The Federal Communications Commission (FCC) came down on the side of Net Neutrality yesterday. Hard. Misconduct by Comcast was the immediate cause of the Commission’s action, which should have a significant impact on the behavior of all Internet carriers from this point forward. Video of the hearing that resulted in the decision is available on C-SPAN with a browser configured to use RealPlayer over rtsp.
The press release from the Commission sums up the case and their disposition nicely.
“The Commission concluded that the end result of Comcast’s conduct was the blocking of Internet traffic, which had the effect of substantially impeding consumers’ ability to access the content and to use the applications of their choice. The Commission noted that the record contained substantial evidence that customers, among other things, were unable to share music, watch video, or download software due to Comcast’s misconduct.”
The road to this decision was a long and winding one. As the Commission staff writes, Comcast was not just cooperative, but obstructionist, in its response to the investigation.
“The Commission’s action today is the result of an exhaustive examination of conduct that was first brought to light by Comcast subscribers who noticed that they had problems using peer-to-peer applications, such as BitTorrent, over their Comcast broadband connections. When first confronted with press reports about these difficulties, Comcast disclaimed any responsibility for its customers’ problems. However, after tests conducted by the Associated Press and Electronic Frontier Foundation suggested that Comcast was selectively interfering with attempts by customers to share files online using peer-to-peer applications, Comcast changed its story and admitted that it did target its subscribers’ peer-to-peer traffic for interference. The company initially claimed that it did so only during periods of peak network congestion and of heavy network traffic. Later, confronted with yet more evidence suggesting that interference was not limited in this manner, Comcast recast its position yet again and admitted that it interferes with peer-to-peer traffic regardless of the level of overall network congestion at the time and regardless of the time of day. The Commission’s extensive investigation into this matter which included two public hearings, substantial input from experts, and thousands of comments from companies, organizations, and the public at large – confirms that Comcast’s interference is far more invasive and widespread than the company first conceded.”
Contrary to the assertions of industry flacks and the minority, the majority did not base their decision on ideology. Chairman Martin, who does not favor new legislation establishing Net Neutrality, voted for the order in part to forestall such legislation:
“The specific practice Comcast was engaging in has been roundly criticized and not defended by a single other broadband provider. If we aren’t going to stop a company that is looking inside its subscribers’ communications (reading the “packets” they send), blocking that communication when it uses a particular application regardless of whether there is congestion on the network, hiding what it is doing by making consumers think the problem is their own, and lying about it to the public, what would we stop? Failure to act here would have reasonably led to the conclusion that new legislation and rules are necessary.”
The extensive nature of the Commission’s investigation is highlighted by Commissioner Copps:
“We began by taking the allegations and our responsibility to foster an open Internet seriously. Then we took the time to gather, analyze and assess the evidence. We heard from the leading engineers and experts in the field and received 6,500 comments from a broad array of interested parties. The Commission ventured beyond the Beltway and conducted two en banc hearings that included numerous expert witnesses and extensive opportunity for public testimony. This process allowed us to better understand what in fact the case involved and who was impacted by the practices in question. We did the requisite analysis and a majority today moves forward. Here, Comcast deployed equipment using deep packet inspection to identify peer-to-peer uploads. Comcast determined when to send reset packets to terminate a user’s connection in order to manage its network. The practice limited consumers’ ability to access the lawful Internet content of their choice. And, as the Commission correctly concludes, it was discriminatory and not carefully tailored to address the company’s concerns about network congestion. (In fact, it prevented peer-to-peer customers from making uploads regardless of whether there was network congestion at that time.) Further, Comcast’s level of disclosure to its customers was clearly inadequate. As the Order finds, no one could reasonably have known, prior to filing of the Complaint, that peer-to-peer protocols were being discriminated against on Comcast’s network.”
Of course the freedom of Internet communications from interference by either commercial or public interests is not something that a single order by a national communications regulator can ensure. This is a struggle that will continue on. Commissioner Adelstein put it succinctly in closing his statement:
“It is apparent that some parties want the Commission to have no role at all. Such an approach, however, is not consistent with Federal law and Internet policy and would abdicate our critical role in fulfilling Congress’ objectives. As this Order acknowledges, we must make it a priority to ensure that the Internet remains open and that the broadband market remains competitive.”