Comcast Complaint Blog Entries

Back on August 20, the FCC released its Order resolving the complaint against Comcast for blocking P2P protocols. As part of the remedy, the FCC ordered Comcast to provide a full report on its current “network management practices” within 30 days, along with a transition plan for how it intended to manage traffic after it discontinued its current practices. The FCC then invited Free Press and anyone else interested to “keep a sharp eye on Comcast” and on the FCC’s enforcement.

Comcast has sworn up and down that it will comply with the FCC’s Order and it is only appealing in the D.C. Circuit as a matter of principle. I, having a nasty and suspicious mind, so doubt this noble intention that I have filed a law suit of my own to get the FCC to clamp down on Comcast now and not wait for future compliance. So, here we are at last on September 19, 30 days after the release and effective date of the Order.

Prior to setting a cap on the amount of bandwidth a high-volume customer could use before having service terminated, Comcast instead cut off a set number of users regardless of how much bandwidth they used, according to documents released by Florida Attorney General Bill McCollum.

Comcast announced at the end of August that it would impose the 250 GB usage cap on subscribers that had been hinted at for weeks. The cap, which takes effect Oct. 1, appears to cover uploaded material and downloads, given that Comcast’s example included the number of digital photos that could be uploaded.

In announcing the cap on its Web site, Comcast said: “We’ve listened to feedback from our customers who asked that we provide a specific threshold for data usage and this would help them understand the amount of usage that would qualify as excessive.” Comcast made its announcement on Aug.

For the second straight year, I addressed the EDUCAUSE/Cornell Institute for Computer Policy and Law, held at Cornell’s beautiful campus. The Institute gathers 50+ higher education information technology (IT) professionals – usually campus CTOs, librarians and legal counsels, and teaches them the substantive particulars of IT policy issues and advises them how to be strong advocates.

Later this month I will celebrate 20 years as a public interest communications lawyer. After two unhappy years in a private law firm, I walked into the small and cluttered offices of Media Access Project in August 1988 and never looked back. We spent most of our time in those early days trying to get broadcasters and cable operators to live up to their public responsibilities – impossible work in the laissez-faire Reagan-Bush I years. It was all mass media reform then. There was no technology policy, and the Internet was the stuff of geeks and academics, but the goals we had then were the same as they are today – to ensure a communications system that promotes creativity, civic discourse and democratic self-governance.

As Art discussed yesterday, the expected FCC decision on the Free Press/Public Knowledge complaint against Comcast for throttling Bit Torrent will be groundbreaking precedent. This is because among other things, a Bush Administration FCC will find that the agency has the authority under the Communications Act to protect Internet users from discriminatory network management practices like those used by Comcast.

But nobody should confuse “groundbreaking precedent” with an adequate solution to the problem of broadband service providers using their bottleneck powers to pick winners and losers on the Internet. Yes, the Comcast decision will be powerful and significant. But it will not be enough to check the telco-cable duopoly.

Here is why the Comcast decision has its limits: First, the decision will apply only to Comcast.

If all goes as we anticipate, a new era for the Internet could begin on Aug. 1, 2008. On that day, the Federal Communications Commission (FCC) is expected to decide that Internet users have rights under the communications law.

This is a spectacular victory, because not long ago the thought that a Bush Administration FCC would actually enforce its 2005 principles for an open Internet would have been laughable. The principles were the product of intense negotiations around an order that took telephone company DSL service out from under the protections of the Communications Act that protected consumers for 70 years. Democratic Commissioners Michael Copps and Jonathan Adelstein got the principles as the best deal they could get at the time from FCC Chairman Kevin Martin.

Now, thanks to circumstance and hard work, the Commission will make those principles into something concrete and meaningful.

As the Comcast/BitTorrent Complaint appears to wind down to its final conclusion, the critical questions revolve around whether the FCC has authority to resolve the complaint at all. Comcast argues that the FCC never gave any warning it would “enforce the policy statement,” that it has no basis for doing so anyway, and that even if the FCC had any authority, it would need to have a rulemaking to make rules first before it could resolve any complaints. At the same time, in a last ditch effort to avoid what looks like a total win for Free Press and the other parties to the complaint, Comcast has quietly floated the idea of a settlement decree. As bait for a settlement, Comcast holds out the risk of going to court and having the D.C. Circuit — famed for its open hostility to FCC ancillary jurisdiction and industry regulation generally — find that the FCC has no authority whatsoever to regulate broadband practices.

George Ou, the former Technical Director of ZDNet, has found a new job where he continues to lead the technology sector by publishing innovative thoughts and ideas – sometimes not necessarily his own.

For months, Comcast spokespeople have been deny, deny, denying that the FCC has the power to do anything about Comcast’s throttling of BitTorrent traffic. Now, in papers filed as part of a class action lawsuit against Comcast, Comcast has gone the opposite direction, asserting that because “these issues are within the subject matter jurisdiction of the FCC, and because the FCC is actively investigating them,” the judge should put the suit on hold until the FCC renders a decision. The court has agreed, staying the case until the FCC acts.

I just got back from a Senate Commerce, Science, and Transportation Committee hearing on the future of the Internet. Much was said on both sides of the panelist table, so I’ll just take a moment to hit some highlights: competition and innovation, media consolidation and content, and FCC authority. One disclaimer: this summary represents (of course) how I interpreted the statements at the hearing. Where I can, I’ve included timestamps into the video; if you want more detail, watch the hearing direct from the Senate’s web site. Also, check out our press release.