FCC Puts Comcast on the Clock

Cable operator has 30 days to disclose network-management details; new practices must be in place by year-end.

Comcast is on the clock.

The Federal Communications Commission released the official order finding that the company's broadband-network-management practices were arbitrary and capricious and giving Comcast 30 days to "disclose the details" of those "unreasonable" network practices, as well as its plan for replacing them by year's end with network-management practices acceptable to the FCC.

If Comcast does not comply with that disclose order or fails to end the network practices at issue, the FCC will be temporarily enjoined from those practices, and permanently so if it could not justify why it should not be, and the issue would be put before an administrative law judge.

Saying that it was inviting the public and Comcast critics to keep an eye on the company, the FCC said the order did not terminate the proceeding, but would retain jurisdiction as it "trusts but verifies" Comcast's compliance.

Comcast already pledged to adopt a "protocol-agnostic" approach to network management by year's end, and has said it is working with BitTorrent on better ways to protect both the peer-to-peer file-sharing application and the cable operator's network-traffic flow.

But the FCC order said the commission was not sure whether Comcast planned to begin the switch-over to protocol-agnostic techniques by year's end, or to have completed that switch-over.

The FCC's order was in response to complaints by Free Press that Comcast was interfering with its customers’ use of P2P applications, notably BitTorrent, as well as its request for a declaratory ruling on just what constituted reasonable network management.

The FCC concluded that Comcast had a competitive reason to slow BitTorrent uploads since it is trying to grow its own online-video business and BitTorrent represented "a competitive threat" to cable.

Comcast argued that it was simply trying to keep bandwidth hogs from impeding network traffic for other users, but the FCC countered that it was not necessarily targeting high periods of traffic or congestion -- a point Comcast ultimately conceded, the FCC said.

Also key to the FCC's finding was its conclusion that Comcast had not sufficiently notified customers about what it was doing.

Comcast has said that it does not think its network-management practices were unreasonable, and it has argued that the FCC does not have the authority to enforce its network-nondiscrimination guidelines. The FCC said it has plenty of authority, citing a Supreme Court decision that "specifically recognized the commission's ancillary authority to impose regulations as necessary to protect broadband Internet access," as well as its general authority to regulate communications.

A Comcast spokesperson said the company was "examining the order and evaluating our options," but when the FCC released the order, Comcast defended its practices.

"We are disappointed in the commission’s divided conclusion because we believe 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,” Comcast spokeswoman Sena Fitzmaurice said at the time.

“We also believe the commission’s order raises significant due-process concerns and a variety of substantive legal questions,” she added. “We are considering all of our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays.”