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Comment Peer-to-peer file sharing just got a lot more expensive in the US. The FCC has ordered Comcast to refrain from capping P2P traffic, endorsing a volume-based pricing scheme that would “charge the most aggressive users overage fees” instead. BitTorrent, Inc. reacted to the ruling by laying-off 15 per cent of its workforce, while network neutrality buffs declared victory and phone companies quietly celebrated. Former FCC Chairman Bill Kennard says the legal basis of the order is “murky.”

Comcast will probably challenge on grounds that Congress never actually told the regulator to micro-manage the Internet. In the absence of authority to regulate Internet access, the Commission has never had a need to develop rules to distinguish sound from unsound management practice. The order twists itself into a pretzel in a Kafka-esque attempt to justify sanctions in the absence of such rules.

Technically speaking, they're very confused

The FCC's technical analysis is puzzling, to say the least.

The order describes an all-powerful IP envelope, seeking to evoke an emotional response to Deep Packet Inspection. The order claims the DPI bugaboo places ISPs on the same moral plane as authoritarian regimes that force under-aged athletes into involuntary servitude. But this is both uninformed and misleading. Network packets actually contain several "envelopes", one for each protocol layer, nested inside one another like Russian dolls. Network management systems examine all envelopes that are relevant, and always have, because there’s great utility in identifying protocols.

Internet routers, for example, implement congestion management by discarding packets whose loss will reduce congestion, but not those like TCP ACKs and UDP that won’t. These systems also try to randomize packet discard across TCP streams to prevent cycling and maximize effective throughput. These standard practices would be impossible if network management didn’t look inside the IP "envelope".

The order substantially errs in asserting that early-morning hours are periods of low utilization on ISP networks, when it’s well known they’re actually peak times for P2P seeding. Pure P2P seeding is an unattended activity that commences after downloading completes, and it serves a world-wide set of downloaders. When it’s 3:00 AM in Portland, it’s prime time on Beijing, so it’s perfectly understandable that a system that caps seeding bandwidth would trigger when most Americans are sleeping.

The FCC also makes wild mistakes in trying to confine congestion management to a reactive mode. Mildly pro-active systems such as Random Early Detection are standard and widely deployed. Strangely, the order also faults Comcast for "the flaw of being underinclusive" because it doesn’t clamp down on BitTorrent downloading. Clearly, there’s no way to make our regulators happy.

The Commission failed to conduct an independent examination of the Comcast network, relying instead on the testimony of partisans, and technically inaccurate media reports..

Wrong on the Law

The Commission argues that the Comcast system limits the amount of P2P upload traffic that each neighborhood node will pass at any given time, which has the effect of sending some P2P downloaders to other networks:

“When Comcast interferes with its users’ ability to upload content, the computer attempting to download that content will look for another source. In some cases, that other source will be a computer connected to a common carrier’s network, such as a computer of a DSL customer.”

Internet access isn’t a common carrier service, but the FCC claims it can be regulated if it impacts one.

This argument doesn't hold water because the FCC stripped DSL of common carrier status in 2002, reclassifying it an “Information Service” distinct from the wires that carry it. More importantly, this scenario actually negates the FCC’s most legitimate reason for taking an interest in the first place, the protection of the consumer’s right to access the content of his choice according to the previous "Four Freedoms" enumerated by former FCC chief Michael Powell. If consumers are able to access the content they want from DSL networks, Comcast hasn’t violated their rights, no matter how unfriendly they may be to the DSL providers. And it’s quite likely that Comcast serves more bytes of P2P than any other network provider for the simple reason that its upstream data rate is faster than DSL even after throttling.

Comcast's most vocal critics – including Larry Lessig, Susan Crawford (and until July 23, Robb Topolski) – remain Comcast customers for this very reason.

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