Neutrality P2P Comcast Bittorrent
|FCC found that Comcast had violated the FCC's Broadband Principles|
|FCC concluded that it had regulatory authority to act, in part, based on Sec. 706. However, the FCC had previously concluded that Sec. 706 provided no such authority.|
|Reversed by D.C. Circuit Court|
In re Formal Complaint of Free Press and Public Knowledge Against Comcast Corp. for Secretly Degrading Peer-to-Peer Applications, 23 F.C.C.R. 13028 (2008)
Derived From: Verizon v. FCC, No. 11-1355 (D.C. Cir. Jan. 14, 2014). See also USTA v. FCC Slip 16 DC Cir. 2015 ("In Comcast, we vacated that order because the Commission had failed to identify any grant of statutory authority to which the order was reasonably ancillary")
"Finding that Comcast’s impairment of these applications had “contravene[d] . . . federal policy,” id. at 13052 ¶ 43, the Commission ordered the company to adhere to a new approach for managing bandwidth demand and to disclose the details of that approach, id. at 13059–60 ¶ 54. The Commission justified its order as an exercise of what courts term its “ancillary jurisdiction,” see id. at 13034–41 ¶¶ 14–22, a power that flows from the broad language of Communications Act section 4(i). See 47 U.S.C. § 154(i) (“The Commission may 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.”); see generally American Library Ass’n v. FCC, 406 F.3d 689, 700–03 (D.C. Cir. 2005). We have held that the Commission may exercise such ancillary jurisdiction where two conditions are met: “(1) the Commission’s general jurisdictional grant under Title I covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.” American Library Ass’n, 406 F.3d at 691–92.
"In Comcast, we vacated the Commission’s order, holding that the agency failed to demonstrate that it possessed authority to regulate broadband providers’ network management practices. 600 F.3d at 644. Specifically, we held that the Commission had identified no grant of statutory authority to which the Comcast Order was reasonably ancillary. Id. at 661. The Commission had principally invoked statutory provisions that, though setting forth congressional policy, delegated no actual regulatory authority. Id. at 651–58. These provisions, we concluded, were insufficient because permitting the agency to ground its exercise of ancillary jurisdiction in policy statements alone would contravene the “‘axiomatic’ principle that ‘administrative agencies may [act] only pursuant to authority delegated to them by Congress.’” Id. at 654 (alteration in original) (quoting American Library Ass’n, 406 F.3d at 691). We went on to reject the Commission’s invocation of a handful of other statutory provisions that, although they could “arguably be read to delegate regulatory authority,” id. at 658, provided no support for the precise order at issue, id. at 658–61."
"While the Comcast matter was pending, the Commission sought comment on a set of proposed rules that, with some modifications, eventually became the rules at issue here. See In re Preserving the Open Internet, 24 F.C.C.R. 13064 (2009). In support, it relied on the same theory of ancillary jurisdiction it had asserted in the Comcast Order. See id. at 13099 ¶¶ 83–85. But after our decision in Comcast undermined that theory, the Commission sought comment on whether and to what extent it should reclassify broadband Internet services as telecommunications services. See In re Framework for Broadband Internet Service, 25 F.C.C.R. 7866, 7867 ¶ 2 (2010). Ultimately, however, rather than reclassifying broadband, the Commission adopted the Open Internet Order... See 25 F.C.C.R. 17905.
- 8/20/08 Commission Orders Comcast to End Discriminatory Network Management Practices.
MO&O: Word | Acrobat
News Release (8/1/08): Word | Acrobat
Martin Statement: Word | Acrobat
Copps Statement: Word | Acrobat
Adelstein Statement: Word | Acrobat
Tate Statement: Word | Acrobat
McDowell Statement: Word | Acrobat
- 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.")
COMMISSION ORDERS COMCAST TO END DISCRIMINATORY NETWORK MANAGEMENT PRACTICES. The Federal Communications Commission found that Comcast Corp.'s management of its broadband Internet networks contravenes federal policies that protect the vibrant and open nature of the Internet. News Release. Adopted: 08/01/2008.
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Formal Complaint Of Free Press And Public Knowledge; Broadband Industry Practices. FCC orders Comcast to end discriminatory network management practices. Affirms its authority to protect vibrant and open internet. (Dkt No. 07-52). Action by: the Commission. Adopted: 08/01/2008 by MO&O. (FCC No. 08-183). WCB
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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. "
"The Wireline Competition Bureau seeks comment on a petition filed by Free Press et al . (Petitioners), seeking a declaratory ruling "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. "
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).
Letter from Professor Jack Balkin, Yale Law School and Professor Barbara van Schewick, Stanford Law School, to Marlene H. Dortch, Secretary of the Federal Communications Commission, Comment on Commission Order Requiring Comcast to End Discriminatory Network Management Practices (August 20, 2008).
Released: 01/14/2008. COMMENT SOUGHT ON PETITION FOR DECLARATORY RULING REGARDING INTERNET MANAGEMENT POLICIES. (DA No. 08-91). (Dkt No 07-52). Comments Due: 02/13/2008. Reply Comments Due: 02/28/2008. WCB. Contact: Jon Reel at 1580
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On November 14, 2007, Vuze, Inc. filed a Petition for Rulemaking requesting that the Commission initiate a rulemaking proceeding to clarify what constitutes "'reasonable network management,' by broadband network operators and to establish that such network management does not permit network operators to block, degrade or unreasonably discriminate against lawful Internet applications, content or technologies" as used in the Commission's Internet Policy Statement .
Vuze, Inc. Petition for Rulemaking to Establish Rules Governing Network Management Practices By Broadband Network Operators, WC Docket No. 07-52 (filed Nov. 14, 2007) (Petition).
Released: 01/14/2008. COMMENT SOUGHT ON PETITION FOR RULEMAKING TO ESTABLISH RULES GOVERNING NETWORK MANAGEMENT PRACTICES BY BROADBAND NETWORK OPERATORS. (DA No. 08-92). (Dkt No 07-52). Comments Due: 02/13/2008. Reply Comments Due: 02/28/2008. WCB.< http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-92A1.doc >< http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-92A1.pdf >< http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-92A1.txt >
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. "
- 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 CMMR TXT
- 4/6/10 FCC Statements on Comcast v. FCC Decision.
Commission Statement: Word | Acrobat
Copps Statement: Word | Acrobat
McDowell Statement: Word | Acrobat
Clyburn Statement: Word | Acrobat
Baker Statement: Word | Acrobat
- IETF RFC 6057, Comcast's Protocol-Agnostic Congestion Management System (Dec. 2010) ("This document describes the congestion management system of Comcast Cable, a large cable broadband Internet Service Provider (ISP) in the U.S. Comcast completed deployment of this congestion management system on December 31, 2008.")
- 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
- S Floyd, RFC 3360, Inappropriate TCP Resets Considered Harmful (August 2002) "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."
- Glasnost: Results from tests for BitTorrent traffic blocking.
- Shane Greenstein, Martin Peitz, and Tommaso Valletti, Net Neutrality: A Fast Lane to Understanding the Trade-offs, 30 J. of Econ. Perspectives, no. 2, Spring 2016, at 127,131 (discussing the case of Bit-Torrent and Comcast).
- 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.")
- BitTorrent Partners
- Comcast Press Release, Comcast and Bittorrent Form Collaboration to Address Network Management, Network Architecture and Content Distribution, (March 27, 2008)
- Comcast High Speed Internet
- VUZE uses BitTorrent to distribute video content.
- G4 TV, owned by Comcast, is a VUZE partner
- SandvineIntelligent Broadband Network Management
- 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."
- Sandvine Inc., Meeting the Challenge of Today’s Evasive P2P Traffic, Industry White Paper, September 2004, p. 14 (“subscribers have no indication of what is happening.”)
- Pcapdiff is a tool developed by the EFF to compare two packet captures and identify potentially forged, dropped, or mangled packets.
- John Hart v Comcast, (Superior Court Alemeda County Filed Nov. 2007) (requesting class action status)
- Complaint alleges that Comcast's traffic management is also interfering with Lotus Notes