Comcast v FCC, No 08-1291 (DC Cir. Apr. 6, 2010) (reversed)
"In this case we must decide
whether the Federal Communications Commission has
authority to regulate an Internet service provider's network
management practices. Acknowledging that it has no express
statutory authority over such practices, the Commission relies
on section 4(i) of the Communications Act of 1934, which
authorizes the Commission to "perform any and all acts, make
such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the
execution of its functions." 47 U.S.C. § 154(i). The
Commission may exercise this "ancillary" authority only if it
demonstrates that its action-here barring Comcast from
interfering with its customers' use of peer-to-peer networking
applications-is "reasonably ancillary to the . . . effective
performance of its statutorily mandated responsibilities." Am.
Library Ass'n v. FCC, 406 F.3d 689, 692 (D.C. Cir. 2005).
The Commission has failed to make that showing. It relies
principally on several Congressional statements of policy, but
under Supreme Court and D.C. Circuit case law statements of
policy, by themselves, do not create "statutorily mandated
responsibilities." The Commission also relies on various
provisions of the Communications Act that do create such
responsibilities, but for a variety of substantive and
procedural reasons those provisions cannot support its
exercise of ancillary authority over Comcast's network
management practices. We therefore grant Comcast's petition
for review and vacate the challenged order."
Statement Of Commissioner Michael J. Copps On Chairman Genachowski's
Announcement To Reclassify Broadband. STMT. News Media Contact: John
Giusti at (202) 418-2000, email: John.Giusti@fcc.gov CMMR TXT
LETTER TO VICE PRESIDENT REGULATORY AFFAIRS, COMCAST CORPORATION.
Response to letter detailing Comcast's broadband network management
practices, planned deployment of protocol-agnostic network management
practices, and other issues. Action by: Chief, Wireline Competition
Bureau and General Counsel by LETTER. OCH TXT
"We seek clarification with respect to an apparent discrepancy between Comcast's filing and its actual or advertised practices. Specifically, in Appendix B of your September 19 submission, Comcast notes that if a consumer uses 70% of his provisioned bandwidth for 15 min or more when his neighborhood Cable Modem Termination System (CMTS) node has been near capacity for a period of 15 minutes or more, that consumer loses priority when routing packets thru congested portions of the network. If such a consumer then places a VoIP call along a route experiencing actual congestion, Comcast states that consumer may find that his "VoIP call sounds choppy." Critically, the Appendix draws no distinction between Comcast's VoIP offerings and those offered by its competitors
"Comcast's website, however, suggests that such a distinction does in fact exist. The website claims that "Comcast Digital Voice is a separate facilities-based IP phone service that is not affected by this (new network management) technique." It goes on to state, by contrast, that customers of other "VoIP providers that rely on delivering calls over the public Internet may experience a degradation of their call quality at times of network congestion."
"We request that Comcast explain why it omitted from its filings with the Commission the distinct effects that Comcast's new network management technique has on Comcast's VoIP offering versus those of its competitors. We also ask that you provide a detailed justification for Comcast's disparate treatment of its own VoIP service as compared to that offered by other VoIP providers on its network. In particular, please explain how Comcast Digital Voice is facilities-based," how Comcast Digital Voice uses Comcast's broadband facilities, and, in particular, whether (and if so, how) Comcast Digital Voice affects network congestion in a different manner than other VoIP services.
"To the extent that Comcast maintains that its VoIP offering is a telephone service offering transmission facilities for VoIP calls distinct from Comcast's broadband offerings, then it would appear that the fee Comcast assesses its customers for VoIP services pays in part for the privileged transmission of information of the customer's choosing across Comcast's network. As we have stated before, the "heart of telecommunications [under the act] is transmission." And offering "telecommunications for a fee directly to the public" is the statutory definition of a telecom service. Given that Comcast apparently is maintaining that its VoIP service is a "separate facilities-based" telephone service that is distinct from its broadband service and differs from the service offered by "VoIP providers that rely on delivering calls over the public Internet, it would appear that Comcast's VoIP service is a telecom service subject to regulation under Title II of the Communications Act of 1934, as amended.
"We thus request that Comcast explain any reason the Commission should not treat Comcast's VoIP offering as a telecom service under Title II - a service subject, among other things, to the same intercarrier compensation obligations applicable to other facilities-based telecom carriers. We understand that Comcast's VoIP service is not yet complying with such intercarrier compensation obligations.
"Please submit your response by the close of business on Friday, January 30, 2009. "
(Citations omitted)
Comcast has appealed the FCC's decision. The appeal is in the DC. Cir.
Sidecut Reports ("The big question for many casual FCC observers is why would Martin, a Republic who is no historical friend of net neutrality rules, suddenly embrace the 2005 principles? The answer is, it may be the lesser-of-two evils choice that his telco friends would wholeheartedly support, because it gives them a pain free way to say that new net neutrality laws aren't needed. Indeed, just moments after the FCC's vote was made public, both Verizon and AT&T issued statements supporting Martin's actions.")
Verizon Statement on FCC Comcast Decision, August 1, 2008 ("Without making a judgment on the substance of today's ruling, it is clear that the Federal Communication Commission is prepared to uphold its broadband principles. Now the entire industry should redouble its efforts to set standards for transparency and ensure that consumers know what they are getting when purchasing access or using applications. And we should get ahead of the curve in developing and adopting sound network-management practices as new services emerge. "With both the FCC and the Federal Trade Commission (FTC) engaged in oversight of Internet usage and practices, new legislation and more regulation, with all their unintended consequences, are not needed.")
Free Press, Public Knowledge, Media Access Project, Consumer Federation of America, Consumers Union, Information Society Project at Yale Law School, Professor Charles Nesson, Co-Director of the Berkman Center for Internet & Society, Harvard Law School, Professor Barbara van Schewick, Center for Internet & Society, Stanford Law School, Petition for Declaratory Ruling, CC Docket Nos. 02-33, 01-337, 95-20, 98-10, GN Docket No. 00-185, CS Docket No. 02-52, WC Docket No. 07-52 (filed Nov. 1, 2007).
Vuze Petition (filed Nov. 14, 2007) (" asking for rules to prevent telephone and cable companies from blocking, degrading or unreasonably discriminating against legal Internet applications. ") PK Press Release " Vuze is a startup that provides high-quality video content using peer-to-peer technology that is working hard to attract licensed content partners for viewing while providing an innovative experience for its customers who want to upload their own video. "
Litigation
Comcast v FCC, No 08-1291 (DC Cir. Apr. 6, 2010) (reversed)
Comcast has reportedly appealed the order of the FCC and this appeal is before the DC Circuit
Papers
Kevin Bauer, Dirk Grunwald, and Douglas Sicker, The Arms Race in P2P, Presented at TPRC 2009
Dischinger, M., Mislove, A., Haeberlen, A., and Gummadi, K. P. Detecting BitTorrent
blocking. In IMC '08: Proceedings of the 8th ACM SIGCOMM conference on Internet measurement
(October 2008), ACM.
Weaver, N., Sommer, R., and Paxson, V. Detecting forged TCP reset packets. In Proceed-
ings of NDSS (February 2009).
One cable company to rule them all Salon 2004 (Comcast ... The company's terms of service also prohibit users from running file-sharing applications (among other things))
University Gets Tough On P2P InternetWeek Feb 2004 ("Campus residents can no longer use Kazaa, Morpheus or any other P2P (peer-to-peer) file-sharing software to download music, movies or software applications. The free lunch ended abruptly at the beginning of the 2003-04 school year, when network administrators working in the campus housing unit turned on software they developed that not only detects illicit network activity but also dynamically enforces acceptable-use policies without IT intervention.")
"This document is being written because there are a number of
firewalls in the Internet that inappropriately reset a TCP connection
upon receiving certain TCP SYN packets, in particular, packets with
flags set in the Reserved field of the TCP header. In this document
we argue that this practice is not conformant with TCP standards, and
is an inappropriate overloading of the semantics of the TCP reset.
We also consider the longer-term consequences of this and similar
actions as obstacles to the evolution of the Internet infrastructure."
Policy Traffic Switch: "helps service providers to better profit from application traffic. Our Deep Packet Inspection-Based Policy Solutions address key challenges such as managing bandwidth-intensive traffic, controlling malicious threats, enabling new services and identifying application quality trends. These subscriber-friendly solutions are deployed on a single intelligent platform to simplify the network architecture and ensure a fast return on investment.
"
Wikipedia: "a networking equipment company based in Waterloo, Ontario, Canada. Sandvine products implement network traffic shaping and policing, and include support for both blocking new and forcefully terminating established network connections. The company targets its product line at Internet Service Providers and states that it helps ISPs save on bandwidth costs by controlling connection quality of high-bandwidth users, e.g. the users of P2P file-sharing applications. Comcast is a high-profile customer of Sandvine who has come under fire from many subscribers experiencing degraded connection performance."
Anne Broache, FCC: We'll investigate Comcast-BitTorrent flap, CNET (Jan 8, 2008) (Kevin Martin at CES announcing that FCC will investigate, " "The question is going to arise: Are they reasonable network practices?" AP quoted Martin, a Republican, as saying. "When they have reasonable network practices, they should disclose those and make those public." " )
Marguerite Reardon, Comcast denies monkeying with BitTorrent traffic, CNET (Aug 21, 2007) ("when I spoke to Comcast spokesman Charlie Douglas earlier today, he flat-out denied that the company was filtering or "shaping" any traffic on its network.")
An AP reporter attempted to download, using file-sharing program BitTorrent, a copy of the King James Bible from two computers in the Philadelphia and San Francisco areas, both of which were connected to the Internet through Comcast cable modems. We picked the Bible for the test because it's not protected by copyright and the file is a convenient size. In two out of three tries, the transfer was blocked. In the third, the transfer started only after a 10-minute delay. When we tried to upload files that were in demand by a wider number of BitTorrent users, those connections were also blocked. Not all Comcast-connected computers appear to be affected, however. In a test with a third Comcast-connected computer in the Boston area, we were unable to test with the Bible, apparently due to an unrelated error. When we attempted to upload a more widely disseminated file, there was no evidence of blocking. The Bible test was conducted with three other Internet connections. One was provided by Time Warner Inc.'s Time Warner Cable, and the other came from Cablevision Systems Corp. The third was the business-class connection to the AP's headquarters, provided by AT&T Inc. and Cogent Communications Group Inc. No signs of interference with file-sharing were detected in those tests. Further analysis of the transfer attempt from the Comcast-connected computer in the San Francisco area revealed that the failure was due to ''reset'' packets that the two computers received, carrying the return address of the other computer. Those packets tell the receiving computer to stop communicating with the sender. However, the traffic analyzer software running on each computer showed that neither computer actually sent the packets. That means they originated somewhere in between, with faked return addresses.
Peter Svensson (AP), Comcast Blocks Some Internet Traffic, SFGATE (Oct. 19, 2007) ("Comcast Corp. actively interferes with attempts by some of its high-speed Internet subscribers to share files online, a move that runs counter to the tradition of treating all types of Net traffic equally. The interference, which The Associated Press confirmed through nationwide tests, is the most drastic example yet of data discrimination by a U.S. Internet service provider. It involves company computers masquerading as those of its users. If widely applied by other ISPs, the technology Comcast is using would be a crippling blow to the BitTorrent, eDonkey and Gnutella file-sharing networks. While these are mainly known as sources of copyright music, software and movies, BitTorrent in particular is emerging as a legitimate tool for quickly disseminating legal content.")
Seth Schoen, Comcast and BitTorrent, Electronic Frontier Foundation Blog, September 13, 2007,
, No 08-1291 (DC Cir. Apr. 6, 2010) (reversed)