In what is being widely touted as an historic decision the FCC has issued a ruling that that Comcast’s did indeed illegally monitor customer connections and block specific protocols. They’ve been ordered to stop doing so, to submit details of what they have been doing, and to inform customers as to what it will do instead.
The small firestorm of comment on the web is a bit anticlimatic since FCC chair Martin made it clear more than a week prior to the ruling what the outcome would be but the ruling itself is bracing.
The most impressive thing about this event is the way the Commission talks; it says that Comcast was indeed blocking legal content, that the effect was anticompetitive and that Comcast had an economic motive to drive downloaded video off its network since it was in the business of selling video. Talking that way is the regulatory equivalent of dropping the bomb—a finding of motivated anticompetitive behavior triggers the possibility of truly draconian punishments.
Beyond letting Comcast know what it did wrong the Commission also acerbically dismissed Comcast’s ways of justifying its behavior; in ways that are worth qouting at length, even though the original press release is even more dramatic:
The Commission concluded that Comcast’s network management practices discriminate among applications rather than treating all equally and are inconsistent with the concept of an open and accessible Internet…
The Commission also concluded that Comcast’s practices are not minimally intrusive, as the company claims, but rather are invasive and have significant effects…In essence, Comcast opens its customers’ mail because it wants to deliver mail not based on the address on the envelope but on the type of letter contained therein…
The Commission concluded that the end result of Comcast’s conduct was the blocking of Internet traffic, which had the effectof substantially impeding consumers’ ability to access the content and to use the applications of their choice…
The Commission rejected Comcast’s defense that its practice constitutes reasonable
network management. While Comcast claimed that it was motivated by a desire to combat network congestion, the Commission concluded that the company’s practices are ill-tailored to serve that goal for many reasons: they affect customers who are using little bandwidth simply because they are using a disfavored application; they are not employed only during times of the daywhen congestion is prevalent; the company’s equipment does not target only those neighborhoods suffering from congestion; and a customer may use an extraordinary amount of bandwidth during periods of network congestion and will be totally unaffected so long as he does not utilize an application disfavored by Comcast.
The Commission’s determination that Comcast was not engaging in reasonable network management is supported bythe overwhelming weight of expert testimony in the record…The Commission also concluded that the anticompetitive harms caused by Comcast’s conduct have been compounded by the company’s unacceptable failure to disclose its practices to consumers. Because Comcast did not provide its customers with notice of the fact that it interfered with customers’ use of peer-to-peer applications, customers had no way of knowing when Comcast was interfering with their connections. As a result, the Commission found that
many consumers experiencing difficulty using onlycertain 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.
Bear in mind that this is the FCC saying this sort of stuff. The only place I’ve seen even similarly blunt langauge has been on the blogs of open network advocates who have bitterly complained of the mainstream media’s “fair and balanced” reporting which lent credeence to Comcast’s nonsensical claims that it wasn’t “blocking” traffic and that it was only “managing” its network for the good of the little guy. Those same news outlets religously avoided noticing that the P2P protocols that Comcast blocked were almost always used to download video that competed with Comcast’s cable and Pay Per View products. I hope that having the FCC, a body well know for sympathizing with the corporations it is supposed to regulate whenever possible, lash Comcast on all these points will result in better reporting—but I doubt it since the reporting on this ruling even now avoids repeating the most damning findings. It is really outrageous that the first most folks will hear this analysis is if they track it down themselves. Only the credulous report both sides of a story without noticing when one side is plainly flat-out lying. The FCC has reacted appropriately. Would that our media had half the common sense.
Here in Lafayette the question is whether Cox will take the hint and avoid the sort of public rebuke that Comcast has just experienced. As long-time readers will recall Lafayette Pro Fiber has long followed this story and noted that Comcast’s silent partner has been, since the first days of the story, Cox Communications. Cox has been engaging in exactly the same sort of blocking for which Comcast has been censured. —In fact a large-scale German study revealed that only three companies in the world were engaging in this behavior: Comcast, Starhub in Singapore, and Cox. Comcast had the bad fortune to get caught a few weeks before Cox and the bad judgment to engage in a historonic and clearly deceptive defense of its practices while Cox mummered confusing, uninteresting remarks that nobody found qoutable. If they are as smart as that reaction indicates they’ll wait a few weeks and issue a quiet press release saying that they don’t admit anything but are interested in finding some (confusing) new techniques to manage their service. And then cc the FCC.