FCC 08-183 Considering Free Press and Public Knowledge Complaints Regarding Comcast

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FCC 08-183 Considering Free Press and Public Knowledge Complaints Regarding Comcast

Memo opinion and order

  • Adopted Aug 1, 2008
  • Released Aug 20, 2008
  • By the Commission

Contents

Summary

Question

  • Whether Comcast may selectively target and interfere with P2P over its cable broadband (1)

Comcast explanation

  • Interference is necessary to ease network congestion

FCC finding

  • Comcast practice is discriminatory, arbitrary, and
  • "Unduly squelches the dynamic benefits of an open and accessible Internet"
  • "Does not constitute reasonable network management" (1)
  • Comcast did not disclose to its customers, causing harm

FCC imposition

Within 30 days...

  • Comcast must disclose network management details
  • Submit compliance plan re: stopping this practice by the end of the year
  • Disclose to FCC and public the details of its new plan

Background

TCP

  • Continuous connection
  • If something goes wrong, a RST packet is sent signaling that the connection should be reset

BitTorrent

  • Leverages many TCP connections to distribute small chunks of a large file among many peers
  • Once used primarily by the "savviest" users for "unsavory or even unlawful purposes", it has many "mainstream" applications (3)

BT as competitor to Comcast

  • Enables HQ video that might compete with "on demand" services

First evidence of interference

  • Comcast customers noticed problems
  • Comcast reps said that they did not "throttle" traffic (3)

AP, EFF, consumers tests

  • AP conducted tests
  • Oct 17, 2007, AP reported that Comcast actively interferes with p2p (3)
    • Blocking
    • Slowing
    • Involves "falsifying network traffic" (3)
  • Comcast changed its story several times

Free Press files complaints with FCC

  • Nov 1, 2007
  • 20,000 Americans also complained
  • Jan 11, 2008, FCC asks Comcast for response
    • it arrives 2 weeks later

FCC begins research

  • 6500 comments received
  • Two public hearings with panels of "experts" (tech, legal, industry, aca)

Discussion

FCC Authority

  • Comcast resists the Commissions statutory authority (7)
    • FCC cites Brand X
  • Comcast insists that regulation of broadband must be "ancillary" to one of express statutory authority
    • FCC refers to section 230(b) of the Communications Act, Internet Service Policy

FCC goals wrt broadband

  • That broadband internet access should be "rapid" and "efficient"
  • That they should achieve "reasonable charges" (10)
  • Regulating common carrier (Title II) and public telecomm networks
    • The networks interconnect: if Comcast rejects traffic, the burden may be shifted to a DSL provider, thus incurring additional costs and unfairly competing
  • Encourage deployment
    • If network mangagement inhibits access, incentive to invest will drop (12)
  • On-going review to identify + eliminate "market entry barriers for entrepreneurs"
    • "Historically,... the growth of the Internet has been directly linked to its particular architectural design" (13)

"Reasonable network management"

  • According to FCC's "Internet Policy Statement"
  • "Consumers are entitled to run apps and use srvs of their choice"
  • "Subject to reasonable network management"

Previous rulings, opinions

Midwest Video

  • Regulated party argued that FCC didn't have authority based on stated objectives
  • SCOTUS held that the authority was based on those objectives (policies) but found elsewhere
    • (in April 2010 decision, they explain that this was a specific case misrepresented here.)

Comcast in US District Corut for Northern District of Cal

  • Urged the court to recognize FCC authority
    • (in April 2010 decision, SCOTUS suggests that this was based on not on recognition of authority but pending review by FCC which would determine jurisdiction)

Free Press complaint during Comcast/ Time Warner merger

  • Free Press complained
  • Commission provided that it could adjudicate such complaints in the future
  • Comcast did not seek judicial review, assent? (17)

FCC proceedings

Adjudication, not rulemaking

SCOTUS: "Problems [may arise] which must be solved despite the absence of a relevant general rule." (18)

  • Internet is new, as is network management, thus not "codifying judgement into a ... rule" (19)
  • Impossible to capture diversity of networks in a general rule (19)
  • Adjudication is "restraint"

Comcast asserts that adjudication may constitute "abuse" (20)

  • But FCC disagrees:
    • No fines
    • Consistent w previous policy
    • Comcast was previous warned to adhere to principles of the Internet Policy Statement
    • No broad ruling

Was adjudication a departure from a long-standing hands-off approach to info services?

  • FCC says no because it
    • Adopted Internet Policy Statement (IPS)
    • And notified Comcast specifically that it would begin to enforce it (22)

Resolving the dispute

Comcast clearly implemented a discriminatory management policy

  • Obfuscates its roles
  • Undermines Internet architecture
  • Is not "minimally intrusive" (24)
  • Experts call it "possible consumer fraud" and "unacceptable behavior" (28)
  • Selective blocking might be anticompetitive abuse (28)
  • Not narrowly tailored to easing network congestion (29)
  • Not content neutral
    • (Similar to time, place, manner)

Many possible alternative policies

  • Including price discrimination and bandwidth caps

Disclosure

  • Customers may blame apps instead of service provider
    • Anticompetitive
  • Terms of Use employs "vague terms" of "no practical utility to average customer" (32)
  • First reaction to complaints was "not honesty, but ... misdirection and obfuscation" (32)

Remedy

Comcast must stop

  • Reasonable transition period (~1 year)
  • Within 30 days
    • Disclose past network management to FCC
    • Submit compliance plan to FCC
    • Disclose details of new plan

If they fail either 30 days or 1 year reqs

  • Comcast forced to stop
  • Comcast ordered to explain why it should not be subject to permanent c&d (33)
  • Hearing date will be set

Statement from Chairman Martin

"Consumers demand, and deserve, better."
  • "Failure to act here would have reasonably led to the conclusion that new legislation and rules are necessary." (40)
  • "It was incumbent upon us to order Comcast to stop the practices and disclose them to us." (41)

Framework for evaluating reasonable network management complaints

  • Recognizing the importance of legit net mgmt
  • While giving the FCC a framework with which to analyze carriers on a case-by-cases basis (48)

Criteria

  • Are the net mgmt practices intended to distinguish legal / illegal activities? (46)
  • Is the ISP willing to disclose the details of its practices? (46)
    • For consumers, content developers, regulators, entrepreneurs, competititors (46-7)
  • Is it selectively blocking or degrading a particular application?
    • If so, this practice demands greater scrutiny
    • There must be an interest to which the practice is narrowly tailored (47)

Statement of FCC Commissioner Copps

"Careful balance"

"We do give consumers who feel their Internet experience is being unreasonably interfered with a right to seek help at the Commission." (51)
  • Do not stop engineers from developing improvements (51)

FCC crossroads in history

"Down one path was a Commission committed to preserve and honor the openness of the Internet ... down the other road was a Commission that ... refused to apply its principles and sat idly by while broadband providers amassed the power and technical ability to dictate where we can go and what we can do on the Internet. Today we choose the open road." (51)

Jump offs

  • Commissioner McDowell, op-ed, Washington Post

Statement of Commissioner Jonathan S. Adelstein

Dissenting statement of Commissioner Tate

"Reasonable minds truly can differ" (58)
  • Case-by-case analysis
  • Not a monumental decision
  • "Perhaps the best way for the FCC to fulfill our duties ... is to assume the role of mediator or arbitrator" (58)
  • Consumers ill-served by "communication gap" regarding management
  • Concerned that "carefully tailored" management practices may reduce effectiveness of ISP efforts to curb "illegal content" downloading and child porn (59)
  • Industry already had "underway" remedies that would address unlawful network activities
  • FCC should follow deregulatory path if it is "truly looking to improve the consumer online experience"
    • Is this a limited view of the possibility? Polishing a turd? (60)

Dissenting statement of Commissioner Robert M. McDowell

"All of us can agree ... the Internet should remain open and free ... and the policies ... should promote such freedom ... Network operators could do a better job of educating consumers." (61)
  • P2P "providers" could do a better job of making consumers aware that their apps require 24/7 activity that might slow neighbors' connections (61)
    • (Widespread misunderstanding of the technology...)
  • But this will fail on appeal

Administrative agencies are interesting creatures

"We are not part of the executive, legislative, or judicial branches ... yet we have quasi-executive, quasi-legislative, and quasi-judicial powers." (61)

"Formal complaints"

  • First, "formal complains" apply only to common carriers (61)
  • Second, FCC must assess if it has jursidiction
    • In this case, the FCC has been "busy" taking broadband out of Title II common carriage
    • Classifying them as "unregulated" Title I information services (62)

"Internet policy statement"

  • Not intended as enforceable rules
  • Statement of general policy guidelines (62)
  • "Nothing regulating Internet network governance has been codified in the Code of Federal Regulations" (63)

Ancillary authority

  • "Legally deficient"
  • "Unpersuasive" re: previous cases, "very different adjudicatory proceedings" (63)
"If the FCC already possessed the authority to do this, why have bills been introduced giving us the authority we ostensibly already had?" (63)

Strict scrutiny

  • FCC has never used "strict scrutiny" to assess the actions of private entities as it does here
    • (Referring to the T, P, M-like criteria) (64-5)

Anticompetitive?

  • Why wouldn't Comcast have interfered with YouTube or Joost? (65)
  • Better software, doesn't clog network

Public interest

  • If, indeed, the policies being presented are so "procedurally and legally deficient", do they serve the public interest? (65)
  • Asserts that the new policies could result in "slower online speeds for 95 percent of America's Internet consumers" (65)
    • Where is this number coming from?
  • "None of us has an engineering degree" (65)

Discrimination

  • Discrimination does not necessarily mean "anticompetitive conduct" (65)
  • Compares new policy to "gridlock"
    • But where in the policy are such technical determinations made?
    • Refers to "distortion, pops, and hisses" - also misunderstanding the function of online video (66)

"Wiki" style governance

  • Refers to RFC system
  • But Comcast's actions were NOT in the spirit of this history
  • Nor is this history free of government intervention! (66)

Future role of FCC

  • Spotlighting complaints for review by IETF (67)
  • Not regulator
  • Nor arbitrator

Spotlighting strategy

  • By giving attention to the complain, FCC may have encouraged agreement between BitTorrent and Comcast
  • But BitTorrent (protocol) is not the same as BitTorrent (corporation) (67)
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