FCC Continues to Probe Comcast Broadband Network Management

The agency still plans an April 17 hearing at Stanford University in Palo Alto, Calif., on network management, agency sources said. The hearing will be the second on the subject. Comcast drew heavy fire from commissioners and witnesses at a Feb. 25 hearing at Harvard Law School in Cambridge, Mass. The April 17 event may supplant an April 10 monthly FCC meeting if commissioners vote soon on digital TV notices of apparent liability and a wireless emergency alert item, agency officials said. The DTV fines aren’t controversial among commissioners, so they may be adopted before April 10, they said.

The FCC started examining Comcast’s Web practices in January by seeking comment on a petition in which Free Press, Public Knowledge and others opposing media consolidation urged the agency to find that blocking P2P and other traffic violates the FCC’s network neutrality principles (CD Jan 15 p2). The FCC took up a similar filing by video Web site Vuze. Officials at Free Press, Public Knowledge and Vuze said they won’t drop their complaints that Comcast slowed down P2P file transfers from BitTorrent, despite the settlement.

Vuze will pursue its petition at the FCC, General Counsel Jay Monahan said in an interview. Comcast’s announcement is an encouraging development, but enforceable rules around network management practices are needed, he said. “We got to where we are today… because Comcast got its hands caught in the cookie jar. Now they're coming forward to cooperate with BitTorrent and possibly others,” he said. “That’s obviously a great thing, but in our mind this does not change anything in terms of needing enforceable rules.”

Vuze plans to monitor Internet service provider behavior with a software plug-in it introduced this week, Monahan said. The tool will track when ISPs slow or impede a user’s connection and file transfers. Vuze hopes that by gathering data from a variety of users across ISPs, it can show the extent of the issue. “At least by inference, we might be able to show clearly different rates of this going on,” Monahan said.

Vuze urged Comcast to engage in the type of industry cooperation the cable operator did Thursday when it first filed its FCC petition, but Comcast’s deal with BitTorrent isn’t a panacea, Monahan said. BitTorrent shares the name with the popular file transfer protocol, but many companies use the BitTorrent protocol to move files around the Internet. So a deal with BitTorrent doesn’t necessarily affect the other companies that have used the open-source BitTorrent protocol for their own ends. A pledge by Comcast to change its policies doesn’t mean other ISPs will follow suit, Monahan said: “Even if Comcast is cooperating, what about all the others? That’s our concern… To the extent that the commissioners applauded the cooperation, we agree with that. But it doesn’t change anything in terms of needing enforceable rules.”

The agreement with Comcast is “pretty concrete from our perspective,” BitTorrent President Ashwin Navin said in an interview. Comcast has told the company that it will move BitTorrent traffic from the managed application layer to a layer treating all traffic “blindly” from a hardware perspective, Navin said. BitTorrent is “optimizing” its client software to capitalize on Comcast’s changes, once they are in place, he said: “We can make changes to our software on a dime.” There will be no difference in Comcast treatment of traffic between the free, downloadable BitTorrent client for end users and the technology undergirding BitTorrent’s licensed entertainment network, Navin said. The agreement is a “template” for those that other networks may make, regardless of the different hardware and standards used in phone networks, he said. More important is Comcast’s promise to upgrade its overall capacity, including for upstream traffic, and work with BitTorrent to develop better network hardware that improves content delivery, he said. There’s a “spirit of fairness and openness here that’s right in the heart of the net neutrality debate,” Navin said. He cited BitTorrent plans to publish its research with Comcast for possible adoption by standards bodies.

Free Press’s petition for declaratory ruling asks the FCC to address issues “broader than just one company,” General Counsel Marvin Ammori said: “Our complaint is based on months of deception and months of blocking.” Comcast struck a deal with BitTorrent only because the cable operator’s practices were being scrutinized on Capitol Hill and at the commission, said Ammori. “Comcast acted in the shadow of government regulation, which is why Commissioner McDowell’s statement is wrong,” added Ammori. “This isn’t a solution to the problem. This is one company making a deal with Comcast.” The FCC must take a “wide-ranging look” at how all Internet service providers manage their networks, said a Public Knowledge spokesman. “These agreements are nice, but it’s no substitute for broader protection for consumers,” he said. “It’s the principle of the thing that’s at stake.”

Comcast and BitTorrent are negotiating with “other parties to help facilitate a broader dialogue and cooperation across industries,” they said. They weren’t more specific. Comcast doesn’t block any Web sites or online applications, including P2P, said a spokeswoman. “This agreement shows that the best way to deal with these issues is through a collaborative process in the marketplace rather than with legislative or regulatory intervention,” she said.

McDowell agreed. “It is precisely this kind of private sector solution that has been the bedrock of Internet governance since its inception,” he said in a written statement. “Government mandates cannot possibly contemplate the myriad complexities and nuances of the Internet.” McDowell told the Tech Policy Summit in Hollywood, Calif., that government should stay out of broadband innovation’s way. (See separate report in this issue.) FCC Commissioner Deborah Tate cited the Comcast-BitTorrent deal as an example of industry solutions to problems that avoid regulation. “I look forward to even more collaborative, industry-based solutions” to the issue of “illegal content distribution, from pirated movies and music to online child pornography,” she said in prepared remarks. McDowell and Tate declined to be interviewed.

Martin still worries that “Comcast has not made clear when they will stop this discriminatory practice,” he said in a press release. “It appears this practice will continue throughout the country until the end of the year and in some markets, even longer,” Martin said. “It is not at all obvious why Comcast couldn’t stop its current practice of arbitrarily blocking its broadband customers from using certain applications.” He commended the company for having “reversed course” by admitting that such blocking violates the FCC’s four net neutrality principles. Martin declined to be interviewed.

The FCC Democrats said Comcast’s deal with BitTorrent reflects desire among some at the agency and some of the public not to stifle Internet content. “Today’s announcement confirms my belief that the FCC needs to play a proactive role in preserving the Internet as a vibrant place for democratic values,” Commissioner Michael Copps said in a written statement. “If it had not been for the FCC’s attention to the issue earlier this year, we would not be having the conversation that we are having now.” Commissioner Jonathan Adelstein is pleased to see Comcast “listening to the chorus of consumer calls for open and neutral broadband Internet access,” he said in written remarks. “These discussions should continue with other applications providers.” Neither commissioner responded to requests for further comment.

Changing Comcast’s network management system to target heavy bandwidth users rather than applications would require changing the software on equipment already in place at several points on the network, Chief Technology Officer Tony Werner said. Lab tests of the software are under way and the company soon will begin introducing the system in certain markets, aiming for full deployment before year-end. Rather than controlling the flow of traffic based on which file transfer protocol or application it uses, the new system will target users that are generating a heavy amount of bandwidth.

As with Comcast’s past network management tools, the new system would affect users only during peak traffic times, Werner said in an interview. “The basic tenet that we're working on is the fact that it will not be based upon an application or protocol,” he said. “This will only kick in if you hit a period of congestion. And it will only do momentary slowdowns to the excessive use accounts for a momentary period of time until the congestion passes.” Congested periods vary by network and market, but typically mirror TV viewing patterns during the week and are less predictable on weekends, he said.

The system that Comcast uses ultimately will be non- proprietary and non-discriminatory, Werner said. The company will reach out to other network experts in industry and in universities, he said. “We're trying to get as many people involved” as possible.

Comcast’s announcement marks a natural evolution in how service providers manage networks, said Tom Donnelly, Sandvine executive vice president of marketing. “The techniques and technologies have evolved and they lend themselves to this kind of approach more so now than they have in the past,” he said. “This is something that is ready for prime time, and it’s in line with the things Sandvine and other vendors in this space are doing.”

Service providers want their networks to support the widest range of applications possible, Donnelly said. “The objective has always been to ensure a fair allocation of resources on the network,” he said. “I think what’s emerging are more powerful tools to achieve that end,” he said. ISPs that have had that objective in mind largely have the gear in place to support a system such as Comcast has laid out, he said: “For service providers that have invested in infrastructure to understand and manage their network, this will be largely a software and policy evolution.”

House Telecommunications Subcommittee Chairman Edward Markey, D-Mass., said he will “monitor the ongoing discussions” between Comcast and BitTorrent: “Even if today’s announced discussions prove successful, they may ultimately involve only the policies of one broadband provider.” Markey has introduced a bill (HR-5252) to set national broadband policy. Sen. Byron Dorgan, D-N.D., introduced a similar bill (S-215) to amend the 1934 Communications Act to mandate Net neutrality.

NCTA President Kyle McSlarrow said cable operators will keep working with Internet applications and high-technology companies on broadband. “Government interference in the development of this market could easily foreclose or otherwise prevent the emergence of efforts such as this one” by Comcast and BitTorrent, he said in a press release. MPAA President Dan Glickman called the companies’ agreement “exactly the kind of industry cooperation that is urgently needed to address the problem of online piracy.”

Comcast’s announcement probably won it public relations points, Ogilvy Public Relations Vice President Greg Stanko said. “It was a short-term success for Comcast,” he said. “Certainly it removes a lot of the attention that reporters might pay to the Stanford hearing.” It gives Comcast a chance to claim that as the largest U.S. cable operator it already has dealt with the problem, likely spurring similar actions by cable industry peers, he said: “It sort of defangs the issue, at least in the short term.”

Comcast probably acted to blunt the threat of regulation, he said. “Comcast saw the handwriting on the wall, decided it was probably easier to make an agreement with BitTorrent, and let the FCC commissioners know that something was coming,” said Stanko. That way, the commissioners wouldn’t be blind-sided and were more likely to react positively, he said. “By the looks of it they were partially successful.”