New legislation could lead to ISP throttling ban

Comcast's response yesterday to its public thrashing by the FCC may have had a second, more important, purpose: A prominent Congressman has introduced legislation paving the way for a ban on Internet throttling.

In the midst of an already overflowing legislative calendar, Rep. Ed Markey (D - Mass.), who chairs the House Subcommittee on Telecommunications and the Internet, introduced a bill yesterday whose end result could be the illegalization of throttling of bandwidth to certain customers by Internet service providers.

But the bill, tentatively entitled the Internet Freedom Preservation Act of 2008, would not actually declare throttling illegal specifically. Instead, it would call upon the Federal Communications Commission to hold a hearing to determine whether or not throttling is a bad thing, and whether it has the right to take action to stop it.

"Within 90 days after the date of the enactment of this Act, the Federal Communications Commission...shall commence a proceeding on broadband services and consumer rights," reads the text of the first draft of H. R. 5353. "As part of the proceeding...the Commission shall assess whether broadband network providers adhere to the Commission's Broadband Policy Statement of August, 2005 including whether, consistent with the needs of law enforcement, such providers refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to -- access, use, send, receive, or offer lawful content, applications, or services over broadband networks, including the Internet."

The FCC's opinion of throttling as a business practice would seem to be wholly negative, if it weren't simultaneously so tentative. Last month, the Commission tasked its Wireline Competition Bureau to seek comments on allegations by P2P provider Vuze that Comcast's throttling practice -- intended to curb high-bandwidth file sharing that Comcast believes to typically be unlicensed -- is actually cutting into its legitimate business.

The Bureau's call for comments was anything but neutral, declaring outright "that the practice of 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."

Yesterday, Comcast filed a formal response to the Bureau which dared to invoke a political hot potato usually reserved for attacking Comcast, in its own defense.

"The [Bureau's] Petitions assert that it is per se unreasonable for Comcast to manage certain P2P protocols, even ones that have been proven to degrade customers' abilities to surf the web, watch video streaming, make voice-over-Internet Protocol calls, or access other Internet content, applications, and services, particularly during periods of peak network congestion," reads Comcast's public comment. "The Petitions base their claims primarily on a 'test' of Comcast's network management practices using P2P protocol services. As demonstrated [later in this document], no valid conclusions about the effects of Comcast's network management practices could be drawn from that test because the test did not replicate how P2P protocols operate in the real world.

"The carefully limited measures that Comcast takes to manage traffic on its broadband network -- including its very limited management of certain P2P protocols -- are a reasonable part of Comcast's strategy to ensure a high-quality, reliable Internet experience for all Comcast High-Speed Internet customers," the company continued. "Importantly, in managing its network, Comcast does not block any content, application, or service; discriminate among providers; or otherwise violate any aspect of the principles set forth in the [FCC's] Internet Policy Statement."

How the FCC chooses to address Comcast's assertions may have a direct impact on whether the Markey bill, also introduced yesterday, will have any teeth whatsoever, or whether it would instead serve merely to place Rep. Markey on the populist side of a prominent argument.

As Rep. Markey stated on the House floor yesterday, "There are some who may wish to assert that this bill regulates the Internet. It does no such thing. The bill contains no requirements for regulations on the Internet whatsoever. It does, however, suggest that the principles which have guided the Internet's development and expansion are highly worthy of retention, and it seeks to enshrine such principles in the law as guide stars for US broadband policy. The bill tasks the FCC with the job of conducting an assessment of broadband practices and consumer rights. Finally, it requires the FCC to hold eight broadband summits around the nation and to report back to Congress on its findings and any recommendations for further action."

But the bill has already garnered prominent opposition on the part of the wireless industry association CTIA. This afternoon, its president and CEO, former Oklahoma Republican representative (and former Tulsa Hurricane football great) Steve Largent issued this response: "This bill is an attempt to cure a problem that simply does not exist. Overwhelming evidence collected by the [FCC], the Federal Trade Commission, and independent research analysts proves that wireless broadband adoption is spreading like wildfire across this country. This wouldn't be happening if consumers weren't getting the service, value, and access to content they desire...These are serious issues for carriers and consumers alike, and we believe a thoughtful and balanced examination will lead to what we already know: Government intervention is not necessary."

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