Intellectual Property Law

FCC Chairman Doubts Comcast's P2P Statements

By Cynthia Brumfield

FCC Chairman Kevin Martin testified today at the Senate Commerce Committee's hearing on The Future of the Internet (Word). During his testimony, Martin laid out a framework for how the FCC will evaluate complaints regarding broadband providers' network management practices and accused Comcast of using a "blunt" instrument to manage P2P traffic. He further alleged that Comcast is not quite, well, truthful about how its bandwidth management system works.

In terms of the framework, Martin said that, first, the FCC should consider whether the network management practices are intended to distinguish between legal and illegal activity and that the Commission can't recognize users' access to illegal content, such as child pornography or "content that does not have the appropriate copyright."

But, as is the case with most P2P applications, the mere fact that it can be used for both legal and illegal purposes is not enough to justify broadband operator interference. "If the concern is about stopping certain illegal content, a network provider should not block a particular application to all users if that application transmits both legal and illegal content," Martin said.

Secondly, the FCC should consider whether users and developers have received adequate disclosure regarding the operator's network management practices. "Consumers must be fully informed about the exact nature of the service they are purchasing and any potential limitations associated with that service," he said.

Finally, network management practices that "selectively identifying particular applications or content for differential treatment" should be viewed with heightened scrutiny, although they would not be considered automatic violations. This framework recognizes "the importance of legitimate network management techniques while giving the Commission the framework to analyze carriers actions on a case-by-case basis," Martin said.

Martin said the FCC hasn't finished its review of the Comcast complaint (although I hear otherwise, btw) but had few kind words for the nation's top cable company. The packet reset throttling technique Comcast deployed is a blunt instrument whereas "more modern equipment can be finely tuned to slow traffic to certain speeds based on various levels of congestion" in lieu of intermittently blocking file uploading.

He challenged Comcast's characterization of its P2P management technique, saying that it is not content neutral because it blocks a specific kind of application and that Comcast's repeated claims that its customers can do anything they want to on the Internet are not true because they can't upload P2P files very easily.

Martin's most damaging allegation, however, is that Comcast is not truthful when it says it only blocks P2P during periods of network congestion. Based on testimony the FCC received, the equipment Comcast uses to implement its filtering system "does not appear to have the ability to know when an individual cable segment is congested. It appears that this equipment blocks the uploads of at least a large portion of subscribers in that part of the network, regardless of the actual levels of congestion at that particular time," Martin said.

He also complained that despite Comcast's contention that it will switch to a protocol agnostic content management system by year-end, the FCC still doesn't know when the operator will stop throttling traffic. Martin is fearful that Comcast may merely start deploying this new system with no actual deployment end date identified.

Full post as published by IP Democracy on April 22, 2008 (boomark / email).