FCC finalizes Comcast's filtering penalties

The Federal Communications Commission on Wednesday finally released the text of its 3-2 ruling saying Comcast violated the law when throttling BitTorrent transfers, marking the first time any broadband provider has been found to violate Net neutrality rules.

Comcast will be required to take these steps in the next 30 days: disclose "the precise contours" of its current and future network management practices, and submit a "nondiscriminatory network management" compliance plan so government regulators can decide whether they approve. The company will not be fined.

If Comcast fails to comply, it will be automatically required to "suspend the network management practices" associated with handling BitTorrent transfers.

Comcast is widely expected to appeal the FCC's 67-page order to a federal court, most likely the D.C. Circuit, which has taken a dim view of the commission's expansions of its authority in the absence of a law passed by Congress.

Comcast representatives told CNET News as recently as Tuesday that the company's lawyers needed to review the order before they were able to discuss an appeal; they did not immediately respond to a request for comment on Wednesday.

The majority bloc of FCC commissioners--not one is an engineer--wrote in Wednesday's order (PDF):

It is our expert judgment that Comcast's practices do not constitute reasonable network management...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."

In March, Comcast and BitTorrent declared a truce, with the broadband provider saying it will adopt a "capacity management technique that is protocol-agnostic" by the end of 2008. Before the announcement, Comcast had responded to network congestion caused by BitTorrent users by sending forged TCP reset packets, which disrupted transfers and prevented some users from uploading files.

Not helping Comcast's credibility was its poker-faced denial in August 2007 of initial allegations that it was filtering BitTorrent traffic. A few months later, though, it turned out that Comcast really was throttling BitTorrent, after all, and the company was forced to concede to the FCC that it blocks only "excessive" traffic. (The FCC picked up on this in its order, saying "Comcast's first reaction to allegations of discriminatory treatment was not honesty, but at best misdirection and obfuscation.")

As I wrote in an article a few weeks ago, the FCC may have trouble defending its actions in court.

In 2006, Congress rejected five different bills, backed by groups including Google, Amazon.com, Free Press, and Public Knowledge, that would have explicitly handed the FCC the power to police Net neutrality violations.

Even though the Democrats have enjoyed a majority on Capitol Hill since last year, their leadership has shown zero interest in resuscitating those proposals. While the FCC did adopt FCC broad principles (PDF) in August 2005 saying consumers may use the applications of their choice, the agency admitted on the day of their adoption that the guidelines "are not enforceable."

Robert McDowell, one of the two dissenting commissioners, said at the Progress and Freedom Foundation's conference this week that the FCC had relied on dubious evidence, including unsigned declarations.

"Governments need to make sure they have a very thorough record," he said. "The FCC of late has not been doing that."

Also at the conference, Verizon's chief technologist said delaying some peer-to-peer traffic may be necessary to prevent voice applications from being unusable (the company says it is not currently prioritizing traffic in this manner).

The ruling from the FCC stems from a request submitted in November by Free Press and its political allies, including some Yale, Harvard, and Stanford law school faculty. They claim that the FCC has the authority--under existing law--to "impose additional regulations" declaring Comcast's throttling to be illegal. They also enlisted the help of computer scientists from schools including MIT and Carnegie Mellon who argued that Comcast's throttling did not amount to reasonable network management.

(Ironically, some of the same interest groups that sued the FCC over its claim to possess unfettered authority--even in the absence of congressional authorization--to enforce broadcast flag rules are now backing its theories of unfettered authority to police Net neutrality violations. Public Knowledge, for instance, claimed the FCC's use of so-called ancillary authority was "arbitrary and capricious" and "unlawful." Now it loves the idea.)