FCC formally rules Comcast's throttling of BitTorrent was illegal
Federal regulators voted 3-2 on Friday to declare that Comcast's throttling of BitTorrent traffic last year was unlawful, marking the first time that any U.S. broadband provider has ever been found to violate Net neutrality rules.
The Federal Communications Commission handed Comcast a cease-and-desist order and required the company to disclose to subscribers in the future how it plans to manage traffic. Comcast had said that its measures to slow BitTorrent transfers, which it voluntarily ended in March, were necessary to prevent its network from being overrun.
"We need to protect consumers' access, said FCC Chairman Kevin Martin, a Republican. "While Comcast has said it would stop the arbitrary blocking, consumers deserve to know that the commitment is backed up by legal enforcement."
The vote was not unexpected. Martin said recently that he planned to side with the commission's two Democrats on the request submitted in November by Free Press and its political allies, including some Yale, Harvard, and Stanford University law school faculty. That led to a backlash against Martin this week from economic conservatives, including the Bush administration and House Republican Leader John Boehner.
It also is likely to be challenged in court. In 2006, Congress rejected five different bills that would have handed the FCC the power to police Net neutrality violations; the FCC has acknowledged that its own Net neutrality principles "are not enforceable"; the Supreme Court has previously ruled that the FCC has no power to regulate "unless and until Congress confers power upon it."
Comcast said in a statement on Friday that it believes "the commission's order raises significant due process concerns and a variety of substantive legal questions. We are considering all our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays."
Details of the FCC's ruling, which may not be available for a few weeks, remain unclear. While Comcast will face no fine, Martin said the FCC has adopted a new legal "framework" that will let federal bureaucrats deem whether future network management practices are permissible. The dissenting Republicans said they did not receive the final text of the order until late last night--it apparently includes a variant of a "strict scrutiny" test usually reserved to judge whether government policies are legal or not--and it is not yet public.
Commissioner calls ruling unlawful
In an unusually pointed dissent, Commissioner Robert McDowell, a Republican, said the FCC's ruling was unlawful and the lack of legal authority "is sure to doom this order on appeal." McDowell said the order would invite far more extensive FCC regulation of the Internet, with the rules varying by which political party controls the White House: "The ground rules will change based on election results."
The is the FCC's "journey into the realm of the unknowable," McDowell said, saying that the outcome "may result in slower online speeds" for most Americans. Deborah Taylor Tate joined him in a dissent; Democrats Michael Copps and Jonathan Adelstein joined Martin.
A summary of the order released by the FCC on Friday says:
The Commission announced its intention to exercise its authority to oversee federal Internet policy in adjudicating this and other disputes regarding discriminatory network management practices with dispatch, and its commitment in retaining jurisdiction over this matter to ensure compliance with a proscribed plan to bring Comcast's discriminatory conduct to an end.
Under the plan, within 30 days of release of the Order Comcast must:
* Disclose the details of its discriminatory network management practices to the Commission
* Submit a compliance plan describing how it intends to stop these discriminatory management practices by the end of the year
* Disclose to customers and the Commission the network management practices that will replace current practicesTo the extent that Comcast fails to comply with the steps set forth in the Order, interim injunctive relief automatically will take effect requiring Comcast to suspend its discriminatory network management practices and the matter will be set for hearing.
Free Press hailed the vote as a "landmark" decision. "Comcast's history of deception and continued blocking show contempt for the online consumer protections established by the FCC," said Josh Silver, executive director of Free Press, in a statement. "We commend Chairman Martin and Commissioners Copps and Adelstein for standing up for Internet users and working across party lines to protect free speech and the free market."
Not helping Comcast's credibility was its denial in August 2007 of early 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. That also handed competitors like AT&T a perfect opening to say that they don't throttle peer-to-peer traffic at all.
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan. 
When you say this is something the FCC "is clearly allowed to do," what law "clearly" gives the FCC this authority?
What a screw job!!
Bart
http://www.tjoos.com/
The FCC's announced a set of "principles" which were contrary to Federal law (because they violated the policy set into law by Cogress at 47 USC 230(b) and said explicitly that they were "unenforceable." But now they're enforcing them -- and without going through their usual rule making process! When a regulatory agency willingly makes an end run around its own procedures (not to mention the law), you know that something's afoot. In this case, it's inside-the-Beltway lobbying and politics.
What's more, they're being as vague as possible about what this bodes for the future, saying that they'll make rules up as they go along. That's all we need -- a regulatory agency transformed into a dictatorial body that can punish anyone for anything without laying out rules first. Comcast, ironically, has now laid out its terms of service even more clearly; you can find them on the Net at http://www.comcast.net/terms/network/. But the FCC -- which condemns Comcast for lack of transparency -- isn't. What's wrong with this picture?
I've placed some of the facts about this issue, as laid out in my testimony at an FCC hearing in March, on my Web site at http://www.brettglass.com/FCC/remarks.html. Also see my filings with the FCC at http://tinyurl.com/2wf6nd, http://tinyurl.com/5elsy5, and http://tinyurl.com/5gfn6p. Reference these URLs for the truth about these issues -- not from the point of view of inside-the-Beltway Washington lobbyists but from a hard working local ISP who is fighting to give consumers a real choice.
That isn't traffic management -- that's a focused, deliberate attack against a single type of application.
Traffic management would dictate that bandwidth consumed by a client beyond a specified threshhold, would be rejected (not passed at all) or held in queue.
Forging TCP RSTs is the complete opposite of "traffic management."
For the people saying we should be charged by the bandwidth we use...
Another thing wrong with what Comcast was doing, is that they were charging people for different levels of download speed. the cheapest plan was something like 1.5 Mbit/sec, there was a 5 Mbit/sec plan, and the most expensive was something like 10 Mbits/sec. The people who were getting the expensive high speed service are the ones who were downloading lots of movies and bitTorrents. So last year, while I was paying extra for more speed, when I was doing something that actually needed it Comcast slowed it WAY down. When I first heard about this I felt totally ripped off, what was I paying them that extra money for?
sanenazok, can you read the TOS even? It''s RIGHT THERE plain and simple..
Technical restrictions
use or run dedicated, stand-alone equipment or servers from the Premises that provide network content or any other services to anyone outside of your Premises local area network ("Premises LAN"), also commonly referred to as public services or servers. Examples of prohibited equipment and servers include, but are not limited to, e-mail, Web hosting, file sharing, and proxy services and servers;
Honestly no matter what they do I am canceling my subscription once I move. I am going for FIOS or good ole DSL and not paying for a $70/mth bill to a cable company who constantly raises rates and reducing the quality of the channels I am provided.
Comcast was not limiting usage by volume but by application. No one would complain if Comcast were to say, "transfer over X MB in an hour or Y in a day and we will slow you down." Comcast was saying, "use this application and we will shut you down." That is decidedly less than cool.
Thanks,
http://www.couponsmarter.com
How's the wireless ISP in Wyoming? Your talking like this is going to end the internet as we know it and make it a police state where your told what you can and can't do.
I understand your position as a network admin and applaud your resolve to provide that little part of Wyoming with a connection to the internet where big companies can't see the profits, but you know it's the right thing to do to provide people with internet even though they are out in the boonies, so to speak.
You yourself have been speaking so vehemently against the FCC's ruling like it's happening to you! Is Lariat a subsidiary of Comcast? Aren't ISP's allowed to make their own policy as long as it doesn't affect how traffic gets routed through the internet?
I get my internet from a local ISP also, I pay for a 3mb/1.5mb connection while there are faster speeds offered by AT&T and Mediacom in my area. They want to charge almost double what I pay now to have a 5mb/3mb connection. And I chose to stay with them because they stay out of my electronic life. They don't come around asking "You downloaded 3 GB this month, why." "Well, Mr. ISP I played onine games and watched a lot of Hulu this month, along with some netflix streaming, isn't that ok?" Why should anyone have to explain what they do as long as they pay their bill?
Do you yourself go nosing around your customers asking what they do with their connections? If Comcast is in the wrong, then they are in the wrong. Trial by jury of your peers I say. Although not fellow ISP members, let's have it be consumers, much more entertaining on Court TV.
I see two problems here.
One, the FCC has overreached in order to establish new and unlegislated regulatory authority, satisfying some ethereal political mandate from who knows where. Actually, I do know where, but Net Neutrality advocates are missing the boat here.
Two, the failure of the FCC to encourage, even force competitive access, which is within their purview, has allowed the cable and telco monopolies, though primarily cable, to gouge huge profits from the public, while failing to build the infrastructure needed to support the bandwidth required to deliver Anything, Anytime, Anywhere.
As things now stand, bandwidth demand is growing faster than anione had envisioned, even me when I wrote in 2003 that smart Venture guys should snap up all the available-through-bankruptcy bandwidth infrastructure, because huge money could be made when rapid demand growth continued, which it has. And more is needed (hint, hint to wireless guys).
So fault Comcast for not offering more bandwidth, not for managing their underinvestment in same. Fault Martin and the FCC for not forcing competitive access at reasonable rates-another way to encourage bandwidth expansion. Fault Martin and his predecessors for not ridding the US of cable monopolies. Note that in bandwidth capacity per subscriber, broadband penetration and other measures, including consumer costs, the U.S. is behind 13-17 other countries.
That's a shame and can be laid directly at the door of the FCC and their unwritten mandate to protect cable monopolies.
I think that 2 things are going on, they don't want to invest and keep up with demand, and they don't want their cable product to have to compete with internet downloads. I propose that now that cable boxes are run on ip technology across the same lines as the internet that the cable company is already violating the idea of net neutrality, On demand, pay per view, and every other cable channel are running over the same line as your internet. So they are effectively segmenting your bandwidth on the cable in order to send you their video products. So I say that the fcc or some other government agency should do the same as they did with hdtv. Tell all companies that video has to be delivered by the internet, and tell broadcast to get bent. Then tell the last mile companies that their job is not to determine the content that people should get access to but only to provide access to the network. If you allow the same company that gives you the last mile to also have interests in you consuming specific content, you end up with, well, this thread.
- by bruceslog September 20, 2008 7:52 PM PDT
- Yep, AT&T just revised their terms of service to include wording about throttling customers who use alot of bandwidth in their opinion, as well as only allowing redress by arbitration or small claims court.
- Like this Reply to this comment
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Showing 1 of 2 pages (34 Comments)Page is here
http://www.att.net/csbellsouth/s/s.dll?spage=cg/legal/att.htm&leg=ytosAug08
Terms changed are
" AT&T High Speed Internet Service Description
The Service is composed of narrowband or broadband access to the Internet provided by AT&T. The Site, provided by AT&T and Yahoo!, is composed of a broad selection of on-line resources including email, communication tools, forums, shopping services, search services and personalized content and branded programming. Broadband access is provided in speed tiers of: (1) 200 Kbps to 768 Kbps downstream (not available for AT&T U-verse High Speed Internet service), (2) 769 Kbps to 1.5 Mbps downstream; (3) 1.56 Mbps to 3.0 Mbps downstream; (4) 3.1 Mbps to 6.0 Mbps downstream; and (5) 6.1 Mbps to 10.0 Mbps (available only with AT&T U-verse High Speed Internet service) (collectively ?Service Capability Speeds?).
The speeds identified above are Service Capability Speeds, which are the downstream rates at which your line transfers Internet access data between the network interface device at your home, office or apartment building to the first piece of routing equipment in AT&T?s network. Service Capability Speeds should not be confused with Throughput Speed, which is the speed at which your modem receives and sends Internet access data (?Throughput Speed.?). These speeds may vary and are not guaranteed. Throughput speed depends upon many factors including customer location, destination and traffic on the Internet, interference with high frequency spectrum on your telephone line, wiring inside your home, office or apartment, the capacity or performance of your computer or modem, the server with which you are communicating, internal network factors, and the networks you and others are using when communicating. In order to provide a consistently high-quality video service, AT&T Uverse High Speed Internet throughput speeds may be temporarily reduced when a customer is using other U-verse services in a manner that requires high bandwidth. This could occur more often with higher speed Internet access products. <b> It may be necessary, for some AT&T High Speed Internet users, for AT&T to set a maximum downstream speed on a customer line to enhance the reliability and consistency of performance. While this performance optimization process will prevent some customers from obtaining the maximum downstream speed capability, service capability speed will not be set lower than the service tier you have purchased. </b> "
Which could bring your 6Mbps service down to 3.1 Mbps.
They do not say where the tripwire is.
The rest of the paragraph is
" a. IP Addresses. AT&T High Speed Internet and AT&T U-verse High Speed Internet Services are provided with either a dynamic Internet Protocol (?IP?) address, a static IP address, or multiple static IP address service (as applicable) at AT&T?s sole discretion. The dynamic IP address is a single Internet address intended for use with a single Member Account and any associated Sub Accounts. The static IP address or multiple static IP address is intended for use with a single computer or a network of computer/servers. You may not use the Service in a manner that is inconsistent with these intended uses. "
" * Termination of Voice Service. With AT&T High Speed Internet Direct service, we can deliver the benefits of broadband without a home phone connection. For customers who terminate their home phone service with AT&T ? but not their high speed Internet service ? we have added new language that will ultimately enable us to maintain a customer's broadband connection at the then current rates, terms, and conditions for AT&T High Speed Internet Direct service.
Other changes include language that better clarifies bundle discounts and requirements, and the addition of a service restoral fee should an account be suspended. "
Ok, well, you can read the rest at the link I included here.
Like everyone said, once Comcast paved the way, the rest will smell the easier money and follow.
To trevogre,
You were right in your last paragraph when you said "I think that 2 things are going on, they don't want to invest and keep up with demand, and they don't want their cable product to have to compete with internet downloads."
The whole paragraph hit the mark, actually.
They don't want us paying for internet and watching movies by internet.. because they want us to pay for their multi-media services ( Comcast Cable TV, ATT's DishNetwork, etc. ) to watch movies, and pay for our internet as well. Even though, as you said, they are often delivering both services through the same pipeline into our homes, be it a cable wire, fiber optics, wireless, or whatever.