Federal Internet Law & Policy
An Educational Project

Net Neutrality P2P Comcast Bittorrent

Dont be a FOOL; The Law is Not DIY

In one of the initial Network Neutrality skirmishes before the FCC, the FCC found that Comcast had violated the FCC's Broadband Principles by blocking BitTorrent, a P2P application which could deliver video in competition with Comcast's video. The FCC ordered Comcast to cease its discriminatory behavior.

The FCC's jurisdiction over network neutrality was unclear. The FCC had declared that Internet over Broadband was an information service, not a telecommunications service. Yet it believed it had authority to prevent discriminatory behavior over the Internet.

The decision of the FCC was reversed by D.C. Circuit Court.

Table of Contents

Robb Topolski on Comcast TCP Resets


The allegation was that Comcast was interferring with BitTorrent and P2P traffic, specifically that Comcast injected TCP Reset commands in order to disrupt P2P traffic.

The belief was that Comcast had an incentive to do this in order to protect its revenue from its MVPD Cable Video service.

The allegations came to light as a result of Associated Press and EFF reports. Peter Svensson, Comcast Activity Hinders Subscribers’ File-Sharing Traffic, AP Testing Shows, Associated Press, Oct. 19, 2007 


On November 1, 2007, Free Press and Public Knowledge filed a formal complaint before the FCC, arguing that Comcast's actions violated the FCC Broadband Policy Statement. Free Press also petitioned for a Declaratory Ruling. This would be followed by a petition filed by Vuze for a rulemaking.


Requests for Comments

The FCC released multiple requests for comment and held hearings.

  • 1/14/08 Comment Sought on Petition for Declaratory Ruling Regarding Internet Management Policies. Public Notice: Word | Acrobat (DA No. 08-91). (Dkt No 07-52).
  • 1/14/08 Comment Sought on Petition for Rulemaking to Establish Rules Governing Network Management Practices by Broadband Network Operators. Public Notice: Word | Acrobat (DA No. 08-92). (Dkt No 07-52).
  • Network Management Practices Inquiry
The Free Press, Public Knowledge Formal Complaint, as an item before the Enforcement Bureau, would not be a proceeding itself that would be put out for public comment.


Comcast (eventually) conceded that it was involved in the action but argued that the action was necessary in order to conduct congestion management. [McCullagh]



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).

Broadband Internet is information service.

Source: Martin 10/02/08


The FCC concluded that Comcast violated FCC rules by

  • Impairment of the P2P applications; and
  • Failing to disclose to end users its network management practices.
    • "As a result, the Commission found that many consumers experiencing difficulty using only certain applications would not place blame on Comcast, where it belonged, but rather on the applications themselves, thus further disadvantaging those applications in the competitive marketplace." Press Release 2008 at 2.

The FCC found that Comcast was using deep packet inspection in order to detect P2P traffic; Comcast would then inject a TCP RST command to the end users, causing the TCP session to terminate and reset. This disrupted the performance of the P2P application.

The FCC concluded that Comcast had an incentive to protect its MVPD cable video service against OTT video competition. [MOO para. 5 ("Such video distribution poses a particular competitive threat to Comcast’s video-on-demand (“VOD”) service. “VOD . . . operates much like online video, where Internet users can select and download or stream any available program without a schedule and watch it any time, generally with the ability to fast-forward, rewind, or pause the programming.”11 Comcast has recently placed a significant emphasis on expanding its VOD business, and its VOD revenues have experienced robust growth.12 Moreover, Comcast has “begun incorporating its VOD content online through sites competing directly with BitTorrent protocol sites.")]

The FCC rejected Comcast's argument that this was reasonable network management designed to address congestion.

  • Comcast selectively targeted some applications; it did not treat all applications equally
  • Comcast engaged in its behavior regardless of
    • whether there was congestion or not,
    • time of day (peak traffic hours versus off-peak hours),
    • geographic location (one point in a network may be congestion but another may not be)
    • Amount of bandwidth consumed by application (alot of bandwidth or a smal amount)


The FCC ordered Comcast to

CITATION: 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)

8/20/08 Commission Orders Comcast to End Discriminatory Network Management Practices.
MO&O: Word | Acrobat
News Release (8/1/08): Word | Acrobat ("Comcast has unduly interfered with Internet users’ right to access the lawful Internet content and to use the applications of their choice." " The Commission announced its intention to exercise its authority to oversee federal Internet policy in adjudicating this and other disputes regarding discriminatory network management practices with dispatch, and its commitment in retaining jurisdiction over this matter to ensure compliance with a proscribed plan to bring Comcast’s discriminatory conduct to an end")
Martin Statement: Word | Acrobat
Copps Statement: Word | Acrobat
Adelstein Statement: Word | Acrobat
Tate Statement: Word | Acrobat
McDowell Statement: Word | Acrobat

Reaction to Decision

Disclose Network Management Plan

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.")


  • 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 PDF 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)


Litigation: Comcast v FCC

Derived from Verizon v. FCC, No. 11-1355 (D.C. Cir. Jan. 14, 2014).

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."

Comcast v FCCPDF, No 08-1291, 600 F.3d 642 (D.C. Cir. Apr. 6, 2010)


Chairman Martin Praised FCC Jurisdiction and protection of the Open Internet

Keynote Remarks of Chairman Martin at the "Network Neutrality Conference-Implications For Innovation And Business Online", Copenhagen, Denmark. 10/2/08 Word | Acrobat | Archive Presentation: Powerpoint ("At the FCC, we have been focusing on creating a regulatory environment that promotes investment and competition, setting the rules of the road so that players can complete on a level playing field and removing regulatory obstacles that discouraged infrastructure investment and slowed deployment….. The Commission will remain vigilant in protecting consumers’ access to content, applications and services on the Internet. Subscribers should be able to go where they want, when they want, and generally use the Internet in any legal manner")

Open Internet 2010

"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.