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Tuesday, 05 August 2008 06:16

FCC orders Comcast to stop arbitrarily blocking Internet traffic

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In a move that will be welcomed by net neutrality advocates, the US Federal Communications Commission has slammed Comcast for selectively blocking its customers' peer-to-peer traffic. The FCC has also ordered Comcast to take a number of measures to rectify the situation.

In November 2007, Free Press, Public Knowledge and other organisations including the Berkman Center for Internet & Society at the Harvard Law School filed a petition for declaratory ruling, asking "the FCC to clarify that an Internet service provider violates the FCC's Internet Policy Statement when it intentionally degrades a targeted Internet application" such as BitTorrent.

The FCC decision to uphold the petition was reached by a 3:2 majority after receiving evidence from engineers and other experts, plus 6500 comments from interested parties.

If the FCC is to believed, Comcast's behaviour in the matter has been questionable to say the least. The FCC statement asserts that the company initially claimed it had no responsibility for the peer-to-peer problems its customers were reporting, then that it only interfered with such traffic during times of network congestion, and finally that it interfered with peer-to-peer traffic regardless of the time of day or the degree of network congestion.

Comcast has been ordered to provide details of its discriminatory network management practices, a plan to stop such practices by the end of the year, and disclose to its customers and the FCC the practices that will be adopted in their place.

Why do I believe some commentators are misrepresenting the ruling? Find out on page 2.


Some commentators are trying to cast the decision as contradictory, but I believe that is based on a misinterpretation of what the commissioners are saying. The FCC is not saying that Comcast (or any other ISP) is not entitled to manage its network by restricting the amount of bandwidth available to individual customers. What it does say is that such measures should not be arbitrary.

Traffic shaping is acceptable when networks are congested, providing it is applied to those parts of the network suffering from congestion. It is not acceptable to single out a particular type of traffic, especially when that would mean interfering with a customer using a small amount of bandwidth at a time when the network is not congested.

FCC chairman Kevin Martin explained the situation this way: "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?"

What made Comcast's practices worse was that "a customer may use an extraordinary amount of bandwidth during periods of network congestion and will be totally unaffected so long as he does not utilize an application disfavored by Comcast."

The FCC held that Comcast had an anticompetitive motive to block peer-to-peer traffic as it provides users with "the opportunity to view high-quality video that they might otherwise watch (and pay for) on cable television" such as Comcast's video-on-demand service.

Page 3 highlights the part of the commissioners' reasoning that is being overlooked - perhaps deliberately - by critics.


Furthermore, Comcast's behaviour in failing to correctly advise customers of its interference with certain traffic was anticompetitive as customers were likely to blame their applications rather than Comcast for the problems they experienced, thus disadvantaging those programs in the market.

Commissioner Michael Copps made an important point that seems to have been overlooked by some commentators that have only read the FCC's main press release: "I also emphasize that discrimination is not per se wrong. It is unreasonable discrimination that is wrong." [His emphasis.]

Yet Commissioner Robert McDowell, one of the two dissenting voices, claims "the practical effect of today's order requires all network operators – cable, telcos and wireless providers – to treat all Internet traffic equally."

Both McDowell and Deborah Tate (the other commissioner voting against the decision) express concern about the majority of Internet users. "[R]ather than concentrating on 10% of the traffic by 5% of the heaviest bandwidth users, we should be ensuring that the 95% of ordinary subscribers are not negatively impacted as they use their internet for their child's homework, shopping, getting news, sending emails and watching TV and YouTube," was the way Tate expressed it.

While that's an obvious rallying cry for getting Mr and Ms America aboard  McDowell and Tate's non-interventionist position, the fact remains that if Comcast or any other ISP was allowed to arbitrarily interfere with their customers' peer-to-peer traffic, it could just as easily decide to block access to TV sites such as those operated by the US networks, or to YouTube.

When does "reasonable" network management need to come into play? Please read on to the final page.


If it could do that without telling its customers, they would be left thinking the fault was in their systems or the services concerned - just as originally happened with Comcast's interference with peer-to-peer traffic.

The fact remains that reasonable discrimination is sufficient to deal with Tate's concerns. If there's enough network capacity, then blocking or limiting peer-to-peer traffic will make no difference to the service received by "ordinary subscribers."

As congestion occurs, "reasonable discrimination" can ensure that people using small amounts of bandwidth aren't disadvantaged by the presence of others running any type of application that involves large amounts. Even if you are on a shared-medium system such as cable, you don't really care how much bandwidth your neighbours are using, as long as you can get your share when you want it.

Indeed, the asynchronous nature of most peer-to-peer applications (download now, watch later) is arguably more considerate of others than video being streamed directly from a server, at least when reasonable network management measures are applied. The latter needs a relatively steady flow of data to keep the buffer ahead of playback, where a peer-to-peer transfer can run in fits and starts with no detriment other than an increase in the elapsed time needed to complete the transfer.

Nations should not be afraid to regulate businesses. Their first duty is to protect their citizens, and sometimes that means protection from arbitrary decisions made by businesses.


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Stephen Withers

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Stephen Withers is one of Australia¹s most experienced IT journalists, having begun his career in the days of 8-bit 'microcomputers'. He covers the gamut from gadgets to enterprise systems. In previous lives he has been an academic, a systems programmer, an IT support manager, and an online services manager. Stephen holds an honours degree in Management Sciences and a PhD in Industrial and Business Studies.

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