Net Neutrality Groups Ask FCC to Prohibit P2P Blocking
Peer-to-peer activities are as legitimate as any other on the Internet, and should be expressly protected from blocking by Comcast and other network providers, net neutrality supporters told the FCC in a complaint and petition for declaratory ruling. The matter arose when the Associated Press tested Comcast connections around the country and found that transfers through P2P protocol BitTorrent were markedly slower or blocked entirely in some places. Comcast has said it hampers BitTorrent traffic at times to keep heavy downloaders from harming service to other customers. The groups that filed include Free Press, Public Knowledge, the Media Access Project, the Consumer Federation of America, Yale Law School’s Information Society Project, and the directors of Internet law centers at Harvard and Stanford.
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Since Comcast calls its traffic-shaping “reasonable network management,” other providers may follow suit in a “bogus” reading of the FCC’s Internet policy statement on the “four freedoms,” the petition said. The conduct violates three of the freedoms, the petition said: The right of consumers to run applications and services of their choice, to access “any lawful content,” and to have competition among access, service and content providers. The groups also want the FCC to declare “secretly” degrading applications a deceptive practice.
The FCC’s response could come down to whether it considers P2P traffic “lawful.” Much traffic through BitTorrent and similar protocols -- which let users quickly upload to others the same content they're downloading -- is widely agreed to infringe copyrights, especially on video content. The petition said P2P applications and BitTorrent in particular “are emerging as the primary means for content providers to distribute legal movies and other video programs,” such as through deals with movie studios and the company founded by BitTorrent’s creator. Comcast has an “economic incentive to undermine competitors to its cable video-programming distribution,” so fighting infringement would be a “silly” reason for its actions. Other applications with mostly legal uses, including FTP and Lotus Notes, were also found to be blocked or degraded by Comcast, the groups said.
Comcast has long been accused of degrading P2P traffic but acknowledged “delaying” traffic only after the AP’s tests, the petition said. Its actions are closer to “spoofing” and “jamming,” because they are said to tell the computers at each end of a P2P connection to “reset,” and drop the connection. This is aggravated by Comcast’s apparently slowing only uploads, so users don’t notice the intervention, the petition said. “All a provider needs to do is render those [competing] applications sufficiently unreliable that people stop trying to use them.” The groups cited FCC Commissioner Michael Copps’ August 2005 statement that consumers shouldn’t be blocked from using higher- bandwidth applications such as VoIP and streaming video.
Hitting a sore point with the FCC, the petition said broadband penetration wouldn’t be helped if providers had carte blanche to degrade applications. The FCC has done little to help diversify access beyond the “telephone-cable duopoly,” so providers have little incentive to upgrade network bandwidth and speed. “So perversely, the network provider would have an incentive to suppress bandwidth availability, and thereby reduce speeds, since it can charge both the customer and a third party for the equivalent of a bandwidth upgrade,” requiring them to pay more to use certain applications, the petition said.
There are ways to protect service quality for all users without degrading traffic to some, the petition said. “They could readily set dynamic quotas for each user on the [cable] loop, so as to ensure that there is always bandwidth available for users who are not running P2P applications,” without affecting users’ choice of protocols. Comcast’s actions, left unchecked, could actually worsen Internet congestion. “Users could have to use protocols that are less efficient than BitTorrent” for large video files, the petition said.
Companies shouldn’t be allowed to advertise that they offer “Internet” service if they interfere with applications, the petition said. This is especially egregious, it said, when Internet service is promoted by telling users they can share “videos, photos and other rich media,” as Comcast recently did.
The FCC needs to live up to its promise to enforce the Internet policy statement, which has been cited repeatedly by FCC Chairman Kevin Martin as the reason net neutrality legislation is unnecessary, the petition said. Comcast should be subject to preliminary and permanent injunctions, and suffer “significant forfeitures… because the loss is high and because the costs of detecting and deterring clandestine blocking are high.”