FCC opens the Comcast throttling debate to public comment

Demonstrating it's taking seriously charges that Comcast's "network management" practices for slowing down P2P traffic constitute discrimination, the government agency has asked the public to weigh in.

Comcast no longer denies that it implements certain network management techniques to help regulate its traffic, and it now clearly warns its customers -- albeit in a tucked-away location -- that it has the right to slow down certain classes of traffic. The company has argued that such management is not only within its rights, but that it works within the parameters for "reasonable network management" set forth in the Federal Communications' principles.

But last November's petition by P2P service provider Vuze has apparently succeeded in elevating the problem to the status of a formal public debate. Yesterday, the FCC called for public comments with regard to Vuze's petition, which the Commission now describes as having argued "that the practice by broadband service providers of degrading peer-to-peer traffic violates the FCC's Internet Policy Statement, and that such practices do not meet the Commission's exception for reasonable network management."

Without saying so directly, Comcast's statement to BetaNews and others last week implied that the network must implement some kind of bandwidth throttling in order to preserve a certain quality of service level for customers running other Internet applications, including simple Web browsing. Thus no discrimination is involved.

But the type of service that Vuze provides consists of entertainment programming on demand, some of it in high definition. That lends weight to Vuze's argument that any throttling of P2P traffic serves only to constrain others from competing in one aspect of the market against Comcast, whose CATV service -- offered alongside its broadband Internet service -- isn't subject to throttling.

"Comcast's actions starkly raise the issue of whether broadband network operators should be permitted the unfettered discretion to restrict or block traffic carried on their networks," reads Vuze's petition last November, "and to censor legal content or discriminate against applications and services that they may perceive as competing with their offerings. While Comcast has apparently justified its actions as legitimate 'network management' or mere traffic 'shaping,' Vuze believes that such overbroad and clandestine attempts to interfere with traffic - regardless of the legality of the content or the specific impact on the network - cannot amount to 'reasonable network management."'

Throttling not only harms users of P2P services, Vuze goes on to argue, but also content providers who may be using Vuze as a way to create a market for their own content -- a market that isn't open to them through Comcast's CATV channels.

But Cato Institute analyst David S. Isenberg believes it should perhaps not be up to the government to dictate the policies by which any broadband service provider regulates traffic on its own network.

"Like food providers, Internet access providers should tell us clearly what's in the can," Isenberg wrote in November just after Vuze filed its petition. "If they're traffic shaping, or throttling, or port blocking, or site blocking, or injecting reset packets, or app blocking, they should have a legal duty to say so...But asking the FCC to set out rules about which of those practices is reasonable is asking for trouble."

Meanwhile, Precursor Group analyst Scott Cleland believes it's well within Comcast's rights for it to design its traffic flow to bypass those whom the service provider has reason believe are disturbing the network.

"It is perfectly reasonable to manage communications network traffic in a similar way so that the counterproductive actions of the few at the wrong time do not make the network unworkable for the many," Cleland wrote in November. "The petitioners [Vuze] have taken the unreasonable and narrow position that any differential restriction of IP traffic or applications are per se discriminatory and bad and could not have a legitimate or beneficial impact. The petitioners' view is unreasonable because any network requires a modicum of management to make the network functional."

With the FCC's public review period now open between now and February 28, the matter of whose rights should prevail could very well be decided by a single persuasive argument one way or the other. Comments may be filed electronically with the FCC through this address.