Feeds

Comcast accuses FCC of impotence

'Your policies mean nothing'

Beginner's guide to SSL certificates

Comcast has told the chairman of US Federal Communications Commission that he has no legal right to prevent the company from busting BitTorrents.

The FCC is currently investigating claims that the big-name ISP put a choke hold on BitTorrents and other P2P traffic. But clearly, Comcast believes this is an epic waste of time.

With a recent FCC filing (PDF), Comcast executive vice president David Cohen informed Chairman Kevin Martin that even if the ISP is guilty of violating the commission's Internet Policy Statement, the commission doesn't have the power to do anything about it. And from where we're sitting, it looks an awful lot like Cohen is threatening legal action if the commission says otherwise.

"The congressional policy and agency practice of relying on the marketplace instead of regulation to maximize consumer welfare has been proven by experience (including the Comcast customer experience) to be enormously successful," Cohen says. "Bearing these facts in mind should obviate the need for the Commission to test its legal authority."

If you're a Comcast customer, we would like to know if your experience has proven that the ISP marketplace maximizes consumer welfare. After all, in many areas of the US, the marketplace amounts to no more than one or two options. Keep in mind, however, that if you contradict Comcast, you will be contradicting the "facts."

Members of the SaveTheInternet.com coalition contradicted the "facts" back in Nov., when they first urged the FCC to crack down on Comcast's treatment of BitTorrent traffic. Independent tests have shown that the ISP is preventing users from "seeding" BitTorrents and other P2P files. When one machine downloads a file and promptly attempts to upload that file to another machine, in certain cases, Comcast sends out a duped "reset flag" that breaks this peer-to-peer connection.

The SaveTheInternets are adamant that in doing so, Comcast has run afoul of the FCC's 2005 Internet Policy Statement, which says that US Internet users are "entitled to run applications and use services of their choice."

At first, Comcast countered this argument by pointing out that the Policy Statement allows for "reasonable network management" and that it's BitTorrent throttling was nothing less than reasonable. And some experts have agreed. But now the company is saying it doesn't really matter whether the practice is reasonable or not.

"There are several reasons why the Commission cannot lawfully issue an injunction against Comcast with regard to the provision of Internet services, even were it to conclude - contrary to what we have demonstrated in our previous communications with the Commission - that Comcast's behavior is inconsistent with the Internet Policy Statement," reads David Cohen's FCC filing.

At one point, Cohen says "It is settled law that policy statements do not create binding legal obligations. Indeed, the Internet Policy Statement expressly disclaimed any such intent."

Meanwhile, the Policy Statement very plainly says that the FCC has the "jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner." But Cohen may have some sort of point. When the Policy Statement was unveiled, Chairman Martin did say that policy statements were not "enforceable documents."

Cohen also says that if the FCC enjoined Comcast, it would run afoul of its own 2002 Cable Modem Declaratory Ruling and Congress' 1946 Administrative Procedures Act. And he's adamant that an FCC fine is out of the question as well.

"For all these reasons, there is no basis upon which the Commission could lawfully adopt any sort of prospective injunction in the current setting. I might add that all of these reasons - plus others that we have previously detailed - would apply to any purported assessment of monetary forfeitures based on prior conduct."

But our favorite bit is where Cohen argues that Comcast is an open book. "We communicate appropriately with our customers," he insists.

We beg to differ. When tests from independent researcher Robb Topolski's first revealed that Comcast throttled BitTorrent traffic - many months ago - Comcast flatly denied the practice. And even in the face of an FCC probe, the ISP only half-admits what's happening.

What's more, when the FCC set up a hearing in Boston last month to determine what's going on, Comcast paid people to attend the meeting on its behalf.

If recent comments from Kevin Martin are any indication, he will crack down on Comcast - in large part because the company hasn't communicated appropriately with its customers. "A hallmark of what should be seen as a reasonable business practice is certainly whether or not the people engaging in that practice are willing to describe it publicly," he said.

Legal action here we come. ®

Intelligent flash storage arrays

More from The Register

next story
Crouching tiger, FAST ASLEEP dragon: Smugglers can't shift iPhone 6s
China's grey market reports 'sluggish' sales of Apple mobe
TEEN RAMPAGE: Kids in iPhone 6 'Will it bend' YouTube 'prank'
iPhones bent in Norwich? As if the place wasn't weird enough
Sea-Me-We 5 construction starts
New sub cable to go live 2016
EE coughs to BROKEN data usage metrics BLUNDER that short-changes customers
Carrier apologises for 'inflated' measurements cockup
Comcast: Help, help, FCC. Netflix and pals are EXTORTIONISTS
The others guys are being mean so therefore ... monopoly all good, yeah?
Surprise: if you work from home you need the Internet
Buffer-rage sends Aussies out to experience road rage
EE buys 58 Phones 4u stores for £2.5m after picking over carcass
Operator says it will safeguard 359 jobs, plans lick of paint
prev story

Whitepapers

A strategic approach to identity relationship management
ForgeRock commissioned Forrester to evaluate companies’ IAM practices and requirements when it comes to customer-facing scenarios versus employee-facing ones.
Storage capacity and performance optimization at Mizuno USA
Mizuno USA turn to Tegile storage technology to solve both their SAN and backup issues.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?
Beginner's guide to SSL certificates
De-mystify the technology involved and give you the information you need to make the best decision when considering your online security options.
Security for virtualized datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.