FCC Finds Comcast’s Network Management Practices Violate FCC Policy

Author: Yuki Ide

According to the FCC’s Order, P2P applications such as BitTorrent have become increasingly popular in recent years and have developed into a competitive threat to Internet service providers such as Comcast. Meanwhile, in 2007, mounting complaints by Comcast consumers that they were unable to use P2P applications on Comcast’s network led to investigations by the Associated Press and other interested organizations. The Electronic Frontier Foundation, for instance, examined Comcast’s practices and concluded that “Comcast was selectively targeting customers who uploaded files using BitTorrent and other P2P [platforms].” On November 1, 2007, Free Press filed a complaint with the FCC and asked the Commission for a declaratory ruling that Comcast’s practices violated the Commission’s Internet Policy Statement.

Upon review, the FCC concluded that Comcast’s practices violated its Statement. The Commission found that Comcast’s practice of selectively block P2P applications was not “minimally intrusive” but outright discriminatory, in contravention of the federal policy of “promot[ing] the continued development of the Internet,” and also discourages the development of new technologies. Moreover, the FCC found that Comcast’s action will pose significant risks of anticompetitive abuse, and declared that for its action to qualify as reasonable network management, “it should further a critically important interest and be narrowly or carefully tailored to serve that interest.” The FCC also pointed out that Comcast did not provide a description of its network management practices to its subscribers.

For these reasons, the FCC ordered Comcast to cease its practice of selectively blocking P2P activity. In addition, the Commission ordered Comcast to (1) disclose to the Commission the precise contours of its network management practices, (2) submit a compliance plan to the Commission with interim benchmarks that describes how Comcast intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year, and (3) disclose to the Commission and the public the details of the network management practices that it intends to deploy following the termination of its current practices. Comcast must comply with the FCC’s Order within 30 days.

In response to Comcast’s argument that the FCC lacked statutory authority to enforce its Internet Policy Statement, the Commission cited to the Supreme Court’s conclusion in National Cable & Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005), that the “Commission has jurisdiction to impose additional regulatory obligations [on information service providers] under its Title I ancillary jurisdiction to regulate interstate and foreign communications…” and that “ the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction.”

Comcast has filed an appeal challenging the FCC’s authority to enforce “network neutrality.” Comcast executive vice president said in a statement that Comcast “filed this appeal in order to protect [its] legal rights and to challenge the basis on which the commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules.” Comcast’s appeal is pending before the United States Court of Appeals for the D.C. Circuit.