Politics and Law

WASHINGTON--Web companies had better get used to more government interference, intervention, and regulation targeting their businesses, Kevin Kuzas, vice president and general counsel for Comcast Interactive Media, said on Wednesday.

Kuzas gave a keynote address at a Web 2.0 forum on Wednesday hosted by business and legal publisher Pike & Fischer.

There's a myth among Web entrepreneurs, Kuzas said, that the government is irrelevant to their business.

Kevin Kuzas of Comcast Interactive Media speaks about Web 2.0 law on Wednesday.

(Credit: Stephanie Condon/CNET Networks)

"There's a little bit of truth to this idea that policy makers are undoubtedly far behind," he said. "Government regulation can take years, while a Web 2.0 product is on a time frame of months, if that.

Web 2.0 companies will certainly attract more attention as larger companies enter the fray. Comcast Interactive Media started in January 2006, and along with Comcast.net, it runs a number of socially oriented ventures, such as the movie site Fandango and the social e-newsletter Daily Candy.

"So far, politicians have had a hands-off approach to the Internet," Kuzas said. "But "that kind of disparate treatment will go away over time."

Even though CIM is affiliated with a heavily regulated cable television business, Kuzas said it should be regulated more like Google than Comcast.

He said Congress is receptive to suggestions in the way it approaches Web law, particularly with respect to copyright law.

On Capitol Hill, there is "more recognition that the (Digital Millennium Copyright Act) is 10 years old and doesn't really fit these companies anymore," he said. Change is possible, "but we're looking at a multiyear time frame."

It's unclear how much of the talk was in reference to the Federal Communications Commission's recent action against Comcast on BitTorrent grounds, which the broadband provider has appealed, or a warning to Internet companies like Google that have been Comcast's political rivals on Net neutrality in the past.

Comcast is appealing a ruling by the Federal Communications Commission that found the broadband provider had illegally blocked some customers' Web traffic.

The appeal, filed Thursday in the U.S. District Court of Appeals in Washington, challenges the FCC's ruling on August 1 that Comcast's throttling of BitTorrent traffic last year was unlawful--the first time any U.S. broadband provider has ever been found to violate Net neutrality rules. The FCC issued a cease-and-desist order and required the company to disclose to subscribers in the future how it plans to manage traffic.

"We filed this appeal in order to protect our legal rights and to challenge the basis on which the (FCC) found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules," Comcast executive vice president David L. Cohen said in a statement.

FCC Chairman Kevin Martin said he was "disappointed by Comcast's decision to appeal."

Comcast, the largest cable provider in the U.S., has been under fire for months after it was discovered the company had been slowing down peer-to-peer traffic on its network. 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. At a public hearing in February, Comcast Executive Vice President David Cohen said, "Comcast may on a limited basis temporarily delay certain P2P traffic when that traffic has or is projected to have an adverse effect on other customers' use of the service."

Consumer groups were incensed by the tactic, and the FCC investigation ensued over whether Comcast had violated any of its Net neutrality principles.

Since that ruling, Comcast announced plans to reduce Internet service to customers it deems to be using too much bandwidth. To keep service flowing to other customers, Comcast plans to impede Internet speeds to its heaviest users for up to 20 minutes, Mitch Bowling, Comcast's senior vice president and general manager of online services, told Bloomberg in an interview.

The company also announced it would set a data cap of 250GBs per month for its residential customers beginning on October 1.

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.)

Verizon CTO Richard Lynch tells conference attendees that engineers, not lobbyists or interest groups, should be making decisions on how to manage broadband networks. He says some Net neutrality advocates hear of a 22-millisecond delay and get a case of 'paranoia.'

(Credit: Declan McCullagh/News.com)

ASPEN, Colo.--Verizon's chief technologist took a swipe at Net neutrality advocates on Tuesday, saying the concept has become overly politicized and important engineering details have been overlooked in Washington debates.

"We need to guard against turning technical and business decisions into political decisions," Verizon's Richard Lynch said at the Progress and Freedom Foundation's technology policy conference here.

Lynch gave the example of a customer placing a call using a voice over Internet Protocol, or VoIP, service that relies on time-sensitive packets. Unless a continuous stream of VoIP packets arrives, the call quality can suffer or even become incomprehensible.

How to accomplish that in a congested network? The answer may include delaying peer-to-peer transfers. "For me as a carrier, I need to satisfy the VoIP customer--whether it's mine or someone else's is irrelevant here--by delivering those packets in a timely fashion," Lynch said. "That may mean that for economic reasons, within the network, to keep the cost reasonable to keep the price reasonable, that I need to slow down (what's not) a time-sensitive file."

Some people hearing this "get all incensed and they accuse me of violating things I didn't even know that I could violate," he said. Customers who are "doing a P2P download or e-mail, they aren't going to see that 22-millisecond delay. And yet that's the kind of thing that seems to (cause) paranoia."

A Verizon representative told us after the talk that the company is not prioritizing VoIP over peer-to-peer traffic, and that Lynch was speaking generally about approaches to the problem of congestion that all broadband providers face. Verizon has stressed that it spends over $16 billion a year on adding greater capacity to its network and says it is working collaboratively with peer-to-peer companies through the P4P working group to "maximize networks for consumers."

Lynch's remarks come weeks after the Federal Communications Commission ruled against Comcast for adopting the same general sort of network management practices. By a narrow 3-2 vote, the FCC handed Comcast a cease-and-desist order telling it not to interfere with BitTorrent transfers, even though the company had already ceased the practice back in March.

What may strike an outside observer as bizarre is that the FCC votes for an order before it's actually written. The order is still being drafted, and the text of the document will eventually be released. (One source in a position to know said that the dissenting FCC commissioners still haven't been given the text.)

Taking the measure of Net neutrality
Joe Waz, Comcast's senior vice president for external affairs, said the arguments of Net neutrality proponents--presumably meaning groups like Free Press and Public Knowledge--were "absurd."

"The issue was an engineering issue," Waz said in a panel discussion following Lynch's speech. He added that critics claimed Comcast was trying to disadvantage P2P video to benefit its own video offerings--but they never explained "why we wouldn't interfere with streaming video" from sites like YouTube that could be handled better.

Robert McDowell, one of the two dissenting FCC commissioners, said there were "evidentiary jurisprudence" problems with the agency's ruling. In part, McDowell said, "there were a couple of unsigned declarations" that the FCC relied on.

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

Kathleen Abernathy, a former FCC commissioner and now a partner at the law firm of Akin Gump Strauss Hauer & Feld, agreed that the term Net neutrality made little sense. (Abernathy is also a director of the Progress and Freedom Foundation, a free-market group that has been a critic of the concept.)

"It was such a great phrase that it's morphed into more than what it really is," Abernathy said. "You have to peel it back and ask, 'What do you really mean?'"

Both Comcast and Verizon said that engineers, not lawyers and lobbyists, should be making network management decisions. "I do get very, very concerned that the people who are taking things like deep packet inspection and making it a horrible thing need to look at it from an engineer's viewpoint," Lynch said.

On a related note, Lynch said that Verizon was trying to work cooperatively with large content holders--the very ones that said Monday they wanted broadband providers to filter their networks--and wanted them to "feel comfortable that their content will be dealt with in the way they truly believe it should be."

But he stopped short of saying Verizon would actively monitor its customers' online activities to detect copyright violations. "I can't tell you that I will police for you," he said. "I don't think it would be appropriate for me to do that...(We want) to stay on the right side of the privacy position that we've taken as a company."

AT&T, by contrast, said in January that it was testing technology to spot piratical activity. On Monday, we asked the company about its current plans. (We asked: "Can you confirm that AT&T is not monitoring and has no plans to monitor its customers' traffic or other online activities to detect possible copyright infringements?")

Spokesman Michael Balmoris replied in a way that didn't exactly answer the question: "We have said that we are working with some in the content industry with the goal of encouraging the legal downloads of movies, TV shows, and other entertainment and content--we want our customers to access any legal content they want. In addition, let's set the record straight: we have not said that we are going to filter our customers traffic to detect possible copyright violations."

Updated at 11 p.m. PT with subsequent comments from a Verizon representative.

Mel King is a Boston-area community organizer locally famous for a housing sit-in, an almost-successful mayoral campaign, and the South End Technology Center, which provides low-cost computer training.

King, born in 1928, has long been a critic of telecommunications companies and an advocate of strict Net neutrality laws. He participated in an activists' "technology convening" in 2006 that fretted "companies who own the 'pipes' will control who gets on and what they can say." He joined a pro-Net neutrality coalition that opposed federal legislation backed by broadband providers.

Excerpt from a pro-Comcast, anti-Net neutrality op-ed in the Harvard Crimson newspaper supposedly written by Boston activist Mel King. To see the full article, click on the image.

Yet King placed his name on an opinion article in the Harvard Crimson in March that took the opposite position. It stated, "Most experts agree that broadband providers should be allowed to reasonably manage their networks," and it poked fun at the "idea that broadband networks should blindly treat each bit of information on the Internet equally."

King's article appeared eight days after the Federal Communications Commission held a hearing at Harvard University's law school in February where commissioners slammed Comcast's throttling of BitTorrent and promised penalties that were formally approved this month. In the op-ed, King dubbed the event a "dog and pony show" and an "obsequious effort to reassure Silicon Valley special interests--like Google."

There's one problem with this chronology. King may not have been the actual author. Instead, a secretive lobbying organization in Washington, D.C. called the LawMedia Group--hired by Comcast--did some or all of the writing. Comcast acknowledges that it "has a relationship" with LMG.

In a telephone conversation with CNET News, King confirmed the LawMedia Group's involvement. "I understand what they're doing," King said. "I don't think there's any mystique about any of this. It's getting the stuff into a place where we can have a kind of dialogue on it." When pressed for details such as whether he was paid for the use of his name, King hung up the phone.

Op-eds of dubious provenance are nothing new in political circles, and fake grassroots "astroturf" campaigns enjoy a long, although hardly distinguished, history. One of the most influential practitioners of this art is the LawMedia Group, which has emerged as a behind-the-scenes Washington advocate for Comcast in its Net neutrality tussle with the FCC. In May, the LMG began representing Microsoft in its attempt to use the political process to sabotage a Google-Yahoo advertising deal.

"LMG is one of several firms we work with in D.C.," Microsoft spokesman Jack Evans said. "It's no secret that we oppose the Google-Yahoo deal and that there's been a great deal of opposition to it by advertisers, publishers, consumers, and legal experts." Evans points out that Google has hired a constellation of D.C. lobbyists and public relations groups to tell its side of the story.

Microsoft hired LMG in early May for what a source with knowledge of the situation described as a six-figure monthly retainer.

Immediately afterward, anti-Google coalitions of dubious provenance--an LMG specialty--sprouted. The American Corn Growers Association, the League of Rural Voters, and a group called the Latinos in Information Sciences and Technology Association (LISTA) sent a letter to the Justice Department asking it to investigate Google's "search monopoly." Prior to that time, those groups had no history of aggressive anti-Google advocacy.

On June 9, LISTA complained about the Google-Yahoo deal. The same day, the corn growers asked Congress (PDF) to investigate.

The effort was a media success. Articles with titles like "Google, Yahoo Potential Deal Worries Heartland," and "Civic groups seek antitrust probe of Google, Yahoo talks," and "Alarm at Google Yahoo partnering" appeared, without any mention of LMG or questions about what supposedly raised sudden antitrust alarms on the part of rural voters or corn growers.

A CNET News article published in June reported that the name of an LMG employee, Alexandra Esser, appeared in the metadata of the letter ostensibly written by the corn growers and other grassroots groups. LMG Vice President Gil Meneses told us at the time that Esser "merely PDF'd a copy before distributing it" to reporters.

LMG declined repeated requests during the past few weeks to be interviewed for this article. Meneses said on July 31 that "I am out of pocket and focused on a different matter right now" and has not replied to follow-up queries. An LMG spokesman--who insisted that a condition of the conversation was that he not be identified in this article--refused to answer questions on Wednesday.

A firm that prefers the shadows
Even by Washington standards, the LawMedia Group is highly secretive. Until recently, nearly all pages on its Web site were password-protected. No clients are listed. Perhaps the oddest aspect is that not one employee's name--not even the identity of its founder or principals--is publicly disclosed.

LMG was founded by Julian Epstein, a former high-ranking House Democratic aide and party donor whom The Washington Post once called a "dashing bachelor, a hip-hop aficionado who drives a soft-top Jeep Sahara and lives in an Adams-Morgan loft he designed himself." In an advertisement on the Democratic Party's Web site, LMG describes itself as providing "grassroots lobbying" and "issue/initiative" management. It also has filed disclosure reports with the U.S. Senate for outsourced lobbying. (LMG has told us that it prefers to be called a "public affairs firm.")

For a group that prefers to remain in the shadows, LMG recently has found itself in the uncomfortable glare of the media's klieg lights. In addition to our report from June, the Post published an article on July 29 reporting that LMG may have written an anti-Wal-Mart Stores op-ed supposedly authored by Charles Steele Jr., the president of the Southern Christian Leadership Conference. The op-ed appeared in publications including the Tuscaloosa News and accused Congress of "subsidizing Wal-Mart, a company that recorded $3 billion in profits in the first quarter of this year."

It happens that Wal-Mart is a donor to Steele's group. And Wal-Mart wasn't happy with the op-ed. Steele's attorney told the Post's Jeff Birnbaum that, "I believe LMG played a role in this scenario; I can't say how big a role. LMG is in that chain somewhere." LMG, which is representing banks and credit card companies that are opposing Wal-Mart, would say only that it was tangentially involved.

Who actually writes these op-eds?
Few seasoned political observers would be surprised that op-eds are ghost-written on behalf of corporations by lobby groups or public relations firms. There are plenty of shops that advertise rates, with one charging $749 per op-ed, and they tend to be staffed by former journalists hoping to better their previous salaries.

LMG is one of those shops. A Web profile of a former LMG staffer boasts that he "drafted op-eds for clients." Art Brodsky, a former journalist who opposes the cable industry's Net neutrality arguments as spokesman for Public Knowledge, says in his bio that he "helped to draft op-eds and releases and participated in issue strategy" at LMG on behalf of the cable providers represented by the National Cable and Telecommunications Association.

But even in Washington's cynical political circles, it's still considered bad form to be found out.

In the case of King, the Boston-area activist who defended Comcast on Net neutrality grounds in the Crimson, LMG seems to have been deeply involved in the publication of his op-ed. LMG's Esser appears to have sent him e-mail on February 20 saying: "Thank you again for helping with the op-ed. Pasted below, please find the final version. We will keep you posted on the issue."

The op-ed appeared in the Crimson soon after. (Esser was the LMG employee whose electronic fingerprints appeared on the letter that the corn growers claim they wrote.)

King's op-ed describes him as someone who "has taught as an Adjunct Professor at MIT." He is listed on MIT's Web site as "Adjunct Professor in the Department of Urban Studies and Planning" and has a campus phone number and mit.edu e-mail address. MIT's directory calls him a "senior lecturer emeritus."

An MIT spokeswoman says King is "not on the MIT payroll--he hasn't been for some time" and declined to comment on whether ghost-written articles violate MIT's strict rules on academic integrity. (MIT's handbook (PDF) prohibits any student--let alone faculty--from presenting "as his or her own the work of another." Crimson policies say op-eds must be "signed by their authors" and ones representing viewpoints of a corporation must be disclosed as such.)

Malcom Glenn, the president of the Crimson, told us that the op-ed was not solicited by the paper and that it was placed by someone claiming to work for King. "The initial contact was from Amy Kennedy, who said she was the secretary for Mr. King," Glenn said.

A LinkedIn.com profile for an Amy Kennedy says she was a communications assistant and press secretary for LMG from June 2006 through June 2008.

In a telephone conversation, King initially seemed unclear about the content of his op-ed, which defended Comcast in no uncertain terms and warned that the "FCC is dangerously far off track." He asked us if we knew that Comcast had tried to pack the Harvard room with people it hired, saying "this is what is troubling."

When asked about the details of the op-ed, King replied: "You can talk to Kevin Parker, he's at the LawMedia Institute." Parker is listed on the Naymz networking site as a "senior advisor" to LMG.

King added, before hanging up abruptly: "Nobody pays me."

Jesse Jackson disavows his own statement
Another peculiarity of King's op-ed is that portions are identical to a Rainbow Push coalition statement attributed to the Rev. Jesse Jackson and dated three months before. The statement supposedly written by Jackson was a response to an FCC vote related to media ownership.

Both items include this word-for-word identical passage: "People of color make up 33 percent of our population but own just 3 percent of all broadcast TV stations--and research shows that the number of owners is plummeting at alarming levels." Three other passages are extremely similar. (See our PDF for a side-by-side comparison.)

Comparison of what Jesse Jackson supposedly said with what Mel King supposedly wrote, raising the possibility of a third-party ghost-writer such as LMG. See PDF for full side-by-side comparison.

A source with knowledge of the situation said that LMG has a relationship with Jackson that includes ghost-written articles on behalf of corporate clients. The source pointed to a February op-ed in the Washington Times talking about a $40 billion Air Force contract for aerial refueling tankers--supposedly written by Jackson, who's not known for his military expertise or concern with Boeing's profitability.

One explanation is that whoever wrote King's op-ed copied the text of Jackson's press release, without attribution, that appeared three months earlier. Another one is that the same author, perhaps to save time, used the identical anti-FCC language to write both pieces.

Another dispute over the legitimacy of a Jackson statement arose in February, at the same time as the FCC's field hearing at Harvard. A flier distributed by an unnamed public relations firm said there would be an anti-FCC protest organized by the NAACP's Boston and Cambridge branches, according to the Associated Press. (A person with knowledge of the event says that LMG was involved in organizing the protest.)

File photo: Jesse Jackson at so-called digital divide event in the San Francisco Bay Area.

(Credit: Declan McCullagh/mccullagh.org)

The flier quoted Jackson as saying FCC Chairman Kevin Martin supported a "massive new and unjustified welfare for the rich program."

Jackson told the AP he never made that statement, which is an odd claim as the phrase appeared in a letter Jackson supposedly wrote to the FCC in October 2007. It took Comcast's side in the dispute over a la carte cable channel regulations, calling them Martin's own personal "obsession."

This raises the obvious questions: if Jackson didn't write that letter and send it to the FCC last year, who did? Could the NAACP's common cause with Comcast have anything to do with a $5 million "voter education" partnership? And what, exactly, was LMG's involvement?

Neither Jackson nor the Rainbow Push coalition responded to repeated inquiries.

Disclosure: Declan McCullagh is married to a Google employee

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 practices

To 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.

Kevin Martin, the Republican chairman of the Federal Communications Commission, is drawing fire from economic conservatives over his plan to declare that Comcast violated the law when throttling BitTorrent last year.

The vote is expected at a FCC meeting (PDF) on Friday morning. It promises to be a landmark one: this would be the first time the commission has ruled on a Net neutrality violation. (An earlier one was settled without a formal ruling.)

Martin's intra-party backlash started on Wednesday with an editorial in the Wall Street Journal that started with this uncomplimentary paragraph: "Bad personnel decisions have haunted the Bush Administration, and one of the bigger disappointments is Federal Communications Commission Chairman Kevin Martin. In his last months as Master of the Media Universe, he seems poised to expand government regulation of the Internet."

The Journal also reported in a news article on Friday that the Bush administration itself is irritated. "We're concerned about the decision," Meredith Attwell Baker, acting head of the Commerce Department's National Telecommunications & Information Administration, told the paper. "It appears to reverse a decade-old bipartisan policy against regulation of the Internet."

There's also House Republican Leader John Boehner, an Ohio Republican, who sent a letter (PDF) to Martin on Thursday warning him of going through with his plan to rule against Comcast, with the help of the five-member FCC's two Democrats. The text of the letter:

Dear Chairman Martin,

I am dismayed by recent press reports that you intend to interfere with the network management decisions of broadband providers, essentially regulating the Internet. As one of your Republican colleagues at the FCC, Commissioner McDowell, so aptly explained in his July 28 Washington Post editorial, "[t]he Internet has flourished because it has operated under the principle that engineers, not politicians or bureaucrats, should solve engineering problems." Congress has intentionally refrained from imposing the heavy hand of government, which is precisely why we have seen such rapid growth in the Internet. As the Wall Street Journal editorial board pointed out July 30, "the FCC's job is not to determine business models in the private sector. The community of Internet service and content providers has proven itself more than able to work out problems on its own as Web use has exploded."

As press reports indicate, the current case is no different. Difficulties in quickly transferring large files led to the development of cutting edge peer-to-peer technology. When a small minority of subscribers--often using these applications to share pirated music and movies--began clogging the networks to the harm of the large majority of users, broadband providers began taking steps to alleviate the congestion. This, in turn, has prompted peer-to-peer developers to collaborate with broadband providers to find better ways to manage traffic. It is this market-based, self-governing nature of the Internet that is the key to its success. Your heavy handed attempts to inject the FCC into the middle of that process threaten to hijack the evolution of the Internet to everyone's detriment. It will also deter the very broadband investment we need for the Internet to continue growing to meet the increasing demands being placed upon it.

Adding insult to injury, it appears you are wading into this debate on very shaky procedural and legal grounds. While the FCC has endorsed certain Internet policy principles, it has never adopted regulations through a proper notice and comment rulemaking. Nor should it, for the reasons I outline above. Nonetheless, your continued pursuit of this matter suggests that you are making not only a poor policy judgment, but a poor legal one, as well. I urge you return to a sound market-oriented approach, rather than continue down the path you have chosen. It will surely stifle one of the greatest technological and economic success stories our Nation has seen.

Adam Thierer, a policy analyst at the free market Progress and Freedom Foundation (which began its days as Newt Gingrich's favorite think tank), wrote this week that liberal activists "will incessantly petition the FCC to review each and every business model decision and encourage the unelected bureaucrats at the agency to manage the Internet to their heart's content."

It's possible that this last-minute criticism will change Martin's mind, or he may be spooked at the prospect of damaging his future political viability (at least inside the Republican Party). We'll know for sure in a few hours.

New York state Attorney General Andrew Cuomo's recent threats of adopting unspecified "legal remedies," potentially including criminal prosecution, against Comcast apparently worked.

Comcast responded this week by saying it signed a memorandum of understanding with Cuomo's office. United Online's NetZero also signed an agreement that deals with Usenet, the pre-Web collection of discussion groups.

Cuomo, a Democrat, is pitching these agreements as a way to reduce the amount of child porn on Usenet. His latest prepared statement: "I commend the companies for working with my office to aggressively eradicate online child pornography and strongly urge all outstanding Internet service providers across New York and the nation to get on board." His Web site even offers a handy "ISP complaint form."

But in reality, Cuomo's pressure tactics have misfired. They led Time Warner Cable to pull the plug on some 100,000 Usenet discussion groups, including such hotbeds of illicit content as talk.politics and misc.activism.progressive. Verizon Communications deleted such unlawful discussion groups as us.military, ny.politics, alt.society.labor-unions, and alt.politics.democrats. AT&T and Time Warner Cable have taken similar steps.

It's not clear what the memorandum of understanding involves, and whether it would be legally enforceable (by either party) and in which circumstances. Complicating matters is that Comcast doesn't actually run its own Usenet servers. It outsources that to a third-party provider based in Austin, Texas, called Giganews, which previously confirmed to us that it had been contacted by Cuomo's office.

Comcast told us the agreement did not involve writing a handsome check to Cuomo, as Verizon, Time Warner Cable, and Sprint did. But it still has not answered questions we posed on Tuesday evening about what the agreement means, what will be done differently, and what Usenet newsgroups will be removed.

Federal regulators are planning to meet on Friday and declare that Comcast violated Net neutrality principles when throttling BitTorrent traffic on its network. This would become the U.S. government's first Net neutrality-related ruling.

There's just one problem with the Federal Communications Commission's plans: They may not be quite, well, legal. In other words, the FCC may not actually have the authority to make its ruling stick.

In 2006, Congress rejected five different bills, backed by groups including Google, Amazon.com, Free Press, and Public Knowledge, that would have 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.

It's true that the FCC adopted a set of principles in August 2005 saying "consumers are entitled to run applications and use services of their choice." But the principles also permit providers' "reasonable network management" and, confusingly, the FCC admitted on the day of their adoption that the guidelines "are not enforceable."

Friday's scheduled vote at the FCC stems from a request submitted in November by Free Press and its political allies, including some Yale, Harvard, and Stanford University law school faculty. They claim the FCC has the authority--under existing law--to "impose additional regulations" declaring Comcast's throttling to be illegal.

"Should Comcast finally be held accountable for its illegal practices, it will be the direct result of historic public involvement in this precedent-setting debate," said Marvin Ammori, general counsel of Free Press, which is funded in part by George Soros' Open Society Institute. "We look forward to seeing the order, and commend the FCC for conducting such a thorough investigation on behalf of Internet users everywhere."

FCC Chairman Kevin Martin, a Republican and occasionally the swing vote at the commission, is reported to be in favor of ruling against Comcast. It's no stretch to say the FCC's two Democrats, Michael Copps and Jonathan Adelstein, will join him. That leaves the remaining two Republican commissioners dissenting; commissioner Robert McDowell wrote an op-ed article published in the Washington Post on Monday that the Internet would "die of clogged arteries if network owners had to seek government permission before serving their customers by managing surges of information flow."

Lacking authority
Lack of legal authority hasn't stopped the FCC before. In 2005, a federal appeals court in Washington, D.C., ruled the agency did not have the authority to draft its so-called broadcast flag rule. Last week, a federal appeals court in Pennsylvania ruled the FCC's sanctions against CBS, which publishes CNET News, in the Janet Jackson Wardrobe Malfunction Incident amounted to an "arbitrary and capricious change of policy."

(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.)

For its part, Comcast has been adamant that it would be unlawful for the FCC to hand down a cease-and-desist order related to BitTorrent. Its filings with the agency read like legal briefs, and amount to an unsubtle promise to file a lawsuit if the FCC proceeds. One, for instance, warns the FCC that any ruling "clearly would be subject to close and skeptical judicial review."

Comcast spokeswoman Sena Fitzmaurice on Monday declined to say whether her employer would sue, saying the text of any order has not been released and it's not clear what authority the FCC would invoke.

But she offered what amounts to a strong hint that a lawsuit is in the works: "Does that legal standard set precedent for the future about other legal decisions? If you let a statement saying they have ancillary authority potentially go unchallenged, does that have further implications?" (Comcast has hired Helgi Walker, a partner at the law firm of Wiley Rein and a former associate counsel to President Bush on FCC matters, to represent it before the commission.)

For Comcast, there are some risks to a court challenge. For now, at least, the vagueness of the FCC's Net neutrality principles can be useful to both sides: broadband providers and Free Press can point to them as supporting their respective positions. If a court declares them to be unlawful, the ruling could invite more specific regulations or explicit legislation from Congress.

Coming clean
In March, Comcast announced a kind of detente with BitTorrent, saying it would move toward a "capacity management technique that is protocol agnostic." 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. That also handed competitors like AT&T a perfect opening to say that they don't throttle peer-to-peer traffic at all.

But even if Comcast was being less than forthcoming, it doesn't mean the FCC has the power to fine it or issue a cease-and-desist order. The U.S. Supreme Court ruled in another FCC case that "an agency literally has no power to act... unless and until Congress confers power upon it." And that doesn't seem to have happened here.

If FCC enforcement against Comcast is illegal, why would Chairman Martin call Friday's meeting? Only he knows for certain, but one explanation is that if the FCC is embarrassed when slapped down by a federal appeals court two years hence, Martin will have long since departed to a lucrative partnership at a law firm or private equity firm. (This is a customary exit path for FCC chairmen: Newton Minow went to Sidley Austin; William Kennard went to the Carlyle Group; James Quello went to Wiley Rein, named for ex-chairman Richard Wiley, where equity partners made an average of $4.4 million in 2006.)

Friday's ruling may also end up as a cautionary tale for AT&T and Verizon, which as recently as last month seemed to be egging on the FCC to take action against their cable industry rival. But the same activists that have targeted Comcast before the FCC no doubt realize that AT&T's terms of service limit "peer-to-peer applications"; Verizon Wireless flatly prohibits them; Verizon's Fios service blocks incoming port 80. Another term for those network management practices is "Net neutrality violations."