FCC Chairman Seeks to End Comcast's Delay of File Sharing

FCC Chairman Kevin J. Martin will seek a commission vote Aug. 1.
FCC Chairman Kevin J. Martin will seek a commission vote Aug. 1. (By Katherine Frey -- The Washington Post)
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By Cecilia Kang
Washington Post Staff Writer
Saturday, July 12, 2008

Federal Communications Commission Chairman Kevin J. Martin said yesterday he would seek to stop Comcast from its practice of slowing Internet access of users sharing large files, but he won't levy a fine against the cable service provider.

The nation's chief telecommunications regulator said in a news conference that the cable operator failed to engage in "reasonable" management of its network and that he would seek support from the other four commissioners to stop the company from its practice of delaying some direct exchanges of video and other files between users on its network. The commission will vote on Martin's proposal at its Aug. 1 meeting.

Martin said he would not, however, seek to levy a fine because the priority of his order was to stop Comcast's practices.

He also dismissed the need for a new law or agency rule that would clarify the FCC's ability to regulate Internet service providers. Rep. Edward J. Markey (D-Mass.), chairman of the subcommittee on the Internet and telecommunications, introduced a bill that would strengthen rules to prevent cable and telecommunications companies from interfering with traffic over their networks.

"I don't support additional legislation because I think we have authority," Martin said. "You can't limit consumers that way."

Comcast has argued that its practices are reasonable and that the company delayed only certain traffic by the heaviest users who were gobbling up bandwidth on their shared network and degrading service for other Internet users.

The cable provider has also questioned whether the FCC even has a say on the issue.

"Network management has never been defined, and they are now saying, 'We are defining it now and you violated it,' " said Sena Fitzmaurice, a Comcast spokeswoman.

Public interest groups, however, hailed Martin's proposal, saying it would help stave off future blocking or degrading of Internet traffic by telecommunications and cable service providers.

"What this means is that the Internet is the first mass medium with a legal guaranteed access for anybody," said Ben Scott, head of policy for public interest group Free Press, which filed the initial complaint against Comcast for delaying traffic for those using direct file-sharing application BitTorrent. "This is a precedent-setting moment."

Analysts predicted that the commission would adopt Martin's proposal. Democratic Commissioners Michael J. Copps and Jonathan Adelstein didn't comment yesterday on the order, but both have advocated for open Internet policies, known as net neutrality, that would prevent network operators from blocking or delaying content.

"We believe the order, which we think will be favored by an FCC majority, will be negative for Comcast and set some precedents that could trouble other cable and even telecom broadband providers," analysts Blair Levin and Rebecca Arbogast wrote in a report for investment banking firm Stifel Nicolaus.

Comcast said that it is working to phase out its current practice of delaying certain uploads of Internet content. By the end of the year, the company said it would instead charge more for its heaviest users of Internet bandwidth, regardless of what applications they are using on the network. Comcast is testing the new approach in four cities.

Time Warner Cable, meanwhile, is exploring a new method of charging customers more for larger volumes of data and faster Internet access. The metered-billing test, which the company compared to cellphone billing structures that charge extra for those who go over their minutes, is being done in Beaumont, Tex. The company said its approach allows customers to choose plans that fit their needs.

Fitzmaurice argued that the FCC can't act on the 2005 statement of principles it drew up for how Internet service providers can manage their networks because the statement provides guidelines, not actual rules by the agency.

"The reason why you can't do enforcement on the principles alone is that they aren't rules, and they didn't go through the rulemaking process that is required to make regulation," Fitzmaurice said. "But we had no way of knowing before."

Such differing interpretations of those principals point to the need for clearer rules or the adoption of new broadband network management laws, said Public Knowledge, a public interest group. The proposal against Comcast shouldn't be limited to the specific compliant against the company, the group said.

"Whether blocking traffic or collecting data without customers' knowledge, [internet service providers] must know that they cannot impose themselves between consumers and consumers' online activities," said Gigi Sohn, president of Public Knowledge.

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