Original URL: http://www.theregister.co.uk/2008/07/28/fcc_comcast_landmark/

FCC censures Comcast for doing its job

Hangs the monkey

By Andrew Orlowski

Posted in Broadband, 28th July 2008 12:41 GMT

In a landmark decision, the FCC is set to censure Comcast for engaging in traffic management, the Wall Street Journal reported on Friday. While largely symbolic - Comcast will not be fined, the Journal reports - it marks an important victory for campaigners seeking greater regulation of the internet. The case was brought by P2P video network Vuze and activist group Free Press.

The ruling faces an immediate challenge, since the FCC's decision retrospectively turns a "non-binding" aspiration into a rule. A 2005 policy statement, passed under the previous FCC chairman, made broad aspirational statements about what the net should look like. These were so vague however, that Powell's successor Kevin Martin recently admitted that it wasn't clear what the rule meant. And because this rule bypassed the mandatory public consultation process, will most likely be struck down.

Nevertheless, it's a symbolic victory for the well-funded "Net Neutrality" campaign - and a remarkable comeback for an issue that was all but dead a year ago.

Citizen and non-profit networks - who don't have the deep pockets necessary to lobby in DC - are likely to be disproportionately hurt. For example Brett Glass, who runs a small community wireless ISP in Laramie, Wyoming, wrote this weekend that tying the hands of the operator would make operating a wireless ISP impossible, and would harm long-term investment in US broadband. Business models which depend on an "ultra-fast lane", for example for delivering real-time video monitoring or movies, are now vulnerable to activists' challenge, as they clearly "violate neutrality rules".

"A ruling against Comcast would harm every broadband provider, but especially the smaller ones and the ones that are breaking new ground by covering previously unserved areas," wrote Glass.

At stake is the ability of an ISP to manage traffic on its network. Neutrality advocates want to regulate the ability of ISPs to prioritize traffic by application type because it violates "Free Speech" - even if the application in question is a worm, or (more commonly) network performance for all users is hampered by a few bandwidth hogs.

(Vuze, the FCC's petitioner, operates no network of its own.)

"Such traffic-specific profiling and flow throttling set[s] the stage for ISPs to pick winners and losers on the 'Net, to do more than determine how wide someone's pipe would be - to control what they could do, and when," wrote Ars Technica's Net Neutrality activist Nate Anderson in a sentence that does much to encapsulate the paranoia of the campaign.

But now armchair ideologues can control who does what (and how) on a private network between consenting adults - a very strange sort of "free speech" victory.

How did it happen?

The resurrection of Neutrality

The ruling is borne out of political pressure from a campaign funded by George Soros' Free Press, amongst others who cried foul at the actions of the US' biggest cable operator.

Last autumn, Comcast found itself in an invidious position, one very few Reg readers would want to be in. Due to a bug in the cable modem protocol (DOCSIS), Comcast found that heavy BitTorrent users were crippling its network. BitTorrent doesn't respect the "honor box" of the internet, and it's not alone in not doing so. But the cable operator realised that BitTorrent users were all requesting bandwidth allocation on a per-packet basis at the same time. Because with the version of DOCSIS deployed by Comcast, all applications use the same slot for requesting bandwidth, and because BitTorrent requests bandwidth so aggressively (hundreds of times in a minute, compared to a few times an hour for an email application), the P2P app was effectively starving other applications of oxygen.

(DSL modems don't have this particular technical gotcha - and next-generation cable modems based on DOCSIS 3.0 work around it.)

So, for the most aggressive P2P users Comcast resorted to a crude workaround - but one much less crude than banning BitTorrent, or making downloads slower. At times of peak load, Comcast looked for BitTorrent seeders and threw away a few upload requests, for short periods of a few seconds. This let other network applications breath again, and BitTorrent performance increased overall.

But campaigners, despairing of seeing their hobby horse die (Neutrality activism had peaked in 2006 with the tabling of two bills in Congress), saw their chance.

Ignoring the fact that the P2P experience for humans at the end of the pipe (remember them?) was enhanced by the action, campaigners argued that Comcast was "busting" Torrents. It made for great headlines. Comcast's clunky technical fix was matched by even clunkier PR, with the cable company's flaks foolishly denying the network was engaged in traffic management. Given half a clue, Comcast last year should have argued that it's traffic management that "saves the internet" from collapsing in a heap. But Comcast has underestimated the ideological determination of its opponents, and campaigners' success in turning metaphors into engineering practices. Once unleashed, the mob began to imagine neutrality violations everywhere.

Comcast has since renounced the practice and engaged in an effort to create a better P2P experience for the future. It debunked the "busting" arguments in this FCC filing (pdf).

The landmark decision draws together two strands of policy - one old and specific to the US, and one new and widespread.

I've noted before how American politics are largely fought through symbolic gestures. Think of the bitter fights over the wording on the US currency, or inscriptions on public statues. The Neutrality campaign was similarly engaged in a symbolic battle.

But the other aspect is more disturbing. Britain's equivalent of the FCC, Ofcom, prides itself on what it calls "evidence-based policy making". It may not always succeed, but it's a tradition based on empiricism. With "Net Neutrality", what we're seeing is the opposite, where the direction is set on a hunch or intuition, or the angst of a mob, and the facts cherry-picked to support the conclusion. The definition of harm and "busting" are great illustrations. Call it "policy-based evidence-making", if you like.

The ruling is expected shortly. ®