In a victory for advocates of "net neutrality," a divided Federal Communications Commission (FCC) has ruled that Comcast Corp. violated federal policy when it blocked internet traffic for some subscribers and has ordered the cable giant to change the way it manages its network.
In a precedent-setting move on Aug. 1, the FCC by a 3-2 vote enforced a policy that guarantees customers open access to the internet.
The commission did not assess a fine, but it ordered Comcast to stop cutting off transfers of large data files among customers who use a special type of file-sharing software.
Comcast says its practices are reasonable–that it has delayed traffic, not blocked it–and that the FCC’s so-called net neutrality "principles" are part of a policy statement and are not enforceable rules.
Republican FCC Chairman Kevin Martin proposed the enforcement action and was joined by Democratic commissioners Jonathan Adelstein and Michael Copps in voting for approval. He was opposed by members of his own party, commissioners Robert McDowell and Deborah Taylor Tate, who both issued lengthy dissents.
The commission’s authority to act stems from a policy statement adopted in September 2005 that outlined a set of principles meant to ensure that broadband networks are "widely deployed, open, affordable, and accessible to all consumers."
The principles are "subject to reasonable network management," a concept the agency has not explicitly defined.
While the FCC action did not include a fine, it does require Comcast to stop its blocking practice by the end of the year. The company also must provide details to the commission on the management techniques it has used and let consumers know details of its future plans.
Martin was particularly critical of the company’s failure to disclose to customers exactly how it was managing its traffic, saying this action "compounded the harm."
Martin said Comcast managers were not "simply managing their network, they had arbitrarily picked an application and blocked their subscribers’ access to it."
Comcast spokeswoman Sena Fitzmaurice said in a prepared statement that the company was "disappointed in the commission’s divided conclusion, because we believe that our network management choices were reasonable."
She said the company believes the order "raises significant due-process concerns and a variety of substantive legal questions."
The FCC’s action means network operators are subject to the FCC’s enforcement process, and it shows the agency will act on consumer complaints.
Martin told the Associated Press (AP) in an interview before the meeting that the agency will consider fines for future violations, but he declined to speculate on how large they might be.
The FCC action arose when bloggers reported that Comcast customers who used peer-to-peer (P2P) file-sharing software such as BitTorrent were noticing their transmissions were aborting prematurely.
The AP ran tests and reported Comcast was indeed cutting off transfers by masquerading as its one of its customers.
The report led to a complaint by public-interest group Free Press and others that the company was violating the FCC’s net neutrality principles.
"Net neutrality" is the idea that all internet traffic should be treated equally. Many schools and universities have come out publicly in support of measures to ensure that internet service providers cannot serve as arbitrary gatekeepers to online content or create a two-tiered delivery system: One for users who can pay extra for preferred status, and a slower one for those who can’t. (See "Why schools need net neutrality.")
P2P file sharing is a common way to illegally exchange copyright-protected files, such as movies and music–but schools, colleges, companies, and other organizations also use P2P file-sharing services for legal distribution of videos and other large files. For instance, educators, students, and researchers often use BitTorrent and other P2P services to share large data sets compiled during their research.
If internet service providers hinder or control that traffic, it makes them important gatekeepers of internet content. And such control could have dangerous implications for schools and others, advocates of net neutrality say.
Comcast has said it did not block traffic, but delayed it, and only among users of the P2P file-sharing programs that were responsible for taking up a disproportionate share of bandwidth and endangering service for other customers.
The company has pledged to stop using its network management practice by the end of the year and switch to a "protocol agnostic" technique that will not single out any particular type of user.
The action is the first test of the FCC’s net neutrality principles.
Many have questioned the enforceability of these principles, including Martin, who said when the policy statement was adopted in 2005 that they "do not establish rules, nor are they enforceable documents."
Some members of Congress, including presumed Democratic presidential nominee Sen. Barack Obama of Illinois, have pushed for net neutrality legislation without success.
Large internet service providers have fought such regulation, arguing that companies that spend billions on their networks must be free to manage traffic.
Verizon Communications Inc., AT&T Inc., and the U.S. Telecom Association all released statements saying the FCC action proved there was no need for federal net neutrality legislation.