Comcast’s Cohen on Hot Seat at FCC En Banc Hearing

Federal Communications Commission Chairman Kevin Martin Grills Comcast Executive Over Network Management

By John Eggerton -- Broadcasting & Cable, 2/25/2008 4:14:00 PM

Federal Communications Commission chairman Kevin Martin pressed Comcast executive David Cohen Monday on whether he thought the FCC had the authority to fine the company if the agency concluded that it had not held to its nondiscrimination guidelines for Internet service.

That came in an FCC public hearing on broadband-network management held at Harvard Business School.

Martin began the hearing by telling people that they should file video comments about the issue using a setup organized outside of the hearing by Free Press, an anti-consolidation group that has been highly critical of the chairman.

The FCC in 2005 established guidelines preventing the blocking of access to content or applications but subject to reasonable network management. Just as defining network neutrality has been difficult, so, too, has deciding what constitutes reasonable management of a network and what constitutes blocking of an Internet application or service

Comcast conceded, and Cohen did so again Monday, that it briefly -- and Cohen said almost imperceptibly -- impedes the flow of some peer-to-peer traffic at peak times when it can degrade the user experience for all users of the network. It also said that is subject to its stated agreement with subscribers.

Martin also conceded that some network management is necessary, but alone among the commissioners focused almost exclusively on the complaint against Comcast's blocking/impeding/network managing of BitTorrent traffic.

The chairman said he was concerned primarily with the effect on consumers. He added that networks can't be prevented from reasonable network management, but that should not mean arbitrary blocking of applications or services.

He said one key should be transparency -- that networks should be clear about when and how they are managing their networks. He added that he was taking the complaints seriously and that the FCC would step in if necessary.

Martin's line of questioning appeared calculated to frame the case against Comcast. He asked P2P file-sharing executive Gilles BianRosa, CEO of Vuze, whether it was legal content that was allegedly being blocked -- he said it was -- with Martin saying that meant suggesting that the operator was blocking illegal content didn't apply.

He also established that P2P users were not taking up any more bandwidth than the maximum they were told they had access to.

Martin also asked whether bandwidth-constrained cable operators have a "pernicious incentive" to block a service like video provider Vuze because it favored their own competing video services. He got no argument from BianRosa.

And he invoked the issue of a la carte cable, saying that viewers might be paying more for cable online service if they were paying for access that was being constrained without their knowledge.

Cohen said customers were not paying for specific bandwidth, but for speeds up to a maximum with the understanding that they would be affected by network usage, and also with the understanding that Comcast could step in to manage the user experience for everyone, including briefly delaying some traffic at peak periods.

Cohen added that Comcast does not block access to applications or content, including BitTorrrent, but panelists on the P2P side argued that in some cases delay was the same as blocking because impatient surfers would not wait.

Martin argued that the FCC does not need any additional congressional authority to punish networks that block access. Cohen disagreed, saying that Comcast doesn't think the FCC has the authority to enforce guidelines the agency itself explicitly said were not enforceable principles.

Cohen said it might be a different matter if the FCC went through the rulemaking process and adopted such rules going forward. “But if we order you now to stop blocking, could we?” Martin asked.

Cohen, while not conceding that the company was blocking traffic, said he wasn't 100% sure.

Martin was not the only one to take aim at Comcast. Marvin Ammori, general counsel for Free Press, which filed a complaint against Comcast , said the company was "deliberately targeting and interfering with legal peer-to-peer technologies for allegedly blocking BitTorrent peer-to-peer traffic."

And while she was not in attendance, Public Knowledge President Gigi Sohn weighed in in a statement after the over five-hour marathon concluded.

“It is plainly obvious from the hearing that Comcast’s actions in throttling consumer use of a legal application like BitTorrent are indefensible.  A number of witnesses made the point that there are legitimate ways to manage networks according to accepted network standards, and ways not to manage networks.  Comcast’s clearly sidestepped normal network practice while violating the FCC’s policy guidelines for a non-discriminatory Internet."