Is throttling of peer-to-peer traffic -- especially BitTorrent traffic -- on Comcast's cable Internet service "reasonable network management" or a breach of trust? That was the question at the Federal Communications Commission's hearing Monday in Cambridge, Mass.
The FCC met at Harvard Law School in response to petitions from a consortium of public-interest groups and Internet video company Vuze. The petitions accused Comcast of violating the FCC's four Internet policy principles, which boil down to allowing consumers to use the Internet without interference from service providers. An exception to the principles is "reasonable" network management and the hearing focused on whether Comcast's actions were reasonable.
By the end of the day, FCC Chairman Kevin Martin said he hadn't come to a conclusion, but he told reporters later, "One of the main concerns I have is that there wasn't a transparency to some of the network-management practices (Comcast) engaged in."
The highlight of the hearing, which included panels on policy and technology issues, was Martin's grilling of Comcast Executive Vice President David Cohen. Martin asked Cohen why Comcast thinks it "necessary to block" BitTorrent when customers "are acting within the constraints you sold them. ... Doesn't that undermine the arguments you're making?"
No, Cohen responded, "I don't think we're restraining the customers from using the service in accordance with the way we're selling it to them." He said Comcast gave subscribers fair notice of the practice in a FAQ on its Web site. "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," Cohen read from the notice.
Finding the Line
Is that sufficient notice to consumers and developers? No way, said Marvin Ammori, general counsel for Free Press, one of the groups that petitioned the FCC. "It's not clear when the high periods of congestion are, what they mean by delay, and if I were trying to design software to that ... I'm not sure how I'd do it," he told Martin.
Cohen emphasized a point Comcast has made since the Associated Press reported that the cable company was interfering with BitTorrent traffic. ""Comcast does not block any Web site, application or Web protocol, including peer-to-peer services, period," he said. "What we are doing is a limited form of network management objectively based upon an excessive bandwidth-consumptive protocol during limited periods of network congestion."
There seemed to be consensus that network operators are entitled to manage the traffic that flows across their networks, but the commissioners struggled with understanding when the line is crossed. "Where is the line between good discrimination and bad discrimination?" asked Commissioner Jonathan Adelstein.
How Much Is Too Much?
Comcast doesn't guarantee a certain level of service in exchange for customers' subscription fees, Cohen said, and thus it can't simply tell consumers if they use more than this, we'll cut you back. "We market ... that we provide a service up to a certain amount of speed, subject to the condition that the customer does not use a service in a way that would degrade other customers' services," he said.
David Clark, a senior research scientist at MIT and one of the Internet's early architects, said ISPs should be more transparent with their policies, but conceded it's hard to know how to draw the line. "If I had to quantify what constituted unacceptable congestion, it becomes a very contentious space," he said.
At the start of the hearing, Rep. Ed Markey, D-Mass., who has sponsored a net-neutrality bill in the U.S. House, warned the commissioners against allowing Comcast to continue the throttling practice. "Such intercession into a user's access to the Internet should not result in ... the transformation of BitTorrent into BitTrickle," he said. "That's a problematic result ... whether it is purposeful or purely circumstantial."