Intellectual Property Law

FCC Rules Comcast Cannot Limit Data Downloads

By IBLS Editor

In a decision meant to protect the vitality of the Internet, the Federal Communications Commission has reacted strongly to Comcast Corp.'s decision to limit the amount of bandwidth to its customers. Bandwidth is the measure of how much data a customer has streaming into their computer from the Internet. The FCC said, "Comcast Corp.'s management of its broadband Internet networks contravenes federal policies that protect the vibrant and open nature of the Internet." The action came down August 1, 2008 in a decision called "In the Matters of Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications." Comcast is currently appealing the decision.

FCC Chairman Kevin Martin said the Commission acted "to protect consumers' access to the Internet. Comcast is the largest cable provider in the U.S, with 14.4 million Internet users. The FCC's decision was hailed by Internet Free Speech advocates who claim that Comcast's action would hasten a chilling of user's rights across the web. Internet user watchdogs groups Free Press and Public Knowledge complained to the FCC on November 1, 2007, saying Comcast "is secretly degrading innovative protocols used for transporting and sharing large files, like high-quality television programming and movies.'' The FCC gave the Philadelphia-based company 30 days to offer details of an "unreasonable network management practices'' and reveal their plans to change these by year's-end. The Free Press and Public Knowledge watchdog complaint pointed out those degrading peer-to-peer protocols undermines innovation, violating the FCC's Internet Policy Statement. The complaint stated the four principles the FCC protects, being "consumers access to the content, applications, and services of their choice, as well as access to competition among network, applications, and content providers."

The constitutional basis of FCC rulings, which are legally binding, is the authority given them under section 706 of the Telecommunications Act. The FCC's mission is to help promote advanced telecommunications capability...without regard to any transmission media or technology. The FCC claims that "We predict that prohibiting network operators from blocking or degrading consumer access to desirable content and applications on-line will result in increased consumer demand for high-speed Internet access and, therefore, increased deployment to meet that demand."

Comcast has been limiting the top Internet speeds for targeted customers, which it plans to reduce for periods lasting 10 minutes to 20 minutes, designed to keep service to other users flowing, according to Mitch Bowling, Comcast's senior vice president and general manager of online services. Before the ruling was released, the company announced it planned to begin officially limiting service to residential customers starting October 1.

Comcast responded to its customer's concerns, by listing a FAQ section on the issue regarding how user bandwidth was capped to a monthly data usage rate of 250 GB/month per account for residential customers. Comcast claims that this is an enormous amount of data, which they point out, could be used to send 50 million emails, or download 62,500 songs, or download 125 standard-definition movies, or upload 25,000 hi-resolution digital photos. A typical Comcast Internet subscriber uses less than 3GB of bandwidth per month.

But the State of Florida did not agree with how Comcast was already limiting bandwidth amounts, and decided to institute action. Florida Attorney General Bill McCollum reached an agreement with them. In an Aug 29th news release, Florida announced the problem was that instead of limiting customers to a certain pre-specified bandwidth, Comcast was arbitrarily cutting off the top 1,000 users, despite the actual amount of bandwidth they used. Comcast had not previously stipulated the limits of bandwidth a customer could use. Comcast agreed to pay the State's Economic Crimes Bureau $150,000 to resolve "concerns over disclosure issues related to bandwidth use policies."

While Comcast claims it was merely trying to cut down on the activities of Peer to Peer (P2P) file sharers, a key reason is cost-cutting. The company is already weighing whether to charge subscribers more for heavier Internet use. Currently, Time Warner Cable Inc., the second-largest U.S. cable company, is testing metered pricing in Beaumont, Texas. Comcast now plans to determine "in nearly real time" if a heavy user is causing congestion, according to Bowling.

Free Press claims that if Comcast is allowed to continue the bandwidth capping, this will result in "Irreparable Harm." The watchdog group claims that such harm will come from three factors: First, harm that cannot be quantified in fines, because the damage is un-quantifiable. Second, the harm is also not reasonable, since it would be in the billions of dollars, and Comcast could not hope to pay such damages. Third, since damages to fundamental rights cannot be put into dollars, such burdens are not able to be covered. The Supreme Court has stated on this, "Loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."

Full post as published by IBLS Internet Law Blog on September 08, 2008 (boomark / email).