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FCC Head Says Action Possible on Web Limits

By Cecilia Kang
Washington Post Staff Writer
Tuesday, February 26, 2008

The chairman of the Federal Communications Commission yesterday sharply questioned Internet service providers who control consumers' Web access over their networks, and suggested the agency could intervene against the practice.

Kevin J. Martin made his remarks at an unusual off-site hearing to address complaints that cable provider Comcast restricts the flow of content -- such as video and music clips -- through file-sharing service BitTorrent. Rep. Edward J. Markey (D-Mass.), chairman of the House Energy and Commerce subcommittee on telecommunications and the Internet and a proponent of so-called net neutrality rules barring online traffic controls, offered opening remarks. "While carriers will assert the need to manage networks in their current state of evolution, we need to remember that Internet freedoms are most properly thought of as consumer-centric," he said.

The hearing, held at Harvard University, pit Comcast and DSL provider Verizon against legal scholars and public interest advocates who have pushed for open-Internet rules.

The issue is among the most hotly debated in technology. Comcast and other service-providers say they must be able to control the flow of information over their networks in order to ensure quality service and to protect their multi-billion dollar investments. Proponents of openness rules said Comcast's admission that it controls its own network unfairly restricts what users can do online.

"These are very significant issues, and we don't take those allegations lightly," Martin said in opening remarks. "The commission is ready, willing and able to step in and correct any practices that are ongoing today."

Industry watchers said the chairman's comments were his strongest yet against the carriers. The prospect of punishment for those who violate the FCC's 2005 policy statement safeguarding net neutrality could pave the way for legislative action, some analysts said. With the backing of Martin, a Republican, the FCC's two Democratic commissioners -- both supporters of net neutrality -- would have the majority.

"Martin has never had a clearly elucidated position on this, but we're seeing what Martin thinks now and he has the swing vote on this," said Tim Wu, a professor of law at Columbia University, following his testimony at the hearing. "He thinks that it's a consumer rights issue; whether that is a principle for the ages or principle for the case we don't know, but he certainly sent a message."

Comcast yesterday defended its actions, drawing a distinction between blocking content and simply delaying traffic on its network when particularly heavy users of the Internet use more than their share of network capacity and slow down service for all its users. Such network management is used by all service providers to protect consumers from spam and spyware, the company said.

"America has wisely relied on market forces," David Cohen, executive vice president of public policy for Comcast, said in his testimony. He encouraged the government to continue its "extremely light regulatory touch" with the issue, an approach he said has resulted in innovation and more than $110 billion in investments into broadband networks.

One of the key points of debate centers on possible interpretations of the FCC's existing policy statement on net neutrality, issued in 2005. It prohibits operators from blocking applications, but left the door open to interpretation in a footnote allowing an exemption for "reasonable management."

While Comcast argues that this justifies its actions, public advocacy groups say allowing network management is tantamount to online discrimination.

Marvin Ammori, general counsel for the public interest group Free Press, said that by slowing down traffic, Comcast is trying to quash competition for its Video on Demand service.

"This episode is just the tip of the iceberg," Ammori said in his testimony. Any action against Comcast would set an important precedent on net neutrality, he said.

Observers note that the complaints against Comcast are complicated technically and theoretically, which could prevent the agency from making a timely decision. Unlike the commission's action against Internet service provider Madison River for blocking voice application Vonage in 2004, the case is not clear-cut, analysts said.

"This is going to be a long simmering burn," said Jessica Zufolo, an analyst at Medley Global Advisors. "When you look at all the issues pending at the FCC, one could argue that network management issues and selecting an enforcement mechanism would not lend itself to going fast track. . . . From the chairman's perspective, he has tried to provide an impression of interest and concern that may buy a lot of good will for him on this issue."

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