FCC vote backs 'Net neutrality'

By Kara Rowland (Contact)

Originally published 07:21 p.m., August 1, 2008, updated 11:29 p.m., August 1, 2008

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The Federal Communication Commission on Friday sided with advocates of "net neutrality," voting to censure Comcast Corp. for interfering with its broadband customers' use of file-sharing applications.

The FCC voted 3-2 to reprimand Comcast for deliberately slowing access to BitTorrent Inc., a file-sharing application often used to share videos and other large files. The FCC order did not include a fine.

The highly anticipated decision seeks to affirm the FCC's authority to enforce a policy that consumers are entitled to use the Internet applications and services of their choice. Some critics had questioned the agency's power to punish companies that violated principles laid out in the September 2005 policy statement.

The case stems from a complaint filed against Comcast by advocacy groups Free Press and Public Knowledge, proponents of net neutrality that believe Internet service providers (ISPs) should be required to treat all types of applications equally and not discriminate against those that hog bandwidth.

ISPs, meanwhile, have argued that network engineers should have leeway in managing the flow of Web traffic over their networks to ensure that users sharing files don't degrade service to other subscribers.

The FCC called on ISPs to refrain from blocking and delaying Internet traffic and to disclose their network management policies to customers. In addition to throttling BitTorrent files, Comcast was criticized for concealing its practices.

"Would you be OK with the post office opening your mail, deciding they didn't want to bother delivering it, and hiding that fact by sending it back to you stamped 'address unknown return to sender?' Or if they opened letters mailed to you, decided that because the mail truck is full sometimes, letters to you could wait, and then hid both that they read your letters and delayed them?" said FCC Chairman Kevin J. Martin, a Republican.

The order gives Comcast 30 days to disclose details of its "discriminatory network management practices" to the agency as well as a plan outlining how it intends to stop them by the end of the year. Comcast must also disclose to customers and the agency a new policy that complies with the ruling. Mr. Martin said the agency did not impose a fine in the event there was any confusion about what was allowed and what wasn't.

He joined the commission's two Democrats, Michael J. Copps and Jonathan S. Adelstein, in supporting the order, which stopped short of spelling out in detailed technical terms what constitutes "reasonable" network management. Rather, the majority appeared to issue general guidance in favor of a case-by-case consideration.

"The most important thing we did impose is a requirement for them to disclose what they're going to be doing to the commission and to their customers going forward," Mr. Martin said. He also stressed that companies' ability to block illegal sharing of unlawful content, such as copyrighted material or child pornography, was not impacted.

Comcast spokeswoman Sena Fitzmaurice said the Philadelphia-based cable provider is considering its legal options.

"We believe that our network management choices were reasonable, wholly consistent with industry practices and that we did not block access to Web sites or online applications, including peer-to-peer services," she said.

One month after the FCC held a public hearing in Boston on the matter, Comcast in March announced it was cooperating with BitTorrent to address questions over network management and would transition to an application "agnostic" technique by the end of the year.

But Marvin Ammoricq, general counsel for Free Press which filed the complaint against Comcast in the wake of an Associated Press investigation said FCC intervention was nevertheless necessary. "The last thing we want is for every small company to cut a special deal with Comcast or Cox or Verizon to make sure their Web site works," he said.

Republican Commisisoners Deborah Taylor Tate and Robert M. McDowell dissented from the decision, describing it as undue government intervention.

"History teaches us that we are all better off if we reject the rhetoric of the extremes on both sides and resolve technological disputes through collaboration and negotiation," Mr. McDowell said. "Looking back through the long lens of time, it is obvious that the Internet is the greatest free-market success story of all time precisely because conflicts were resolved in this manner."

A bill currently pending before Congress that would codify the commission's policy statement into federal law, a move Mr. Martin said Friday's action proves would be unnecessary.

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