FCC Issues its Comcast Order

The FCC issued its order prohibiting Comcast from interfering with specific network applications and requiring the company to disclose its network practices to its customers.  A good portion of the order (pages 6 through 23) defends the Commission's jurisdiction to proceed against Comcast.  Specifically, the Commission cites section 230(b) of the Communications Act of 1934 as amended, its Internet Policy Statement, and ancillary jurisdiction under six additional provisions of various telecommunications act.  The Commission also cites National Cable & Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) as authority that the Supreme Court recognizes its jurisdiction.  And if that isn't enough, the order cites Comcast statements to a federal district court asking that it hold a suit on the very same issue in abeyance because the Commission had jurisdiction over the issue.  The staff that drafted the order certainly must have had the D.C. Circuit Court of Appeals in mind when setting character to screen.

From The Commission's Order (footnote references omitted):

51. For all of the foregoing reasons, it is our expert judgment that Comcast’s practices do not constitute reasonable network management, a judgment that is generally confirmed by experts in the field. Comcast’s practices contravene industry standards and have significantly impeded Internet users’ ability to use applications and access content of their choice. Moreover, the practices employed by Comcast are ill-tailored to the company’s professed goal of combating network congestion. In sum, the record evidence overwhelmingly demonstrates that Comcast’s conduct poses a substantial threat to both the open character and efficient operation of the Internet, and is not reasonable.

52. There is still one more factor we have yet to address: Comcast’s failure to disclose its network management practices to its customers. Although we have not adopted (and we decline to adopt today) general disclosure requirements for the network management practices of providers of broadband Internet access services, the anticompetitive harm perpetuated by discriminatory network management practices is clearly compounded by failing to disclose such practices to consumers. Many consumers experiencing difficulty using only certain applications will not place blame on the broadband Internet access service provider, where it belongs, but rather on the applications themselves, thus further disadvantaging those applications in the marketplace.  On the other hand, disclosure of network management practices to consumers in a manner that customers of ordinary intelligence would reasonably understand would enhance the “vibrant and competitive free market . . . for the Internet and interactive computer services” by allowing consumers to compare and contrast competing providers’ practices.

53. Comcast’s claim that it has always disclosed its network management practices to its customers is simply untrue. Although Comcast’s Terms of Use statement may have specified that its broadband Internet access service was subject to “speed and upstream and downstream rate limitations,” such vague terms are of no practical utility to the average customer. Of course there are “limitations” on the speed and bitrate of a customer’s Internet connection, but even the best-informed customer would not have inferred from these or Comcast’s other terms of service that peer-to-peer protocols were disfavored on Comcast’s networks. And although Comcast eventually disclosed some elements of its network management practices to customers, Comcast’s first reaction to allegations of discriminatory treatment was not honesty, but at best misdirection and obfuscation.  If Comcast actually believed its practices were reasonable, it should not have behaved in this manner. A hallmark of whether something is reasonable is whether a provider is willing to disclose to its customers what it is doing. To the extent that Comcast wishes to employ capacity limits in the future, it should disclose those to customers in clear terms.

The remedy:

Specifically, in order to allow the Commission to monitor Comcast’s compliance with its pledge, the company must within 30 days of the release of this Order: (1) disclose to the Commission the precise contours of the network management practices at issue here, including what equipment has been utilized, when it began to be employed, when and under what circumstances it has been used, how it has been configured, what protocols have been affected, and where it has been deployed; (2) submit a compliance plan to the Commission with interim benchmarks that describes how it intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year; and (3) disclose to the Commission and the public the details of the network management practices that it intends to deploy following the termination of its current practices, including the thresholds that will trigger any limits on customers’ access to bandwidth.246 These disclosures will provide the Commission with the information necessary to ensure that Comcast lives up to the commitment it has made in this proceeding.

Comcast for its part still isn't sure how it's going to manage the network at this point.  Reports surfaced that it would slow down the heaviest users for up to 20 minutes during incidents of peak congestion.  That approach would not be aimed at specific applications or protocols.  What if that peak user was streaming a high definition video from a legal and commercial outlet?  That user experience would be, what's the word, degraded.  Between this and Congress getting angry over deep packet inspection for purposes of targeting advertising, how can the average ISP make any money?  Deep packet inspection is OK for rooting out terrorists and pirates, but apparently not OK to sell them products related to their web activities.  Another lost market opportunity  [MG]