[Note: Here's the FCC News Release and statements from Commissioners Martin, Coops and Adelstein. The statements for Commissioners Tate and McDowell are not available yet (I hear that they are lengthy). I will post them when they are. Given the statement that Comcast issued after this action by the Commission, I suspect that this will be in some federal court real soon now. DLH]
<http://www.fcc.gov/comcast-nr-080108.pdf>
FOR IMMEDIATE RELEASE:
NEWS MEDIA CONTACTS: August 1, 2008 Clyde Ensslin, 202-418-0506 Email: Clyde.Ensslin@fcc.gov
Robert Kenny, 202-418-2668 Email: Robert.Kenny@fcc.gov
COMMISSION ORDERS COMCAST TO END DISCRIMINATORY NETWORK
MANAGEMENT PRACTICES
FCC Affirms Its Authority to Protect Vibrant and Open Internet
Washington, D.C. – Comcast Corp.’s management of its broadband Internet networks
contravenes federal policies that protect the vibrant and open nature of the Internet, the Federal
Communications Commission found today.
Ruling on a complaint by Free Press and Public Knowledge as well as a petition for
declaratory ruling, the Commission concluded that Comcast has unduly interfered with Internet
users’ right to access the lawful Internet content and to use the applications of their choice.
Specifically, the Commission found that Comcast had deployed equipment throughout its
network to monitor the content of its customers’ Internet connections and selectively block
specific types of connections known as peer-to-peer connections.
The Commission’s action today is the result of an exhaustive examination of conduct that
was first brought to light by Comcast subscribers who noticed that they had problems using peer-
to-peer applications, such as BitTorrent, over their Comcast broadband connections. When first
confronted with press reports about these difficulties, Comcast disclaimed any responsibility for
its customers’ problems. However, after tests conducted by the Associated Press and Electronic
Frontier Foundation suggested that Comcast was selectively interfering with attempts by
customers to share files online using peer-to-peer applications, Comcast changed its story and
admitted that it did target its subscribers’ peer-to-peer traffic for interference. The company
initially claimed that it did so only during periods of peak network congestion and of heavy
network traffic. Later, confronted with yet more evidence suggesting that interference was not
limited in this manner, Comcast recast its position yet again and admitted that it interferes with
peer-to-peer traffic regardless of the level of overall network congestion at the time and
regardless of the time of day. The Commission’s extensive investigation into this matter –which
included two public hearings, substantial input from experts, and thousands of comments from
companies, organizations, and the public at large – confirms that Comcast’s interference is far
more invasive and widespread than the company first conceded.
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. Indeed, the Commission noted that Comcast has an anticompetitive
motive to interfere with customers’ use of peer-to-peer applications. Such applications,
including those relying on BitTorrent, provide Internet users with the opportunity to view high-
quality video that they might otherwise watch (and pay for) on cable television. Such video
distribution poses a potential competitive threat to Comcast’s video-on-demand (“VOD”)
service.
The Commission also concluded that Comcast’s practices are not minimally intrusive, as
the company claims, but rather are invasive and have significant effects. The Commission
found that Comcast monitors its customers’ connections using deep packet inspection and then
determines how it will route some connections based not on their destinations but on their
contents. 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 also found that Comcast’s conduct affected Internet users on a widespread basis.
Indeed, Comcast may have interfered with up to three-quarters of all peer-to-peer connections in
certain communities.
The Commission concluded that the end result of Comcast’s conduct was the blocking of
Internet traffic, which had the effect of substantially impeding consumers’ ability to access the
content and to use the applications of their choice. The Commission noted that the record
contained substantial evidence that customers, among other things, were unable to share music,
watch video, or download software due to Comcast’s misconduct.
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
day when 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 by the overwhelming weight of expert testimony in the record. For
example, Professor David Reed of the Massachusetts Institute of Technology, widely respected
as one of the architects of the Internet, said that “[n]either Deep Packet Inspection nor RST
Injection” — Comcast uses both to manage its network — “are acceptable behavior.”
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 only certain 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.
The Commission also reiterated that its interest is in protecting consumers’ access to
lawful content. Blocking unlawful content such as child pornography or pirated music or video
would be consistent with federal Internet policy.
The Commission announced its intention to exercise its authority to oversee federal
Internet policy in adjudicating this and other disputes regarding discriminatory network
management practices with dispatch, and its commitment in retaining jurisdiction over this
matter to ensure compliance with a proscribed plan to bring Comcast’s discriminatory conduct to
an end.
Under the plan, within 30 days of release of the Order Comcast must:
• Disclose the details of its discriminatory network management practices to the
Commission
• Submit a compliance plan describing how it intends to stop these discriminatory
management practices by the end of the year
• Disclose to customers and the Commission the network management practices that
will replace current practices
To the extent that Comcast fails to comply with the steps set forth in the Order, interim
injunctive relief automatically will take effect requiring Comcast to suspend its discriminatory
network management practices and the matter will be set for hearing.
Action by the Commission, August 1, 2008, by Memorandum Opinion and Order (FCC
08-183). Chairman Martin, Commissioners Copps and Adelstein, with Commissioners Tate and
McDowell dissenting. Separate statements issued by Chairman Martin, Commissioners Copps,
Adelstein, Tate and McDowell.
Docket No.: 07-52
Wireline Competition Bureau Staff Contact: Marcus Maher at 202-418-1500
-FCC-
<http://www.fcc.gov/comcast-st-martin-080108.pdf>
PRESS STATEMENT OF CHAIRMAN KEVIN J. MARTIN
Re: Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband Industry
Practices, WC Docket No. 07-52
Would you be OK with the post office opening your mail, deciding they didn’t
want to bother delivering it, and hiding that fact by sending it back to you stamped
“address unknown – return to sender”? Or if they opened letters mailed to you, decided
that because the mail truck is full sometimes, letters to you could wait, and then hid both
that they read your letters and delayed them?
Unfortunately, that is exactly what Comcast was doing with their subscribers’
Internet traffic.
Last year, some broadband subscribers complained to the FCC that Comcast was
blocking and delaying their Internet traffic. Our investigation, and the findings of several
widely respected engineers, confirmed the complaints. Comcast was delaying
subscribers’ downloads and blocking their uploads. It was doing so 24/7, regardless of
the amount of congestion on the network or how small the file might be. Even worse,
Comcast was hiding that fact by making effected users think there was a problem with
their Internet connection or the application.
Today, the Commission tells Comcast to stop, and to disclose to its subscribers
how it is going to manage traffic on a going forward basis. We therefore take another
important step to ensure that all consumers have unfettered access to the Internet.
Over the past decade, the Internet has had a powerful impact on the economy and
on the lives of American citizens. Thanks in large part to the deregulatory approach the
Commission has employed, we have witnessed the fruits of increased innovation,
entrepreneurship, and competition that the Internet has helped deliver. As policymakers,
we have a duty to preserve and promote the vibrant and open character of the Internet
while maintaining infrastructure companies’ incentive to invest in providing faster
broadband to more people.
The framework we adopt today will enable us to achieve this balance, and will
send a message to the industry that bad actors will be punished.
We begin by affirming that the Commission can and will enforce the Internet
Principles. This should come as no surprise. Three years ago the Commission declared
that it would not hesitate to act if faced with evidence that a provider was violating the
principles. Last year the current Commission unanimously reiterated that we have “the
ability to adopt and enforce the net neutrality principles … announced in the Internet
Policy Statement.” In fact, we’ve said this several times, including specifically telling
Comcast in the 2006 Adelphia Order that the Commission would act on any complaints
that it received about blocking or degrading Internet content:
“If in the future evidence arises that any company is willfully
blocking or degrading Internet content, affected parties may file a
complaint with the Commission.”
In conducting such an analysis, we consider a variety of factors. The Commission
considers whether the network management practice is intended to distinguish between
legal and illegal activity. The Commission’s network principles only recognize and
protect user’s access to legal content. The sharing of illegal content, such as child
pornography or content that does not have the appropriate copyright, is not protected by
our principles. Similarly, applications that are intended to harm the network are not
protected.
The Commission also considers whether the network service provider adequately
disclosed its network management practices. A hallmark of whether something is
reasonable is whether an operator is willing to disclose fully and exactly what they are
doing. Consumers need proper disclosure so that they can make informed decisions
when purchasing broadband service.
Finally, if legal content is arbitrarily degraded or blocked, and the defense is
“network management,” the broadband operator must show that its network management
practice is reasonable. We will look at whether it furthers an important interest and is
carefully tailored to serve that interest. Also, the practice should be disclosed to
consumers so that they can make informed decisions when purchasing broadband service.
Applying this framework, we find that it was unreasonable for Comcast to
discriminate against particular Internet applications, including BitTorrent.
While Comcast claimed its intent was to manage congestion, they evidence told a
different story:
• Contrary to Comcast’s claims, they blocked customers who were using very
little bandwidth simply because they were using a disfavored application;
• Contrary to Comcast’s claims, they did not affect customers using an
extraordinary amount of bandwidth even during periods of peak network
congestion as long as he wasn’t using a disfavored application;
• Contrary to Comcast’s claims, they delayed and blocked customers using a
disfavored application even when there was no network congestion;
• Contrary to Comcast’s claims, the activity extended to regions much larger
than where it claimed congestion occurred.
In short, they were not simply managing their network; they had arbitrarily picked
an application and blocked their subscribers’ access to it.
Comcast’s lack of disclosure about its network management practices
compounded the harm. Customers that experience unexpected problems with their
connections may blame the connection or application. This is particularly troubling when
the application is used to provide services that compete with the broadband operator’s
own services. Indeed, when faced with a similar situation with Internet telephony, we
took quick action to stop a telecommunications carrier from blocking competitive VOIP
providers.
Consumers demand, and deserve, better.
Our action today is not about regulating the Internet. Indeed, I have consistently
opposed calls for legislation or rules to impose network neutrality. Like many other
policy makers and members of Congress, I have said such legislation or rules are
unnecessary, because the Commission already has the tools it needs to punish a bad actor.
Adopting broad regulations in this area could have unintended consequences that could
stifle technological innovation. By acting on the complaints that we receive, we are able
to deal with actual problems and avoid creating others.
That is what we do today. The specific practice Comcast was engaging in has
been roundly criticized and not defended by a single other broadband provider. If we
aren’t going to stop a company that is looking inside its subscribers’ communications
(reading the “packets” they send), blocking that communication when it uses a particular
application regardless of whether there is congestion on the network, hiding what it is
doing by making consumers think the problem is their own, and lying about it to the
public, what would we stop? Failure to act here would have reasonably led to the
conclusion that new legislation and rules are necessary.
We do not address pricing, unbundling, or other economic regulation.
We do not tell providers how to manage their networks. They might choose, for
instance, to prioritize voice-over-IP calls. In analyzing whether Comcast violated federal
policy when it blocked access to certain applications, we conduct a fact-specific inquiry
into whether the management practice they used was reasonable. Based on many
reasons, including the arbitrary nature of the blocking, the lack of relation to times of
congestion or size of files, and the manner in which they hid their conduct from their
subscribers, we conclude it was not.
We do not limit providers’ efforts to stop congestion. We do say providers should
disclose what they are doing to consumers.
We make clear that network operators can block any illegal content or
applications that are intended to harm the network. The Order makes clear, for instance,
that providers can block child pornography or pirated video and music. Indeed, blocking
illegal content could go a long way to reducing bandwidth congestion.
While concluding that the conduct at issue violates our policy was an obvious
step, our action today is nevertheless critically important.
I am pleased that Comcast has reached some marketplace agreements and has
committed to implement a new “protocol-agnostic” management technique by the end of
the year. And I note that we have decided not to issue a fine. But contrary to some
claims, these actions did not obviate the need for us to act today.
First, we need to establish the important precedent that we will stop the bad
actors. We also establish a clear framework for how we will conduct our fact-intensive
inquiries if situations arise in the future.
Second, we need to protect consumers’ access. While Comcast has said it would
stop the arbitrary blocking, consumers deserve to know that the commitment is backed up
by legal enforcement.
Third, particularly given the obfuscation Comcast engaged in to date, it is
important that we require Comcast to respond to many still-unanswered questions:
• What exactly do they mean by a “protocol agnostic” management technique?
• Will there be bandwidth limits?
• If so, what will they be?
• Will they be hourly? Monthly?
• How will consumers know if they are close to a limit?
• If a consumers exceeds a limit, is his traffic slowed? Is it terminated? Is his
service turned off?
The Commission needs to understand the answers. Perhaps more importantly,
Comcasts’ subscribers deserve to know the answers.
By applying the framework we adopt today, the Commission will remain vigilant
in protecting consumers’ access to content on the Internet. Subscribers should be able to
go where they want, when they want, and generally use the Internet in any legal means.
When providers engage in practices truly designed to manage congestion, not cripple a
potential competitive threat, they should not be afraid to disclose their practices to
consumers.
<http://www.fcc.gov/comcast-st-copps-080108.pdf>
STATEMENT OF COMMISSIONER MICHAEL J. COPPS, APPROVING
Re: Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications, File No. EB-08-
IH-1518; Broadband Industry Practices, Petition of Free Press et al. for
Declaratory Ruling that Degrading an Internet Application Violates the FCC’s
Internet Policy Statement and Does Not Meet an Exception for “Reasonable
Network Management,” WC Docket No. 07-52; Memorandum Opinion and
Order, FCC 08-183 (Aug. 1, 2008)
This is a landmark decision for the FCC—a meaningful stride forward on the road
to guaranteed openness of the Internet. It’s taken a while for us to get here, but that
doesn’t detract from the historic importance of what the Commission does today. We
recognize that protecting Internet openness is like protecting the Internet’s immune
system, safeguarding it from bugs and infections that could slow its circulation, make it
sick, maybe even kill it.
Let’s be clear about what today’s Order does and does not accomplish. We do
recognize that unreasonably impeding the performance of an Internet application (like
peer-to-peer file sharing)—and not just outright blocking a particular website or
program—violates the FCC’s Internet policies. We do require that Internet providers
inform their customers when they make important technical decisions that change how
the Internet works. And we do give consumers who feel their Internet experience is
being unreasonably interfered with a right to seek help at the Commission. We do not,
however, prohibit carriers from reasonably managing their networks. And we do not
prevent engineers—either now or in the future—from coming up with new and better
ways to serve their customers.
In short, today’s decision strikes a careful balance. The story of how we got here
is instructive. Back in 2003, before most people ever heard the words “network
neutrality,” I gave a speech suggesting that the Internet as we know it could be dying.
Some thought it was perhaps something of a controversial claim at the time. But it was
premised on my belief that if a few large companies controlled the on-ramp to the
Internet, they could distort the development of technology, opportunities for
entrepreneurs and the choices available to consumers. I predicted that technologies to
allow such interference were already appearing, with more to come. And I said we
should act then to guarantee the openness of the Net. At that time, the Commission was
more interested in re-categorizing telecommunications services as information services
and eliminating many of the social and economic responsibilities of broadband service
providers. I urged my colleagues to at least adopt an Internet Policy Statement that
contained the basic rights of Internet end-users to access lawful content, run applications
and services, connect devices to the network and enjoy the benefits of competition. They
did that and it was a good step forward, for sure—but the proof was always going to be in
the pudding.
2
Network operators assured us nothing untoward was going on, but it wasn’t long
before we heard rumblings that maybe things weren’t running so openly and smoothly.
Examples of alleged interference were cited. Then, in November 2007, leading public
interest organizations and advocates filed with the Commission a specific Complaint and
a Petition for a Declaratory Ruling. They alleged that one company, Comcast, was
degrading peer-to-peer protocols that consumers were utilizing to share large files such as
movies and television programs.
The FCC was suddenly at a crossroads. Down one path was a Commission
committed to preserve and honor the openness of the Internet by breathing life into our
Internet Policy Statement. Down the other road was a Commission that, while
celebrating the Internet, refused to apply its principles and sat idly by while broadband
providers amassed the power and technical ability to dictate where we can go and what
we can do on the Internet. Today we choose the open road.
We began by taking the allegations and our responsibility to foster an open
Internet seriously. Then we took the time to gather, analyze and assess the evidence. We
heard from the leading engineers and experts in the field and received 6,500 comments
from a broad array of interested parties. The Commission ventured beyond the Beltway
and conducted two en banc hearings that included numerous expert witnesses and
extensive opportunity for public testimony. This process allowed us to better understand
what in fact the case involved and who was impacted by the practices in question. We
did the requisite analysis and a majority today moves forward.
Here, Comcast deployed equipment using deep packet inspection to identify
peer-to-peer uploads. Comcast determined when to send reset packets to terminate a
user’s connection in order to manage its network. The practice limited consumers’ ability
to access the lawful Internet content of their choice. And, as the Commission correctly
concludes, it was discriminatory and not carefully tailored to address the company’s
concerns about network congestion. (In fact, it prevented peer-to-peer customers from
making uploads regardless of whether there was network congestion at that time.)
Further, Comcast’s level of disclosure to its customers was clearly inadequate. As the
Order finds, no one could reasonably have known, prior to filing of the Complaint, that
peer-to-peer protocols were being discriminated against on Comcast’s network.
The Communications Act, as amended, gives the Commission ample authority to
act on this Complaint, and today’s Order sets out in detail the legal framework for this
authority. I would also point out that the Commission is free to address these issues
through either adjudication or a rulemaking. Surely no one can credibly claim that this
process has not provided the parties ample opportunity to present their cases.
Let me emphasize again the cautious and well-considered approach the majority
takes in this proceeding about the future of the Internet. We recognize that network
architectures and network practices are fast-changing and complex. We understand that
Comcast and all the other Internet service providers have real network management
challenges to overcome. And we appreciate that establishing a rigid rule prohibiting all
3
discriminatory network practices would go too far. There are network management
practices that most experts agree are reasonable and that are important to the
development of new technologies and Internet services. I also emphasize that
discrimination is not per se wrong. It is unreasonable discrimination that is wrong.
Unreasonable discrimination flies in the face of the Internet’s genius and threatens the
most open, dynamic and opportunity-creating technology devised in modern times.
We know that the technological capacity to impede the openness of the Internet
already exists. It’s a slam dunk that as technology evolves, we will see new tools coming
online that could be used for purposes of unreasonable discrimination. We also
understand that some may see commercial opportunity in applying such technological
impediments. History tells us that when technical capacity and commercial incentive
exist side-by-side, it’s a good bet that someone will try to use them to their own
advantage. I’m not making a moral judgment here; it’s just the stuff of history.
So the trick is to find the fine line between reasonable management techniques
that allow the Net to flourish and unreasonable practices that distort and deny its
potential. I believe, and I have long advocated, a case-by-case analysis of the facts in
particular cases brought before the Commission, based on a clear policy of “reasonable
network management only.” Today’s Order follows this path. The standard set forth in
our decision is a careful balance that establishes a high threshold for demonstrating that a
discriminatory network management practice is reasonable, while recognizing that there
are times when such practices may indeed be both reasonable and necessary. In doing
this, we don’t hamstring technology. But at the same time we say to the public that there
is a place, the FCC, where you can come to have allegations of network neutrality
violations heard and acted upon.
My friend and colleague Commissioner McDowell published a thoughtful op-ed
on this topic in the Washington Post earlier this week. We may respectfully disagree on
some of it, but he was certainly correct that “regardless of what the ruling stipulates, the
issue of what constitutes appropriate Internet network management will be debated for
some time.” The question I have, though, is the same as it was five years ago. Will the
Internet evolve out in the open, via standards groups, and with consumers empowered to
utilize the tremendous wonders of the dynamic Internet, and with all stakeholders having
input into how the future of this technology will evolve? Or will network operators bring
the Internet under their control for their own purposes—which may not always be the
public’s purposes? Will network operators deal with legitimate network problems in a
way that is sensitive to effects on the rest of the Internet? Or will they be permitted to
maximize their own interests? Until the FCC opened this inquiry, important decisions
about the future of the Internet were being made in a black box where the American
people had precious little opportunity to peek. After today they will hopefully be able to
see things in a little brighter light.
It is brighter because we have made a strong statement—based upon the four
principles and rooted in our authority under the Communications Act—that network
operators must not manage traffic in an unreasonably discriminatory manner. As a
practical matter, we are moving closer to taking a step I have long called for: to expressly
incorporate a fifth principle of non-discrimination into our existing Internet Policy
Statement.
While today’s Order represents important movement forward, it is not a full
substitute for the fifth principle that I believe we must adopt. A clearly-stated
commitment of non-discrimination would make clear that the Commission is not having a
one-night stand with net neutrality, but an affair of the heart and a commitment for life.
That’s what something so precious as this technology deserves. A fifth principle will
provide the needed reminder to all—long after the details of this case become blurry
history—that the Commission’s policy of network openness is ongoing and its remedies
are always available. It’s a pretty safe bet there will be other complaints about non-
discrimination coming to the Commission. A fifth principle would reassure those
bringing such complaints that they will receive the same kind of Commission attention
that the Comcast complainants received. A fifth principle should also, in my opinion,
apply to wireless as well as to wireline networks. In sum, formal Commission adoption
of a fifth principle of Internet openness would proclaim and sustain Internet users’ right
to all the freedom that network openness provides.
Mr. Chairman, thank you for your leadership on this matter. Thanks to the
Bureau and to our Office of General Counsel for their good diligence, thanks to my
colleagues for working so hard on this, and thanks to the many interested stakeholders
who provided information to us. I look forward to working with my colleagues, with the
many Members of Congress who have expressed interest in this issue, and—most of all—
with the users and innovators of the Net as together we work to unlock its vast potential.
<http://www.fcc.gov/comcast-st-adelstein-080108.pdf>
STATEMENT OF COMMISSIONER JONATHAN S. ADELSTEIN
Re: Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation
for Secretly Degrading Peer-to-Peer Applications, Broadband Industry Practices;
Petition of Free Press et al. for Declaratory Ruling that Degrading an Internet
Application Violates the FCC’s Internet Policy Statement and Does Not Meet an
Exception for “Reasonable Network Management”, Memorandum Opinion and Order,
File No. EB-08-IH-1518, WC Docket No. 07-52 (Aug. 1, 2008).
Three years ago, the Commission adopted its Internet Policy Statement,1 articulating
enduring principles to encourage broadband deployment and preserve the open and
interconnected nature of the Internet. Today, I am pleased that we build on that critical step with
this landmark decision to enforce Federal law and the principles behind the Internet Policy
Statement. I am confident that today’s decision will reassure consumers that they will continue
to enjoy freedom on the Internet.
Consumers have come to expect — and will continue to demand — the open and neutral
character that has always been the hallmark of the Internet. Broadband is redefining many
aspects of the way we live. In an age when traditional media markets are dominated by a
handful of giant conglomerates, there is optimism about the rise of broadband as an outlet for
creative expression and democracy. The Internet can restore decentralized and entrepreneurial
voices to the media landscape that are reflective of the best aspects of the American tradition.
This Order is a vital step towards maintaining the potential and promise that the Internet holds
for enriching our economic, cultural and social well-being.
This decision is seminal because, for the first time, we interpret the specific provisions of
the Internet Policy Statement and follow through on our repeated promises to act on allegations
of misconduct.2 At the same time, it is also a narrow decision, grounded firmly in the facts of the
case before us. To that point, rarely has this Commission conducted such intensive fact-finding.
We have witnessed nine months of filings and two hearings to glean testimony from providers,
1
Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of Regulatory
Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand
Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review —
Review of Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the
Internet Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Cable Facilities, CC Docket Nos. 02-33, 01-337, 98-10, 95-
20, GN Docket No. 00-185, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986 (2005) (Internet Policy
Statement).
2
See,e.g., Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities; Universal
Service Obligations of Broadband Providers; Review of Regulatory Requirements for Incumbent LEC Broadband
Telecommunications Services; Computer III Further Remand Proceedings: Bell Operating Company Provision of
Enhanced Services; 1998 Biennial Regulatory Review — Review of Computer III and ONA Safeguards and
Requirements; Conditional Petition of the Verizon Telephone Companies for Forbearance Under 47 U.S.C. § 160(c)
with regard to Broadband Services Provided via Fiber to the Premises; Petition of the Verizon Telephone
Companies for Declaratory Ruling or, Alternatively, for Interim Waiver with Regard to Broadband Services
Provided via Fiber to the Premises; Consumer Protection in the Broadband Era, WC Docket No. 04-242, 05-271,
CC Docket Nos. 95-20, 98-10, 01-337, 02-33, 20 FCC Rcd 14853 (2005) (Wireline Broadband Internet Access
Order).
2
legal experts, engineers, entrepreneurs, scholars, consumer advocates, and many others. We
have heard from thousands of individual consumers who have filed comments with us.
A careful review of the record before us leads inexorably to the conclusion that there has
been a violation of Federal Internet policy. The actions in question had the clear effect of
impeding consumers’ ability to use particular file sharing applications. This Order takes the next
step of determining whether this approach fits within the Internet Policy Statement’s provision
for “reasonable network management,” and rightly concludes that it is not sufficiently targeted to
fit that exception.
In reaching this conclusion, I appreciate the challenges that providers face in developing
reasonable network management policies. Through meetings with many providers, I have heard
concern about the impact of peer-to-peer applications on their networks. The Order
acknowledges that broadband providers will need to continue to manage their networks. It also
acknowledges that different approaches may be appropriate for different technologies.
Yet, the record here shows Comcast’s approach to be over-inclusive and ill targeted to
the purported goal.3 I found particularly compelling the wide, even if not unanimous, consensus
among network engineers that these actions strayed from accepted Internet standards and norms.
Moreover, the problem was compounded by Comcast’s lack of adequate disclosure policies and
the inaccurate response to initial public questions. Considering all the factors, and balancing the
competing goals set out in the Internet Policy Statement, the Commission appropriately finds the
conduct to be unreasonable.
Going forward, this decision sets out a marker, making clear to providers that
discriminatory network management practices must be carefully tailored and not unreasonable.
As providers craft their network management practices, the Order sends a strong signal about the
importance of engaging industry standard setting bodies, such as the Internet Engineering Task
Force, the Internet Architecture Board, and the Internet Society, which offer the best forum for
resolving network management issues. It is certainly preferable for facilities-based providers
and applications providers to work collaboratively, in an open and transparent manner, without
the need for governmental intervention. To the extent that engineers can work out these issues
among themselves, it obviates the need for Commission action. I am pleased such an effort is
now underway among these engineering bodies to tackle the issues raised by peer-to-peer traffic,
and that Comcast is an active participant in those discussions. The Order makes clear, though,
that the Commission will not abdicate its role in preserving and promoting the open and
interconnected nature of the Internet. That open platform has been the basis for unprecedented
innovation and I am confident that the approach we take today will, in the end, lead to the
greatest opportunities for continued innovation.
We have heard concerns about the Commission’s legal authority to act in this case and
about the procedural choice of a legal vehicle. Having carefully reviewed the legal arguments, I
conclude that the Commission is on solid footing. Our analysis starts with the strong finding of
the Supreme Court which, in upholding the FCC’s very decision to adopt a looser regulatory
3
I note that while the Order describes several alternatives that may be better tailored to meet Comcast’s purported
goal, it stops short of specifically endorsing any particular approach. In this respect, I withhold judgment on the
impact of such practices on consumers.
3
framework for broadband Internet access, observed that “the Commission has jurisdiction to
impose additional obligations on [information service providers] under its Title I ancillary
jurisdiction to regulate interstate and foreign communications….”4 Following this direction from
the Supreme Court, the Order sets out the Commission’s legal authority under Title I of the Act,
explaining that preventing unreasonable network discrimination directly furthers the goal of
making broadband Internet access both “rapid” and “efficient.”
The Order also includes a detailed and well-reasoned analysis of our considerable
additional legal authority for this decision. Notably, the Order is firmly based on the
Congressional policies set forth in Section 230 of the Act. Section 230 states that it is the
“policy of the United States” to “promote the continued development of the Internet” and to
“encourage the development of technologies which maximize user control over what information
is received by individuals . . . who use the Internet….”5 Indeed, the Commission directly
advanced these very statutory goals in adopting the Internet Policy Statement and confirming
that “consumers are entitled to access the lawful Internet content of their choice” and to “run
applications and use services of their choice.” Were there any doubt, the Order also finds that
resolving this complaint is ancillary to our authority under Sections 201, 256, 257, 601, and 706
of the Act.
As the Order correctly concludes, taking action against discriminatory practices advances
federal law by encouraging the efficiency of the public Internet, ensuring reasonable charges,
and promoting competition, pursuant to Section 1. It encourages the deployment of advanced
services, pursuant to Section 706. It ensures the reasonableness of charges incurred by
preventing providers from shifting costs to customers who purchase DSL as a common carrier
service, pursuant to Section 201. It promotes the flow of information across public
telecommunications networks, pursuant to Section 256. It eliminates barriers to entry for
entrepreneurs, pursuant to Section 257. And, it improves individuals’ ability to access a diverse
array of content over the Internet, pursuant to Sections 257 and 601.
Having determined that the Commission has more than adequate statutory authority to
address this issue, we have clear discretion about whether to act through rulemaking or
adjudication.6 Recent Commission practices, and my clear preference, would have been to
address this issue through the adoption of rules. Although I have urged the Commission to adopt
rules to address concerns about network discrimination, the Commission’s decision to resolve
this case through adjudication rests on firm legal ground. It is consistent with the Commission’s
long history in which we have often issued major policy decisions in the process of
adjudications, as have other Federal agencies.
More recently, the Commission has issued repeated statements on this issue. For
example, in the Wireline Broadband Internet Access Order the Commission made clear that
“[s]hould we see evidence that providers of telecommunications for Internet access of IP-enabled
services are violating these principles, we will not hesitate to address that conduct.”7 Similarly,
4
National Cable & Telecomms. Ass’n v. Brand X Internet Services, 545 U.S. 967, 996 (2005).
5
47 U.S.C. § 230(b)(1), (3).
6
See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (Chenery); NLRB v. Bell Aerospace Co., 416 U.S. 267, 292
(1974).
7
Wireline Broadband Internet Access Order, 20 FCC Rcd at 14907, para. 96.
the Commission in the Comcast-Adelphia-Time Warner Merger Order specifically warned the
applicants – including the provider subject to this action — that “[i]f in the future evidence arises
that any company is willfully blocking or degrading Internet content, affected parties may file a
complaint with the Commission.”8
In many ways, today’s approach should ameliorate the concerns of critics who have
argued that protecting Internet freedom will lead to overbroad mandates that cannot anticipate
changes in technology. First, it makes clear that the protections of the Internet Policy Statement
extend only to lawful content; hence, this Order does nothing to prevent providers from, for
example, restricting access to child pornography or content that violates copyright law. Second,
here we limit our findings to the narrow issues before us. Third, we choose a path that preserves
the Commission’s flexibility to consider alterative approaches and technologies. Even many
opponents of legislation and rules in this area have supported a case-by-case approach like the
one adopted today. Finally, through this adjudication, we have followed a thorough and open
process: seeking comment from all parties, conducting open hearings, gathering information and
analysis from all sides. Although I support taking this action, I do appreciate my colleagues’
willingness to craft this item in a way that preserves the Commission’s ability to adopt rules at a
later date, which was critical to my support of the item.
It is apparent that some parties want the Commission to have no role at all. Such an
approach, however, is not consistent with Federal law and Internet policy and would abdicate our
critical role in fulfilling Congress’ objectives. As this Order acknowledges, we must make it a
priority to ensure that the Internet remains open and that the broadband market remains
competitive.
For all these reasons, I approve this Order.
Finally, I would like to thank the Office of General Counsel and the staffs of our
Enforcement and Wireline Competition Bureaus for their hard work in developing this case and
bolstering our legal analysis. As the process went on, this Order improved greatly. And I
appreciate the input of the many citizens who attended and participated in our public hearings on
this issue. The level of participation was remarkable and fitting for an issue of this importance.
8
Applications for Consent to the Assignment and/or Transfer of Control of Licenses, Adelphia Communications
Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner Cable Inc. (Subsidiaries),
Assignees, Adelphia Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors and
Transferors, to Comcast Corporation (Subsidiaries), Assignees and Transferees, Comcast Corporation, Transferor,
to Time Warner Inc., Transferee, Time Warner Inc., Transferor, to Comcast Corporation, Transferee, MB Docket
No. 05-192, Memorandum Opinion and Order, 21 FCC Rcd 8203, 8298, para. 220 (2006) (Adelphia/Time
Warner/Comcast Order). See also Broadband Industry Practices, WC Docket No. 07-52, Notice of Inquiry, 22
FCC Rcd 7894, 7896, para. 4 (2007) (Broadband Industry Practices Notice) (concluding that “[t]he Commission,
under Title I of the Communications Act, has the ability to adopt and enforce the net neutrality principles it
announced in the Internet Policy Statement”).
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