lessening the need for the FCC's involvement.
Even so, Ammori says, Comcast shouldn't be all that surprised about the FCC's ruling, because the basic principles outlined in the 2005 policy statement have had the support by commissioners from both political parties.
"It's strange to think that this has become a partisan issue," he says. "When the FCC adopted their policy statement in 2005, they made a unanimous decision to enforce an open 'Net, and to make sure that network providers don't block or degrade Internet traffic or applications."