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. Comcast must file its compliance report. What will Comcast do?
Comcast has a range of options. Comcast could refuse to comply, forcing the FCC to take action and potentially giving Comcast grounds to go to the D.C. Circuit for an emergency stay. I think that pretty unlikely, given what a big deal Comcast has made about complying.
Comcast could fully comply. But I have a nasty and suspicious mind and think that's as unlikely as total non-compliance.
What I expect is for Comcast to file something incomplete, possibly with a request for the FCC to protect its proprietary data. But more likely they will file something that will be just enough compliance to present Kevin Martin with a nasty political choice: Does he enforce the letter of Order and go in guns blazing against Comcast, knowing that Comcast will make great political hay of his supposed “vendetta” against them? Or does he let Comcast thumb their noses at him and — in addition to the humiliation factor — have public interest groups question whether he really intend to enforce the hard end-of-the-year deadline to entirely stop blocking p2p, and thus call his hard-won consumer protection credentials into question?
The situation is further complicated by the internal politics of the Commission. Whichever choice Martin makes (and he gets to make it himself, since it is an enforcement action and not subject to a vote of the full Commission), it is almost certain that two Commissioners will call him on it publicly. McDowell and Tate are almost certain to regard whatever fig leaf Comcast files as sufficient, whereas Copps and Adelstein will likely raise a hue and cry if Martin lets Comcast get away with filing an incomplete report.
As an aside, I also expect Comcast to file after close of business and to do so by hand rather than electronically, so that the content is not immediately accessible. I also do not expect to get a service copy, despite being counsel to complainants. That's perfectly legal for Comcast, as it can take the position that this is a report to the FCC and not a pleading that needs to be served on the complainant or complainant's counsel. But it does mean I don't expect to see what Comcast actually filed until sometime next week — or longer if Comcast asks for some kind of protective order.
Happily, I put my trust in the advice of the Bible and do not put my trust in princes — or FCC Commissioners. In this case, the pending Petitions for Review I filed (on behalf of Vuze, Consumers Union, and Pennpirg/CFA — neither Public Knowledge or Free Press are Petitioners) gives us a certain leverage, and Comcast will have to consider that it will have a tough time arguing my Petition is moot and pointless when they are not actually in compliance with the FCC's Order.
Perhaps I misjudge Comcast. It would certainly make my life easier if they just complied and filed something open that detailed their past practices and explained how they planned to go forward (including details of he 250 GB cap). In particular, I very much want to know if Comcast intends to exempt its own content from the 250 GB cap. That would be rather anticompetitive, and without any actual rational connection to the stated need to reduce last-mile congestion. Comcast originated packets running from the head-end to the subscriber take up as much capacity as non-Comcast originated packets.
See, there goes that nasty and suspicious mind of mine again. Still, I hope I'm wrong and Comcast comes clean.