Monday, August 04, 2008

Comcast Blocking Blocked; Cox Next?

In what is being widely touted as an historic decision the FCC has issued a ruling that that Comcast's did indeed illegally monitor customer connections and block specific protocols. They've been ordered to stop doing so, to submit details of what they have been doing, and to inform customers as to what it will do instead.

The small firestorm of comment on the web is a bit anticlimatic since FCC chair Martin made it clear more than a week prior to the ruling what the outcome would be but the ruling itself is bracing.

The most impressive thing about this event is the way the Commission talks; it says that Comcast was indeed blocking legal content, that the effect was anticompetitive and that Comcast had an economic motive to drive downloaded video off its network since it was in the business of selling video. Talking that way is the regulatory equivalent of dropping the bomb—a finding of motivated anticompetitive behavior triggers the possibility of truly draconian punishments.

Beyond letting Comcast know what it did wrong the Commission also acerbically dismissed Comcast's ways of justifying its behavior; in ways that are worth qouting at length, even though the original press release is even more dramatic:
The Commission concluded that Comcast’s network management practices discriminate among applications rather than treating all equally and are inconsistent with the concept of an open and accessible Internet...

The Commission also concluded that Comcast’s practices are not minimally intrusive, as the company claims, but rather are invasive and have significant effects...In essence, Comcast opens its customers’ mail because it wants to deliver mail not based on the address on the envelope but on the type of letter contained therein...

The Commission concluded that the end result of Comcast’s conduct was the blocking of Internet traffic, which had the effectof substantially impeding consumers’ ability to access the content and to use the applications of their choice...

The Commission rejected Comcast’s defense that its practice constitutes reasonable
network management. While Comcast claimed that it was motivated by a desire to combat network congestion, the Commission concluded that the company’s practices are ill-tailored to serve that goal for many reasons: they affect customers who are using little bandwidth simply because they are using a disfavored application; they are not employed only during times of the daywhen congestion is prevalent; the company’s equipment does not target only those neighborhoods suffering from congestion; and a customer may use an extraordinary amount of bandwidth during periods of network congestion and will be totally unaffected so long as he does not utilize an application disfavored by Comcast.

The Commission’s determination that Comcast was not engaging in reasonable network management is supported bythe overwhelming weight of expert testimony in the record...The Commission also concluded that the anticompetitive harms caused by Comcast’s conduct have been compounded by the company’s unacceptable failure to disclose its practices to consumers. Because Comcast did not provide its customers with notice of the fact that it interfered with customers’ use of peer-to-peer applications, customers had no way of knowing when Comcast was interfering with their connections. As a result, the Commission found that
many consumers experiencing difficulty using onlycertain applications would not place blame on Comcast, where it belonged, but rather on the applications themselves, thus further disadvantaging those applications in the competitive marketplace.
Bear in mind that this is the FCC saying this sort of stuff. The only place I've seen even similarly blunt langauge has been on the blogs of open network advocates who have bitterly complained of the mainstream media's "fair and balanced" reporting which lent credeence to Comcast's nonsensical claims that it wasn't "blocking" traffic and that it was only "managing" its network for the good of the little guy. Those same news outlets religously avoided noticing that the P2P protocols that Comcast blocked were almost always used to download video that competed with Comcast's cable and Pay Per View products. I hope that having the FCC, a body well know for sympathizing with the corporations it is supposed to regulate whenever possible, lash Comcast on all these points will result in better reporting—but I doubt it since the reporting on this ruling even now avoids repeating the most damning findings. It is really outrageous that the first most folks will hear this analysis is if they track it down themselves. Only the credulous report both sides of a story without noticing when one side is plainly flat-out lying. The FCC has reacted appropriately. Would that our media had half the common sense.

Cox
Here in Lafayette the question is whether Cox will take the hint and avoid the sort of public rebuke that Comcast has just experienced. As long-time readers will recall Lafayette Pro Fiber has long followed this story and noted that Comcast's silent partner has been, since the first days of the story, Cox Communications. Cox has been engaging in exactly the same sort of blocking for which Comcast has been censured. —In fact a large-scale German study revealed that only three companies in the world were engaging in this behavior: Comcast, Starhub in Singapore, and Cox. Comcast had the bad fortune to get caught a few weeks before Cox and the bad judgment to engage in a historonic and clearly deceptive defense of its practices while Cox mummered confusing, uninteresting remarks that nobody found qoutable. If they are as smart as that reaction indicates they'll wait a few weeks and issue a quiet press release saying that they don't admit anything but are interested in finding some (confusing) new techniques to manage their service. And then cc the FCC.

2 comments:

Anonymous said...

You do realize that the FCC doesn't really have any authority over the internet right? Nor do they really have any authority over how these companies wish to run their networks.

Show me where Congress has given the FCC the authority of internet policies?

I am not condoning what Comcast or Cox is or has done, but the FCC is simply good for nothing. And Martin, shesh this guy is simply paid spokesman for whoever pays the most.

I love how Martin says "We do not tell providers how to manage their networks." Humm... that seems to be what they are saying by the ruling against Comcast.

Oh and the next sentence is even better! "They might choose, for instance, to prioritize voice-over-IP calls." If you give one application priority over others you then have to tell your QoS rules to drop packets of the other non-prioritized traffic if they encroach on your prioritized traffic. This is called QoS, its called managing your network. As a network administrator its something I deal with almost daily. And sometimes users don't like the fact that their streaming radio or video is working that well because I have had to make decisions on prioritizing my traffic.

Martin's statements contradict the ruling, you can't have it both ways in my opinion.

Oh and I got the statements from here:

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-284286A2.pdf

John said...

Oh conveniently anonymous person,

Actually I don't realize that the FCC has "no authority" over the internet. Their ruling and the entire structure of petitions and and testimony that support it—including Comcast's—argue otherwise. I do realize that Comcast claims that this ruling goes to far--crucially in that it there hasn't actually been a ruling that they could adhere to. The authority of the FCC as a "regulatory" body with (perhaps too wide ranging for your taste or mine) powers that looks a whole like making law was, was in fact, granted by Congress in its charter and in various law since and has been extensively litigated. Mostly but not uniformly in favor of the FCC.

Much has been made in the blogosphere...and by some actual reporters who should be held to a higher standard...of Martin's supposed contradiction. Of course there is NO contradiction between establishing baseline regulatory rules about how commerce is to be conducted and not telling a business how, exactly, they are to meet that constraint. (You're not supposed to steal from your employer. The police don't try to tell you how NOT to do that.) I think what Martin is doing with the line you quote is trying to signal that he is not ruling out packet prioritization in situations like VOIP where dropped packets due to congestion really is noticeably detrimental to the product. The point, of course, is that this is NOT credibly the case in what Comcast did. Which, as the material I cited notes just plain couldn't be justified as having been about congestion at all.

Which brings us to Martin. Sure Martin is a kept man. His history at the FCC makes joining the consumer advocates on the panel very odd. Much has been made of his supposed political ambitions. Nah: What I worry about is that he's merely smarter than the other two tools. The Comcast case is every bit as ugly as the FCC finds that it is. The only rational explanation for the way they "managed" P2P is that they want to protect their video business and not lend their lines to competing internet downloads. (Go back and read the doc I link to...it really is compelling. And the evidence presented in the hearings even more so.)Anyone who's been watching can feel the ground shifting: the Comcast violation is just too egregious and just too obviously self-serving and far too clearly a tissue of lies to be allowed to represent the industry position.

If the FCC continues it toadying to the corporations in this instnace they run the very real danger of having Congress reassert its authority. Even if the Dems weren't in line to extend their control of that body the corporations would hate the idea. Even Republican voters hate the cable monopoly and if cable issues were available as political fighting points it would play to the populist in the race every time.

So I fear that Martin has not, in fact, seen the light (as evidenced by his gaping hole on VOIP above) but is simply smarter than his brethren and has been plainly told by the telcos to cut Comcast loose on this one: they've just done it stupidly. The consequence of Martins' "help" would be to put that mistake behind them and keep the spector of real regulation off their back at least a little longer.

PS: If readers want to read all the docs from all the commissioners, including Martin's, they should follow the second link in the post above.