Comcast has told the chairman of US Federal Communications Commission that he has no legal right to prevent the company from busting BitTorrents.
With a recent FCC filing (PDF), Comcast executive vice president David Cohen informed Chairman Kevin Martin that even if the ISP is guilty of violating the commission's Internet Policy Statement, the commission doesn't have the power to do anything about it. And from where we're sitting, it looks an awful lot like Cohen is threatening legal action if the commission says otherwise.
"The congressional policy and agency practice of relying on the marketplace instead of regulation to maximize consumer welfare has been proven by experience (including the Comcast customer experience) to be enormously successful," Cohen says. "Bearing these facts in mind should obviate the need for the Commission to test its legal authority."
If you're a Comcast customer, we would like to know if your experience has proven that the ISP marketplace maximizes consumer welfare. After all, in many areas of the US, the marketplace amounts to no more than one or two options. Keep in mind, however, that if you contradict Comcast, you will be contradicting the "facts."
Members of the SaveTheInternet.com coalition contradicted the "facts" back in Nov., when they first urged the FCC to crack down on Comcast's treatment of BitTorrent traffic. Independent tests have shown that the ISP is preventing users from "seeding" BitTorrents and other P2P files. When one machine downloads a file and promptly attempts to upload that file to another machine, in certain cases, Comcast sends out a duped "reset flag" that breaks this peer-to-peer connection.
The SaveTheInternets are adamant that in doing so, Comcast has run afoul of the FCC's 2005 Internet Policy Statement, which says that US Internet users are "entitled to run applications and use services of their choice."
At first, Comcast countered this argument by pointing out that the Policy Statement allows for "reasonable network management" and that it's BitTorrent throttling was nothing less than reasonable. And some experts have agreed. But now the company is saying it doesn't really matter whether the practice is reasonable or not.
"There are several reasons why the Commission cannot lawfully issue an injunction against Comcast with regard to the provision of Internet services, even were it to conclude - contrary to what we have demonstrated in our previous communications with the Commission - that Comcast's behavior is inconsistent with the Internet Policy Statement," reads David Cohen's FCC filing.
At one point, Cohen says "It is settled law that policy statements do not create binding legal obligations. Indeed, the Internet Policy Statement expressly disclaimed any such intent."
Meanwhile, the Policy Statement very plainly says that the FCC has the "jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner." But Cohen may have some sort of point. When the Policy Statement was unveiled, Chairman Martin did say that policy statements were not "enforceable documents."
Cohen also says that if the FCC enjoined Comcast, it would run afoul of its own 2002 Cable Modem Declaratory Ruling and Congress' 1946 Administrative Procedures Act. And he's adamant that an FCC fine is out of the question as well.
"For all these reasons, there is no basis upon which the Commission could lawfully adopt any sort of prospective injunction in the current setting. I might add that all of these reasons - plus others that we have previously detailed - would apply to any purported assessment of monetary forfeitures based on prior conduct."
But our favorite bit is where Cohen argues that Comcast is an open book. "We communicate appropriately with our customers," he insists.
We beg to differ. When tests from independent researcher Robb Topolski's first revealed that Comcast throttled BitTorrent traffic - many months ago - Comcast flatly denied the practice. And even in the face of an FCC probe, the ISP only half-admits what's happening.
What's more, when the FCC set up a hearing in Boston last month to determine what's going on, Comcast paid people to attend the meeting on its behalf.
If recent comments from Kevin Martin are any indication, he will crack down on Comcast - in large part because the company hasn't communicated appropriately with its customers. "A hallmark of what should be seen as a reasonable business practice is certainly whether or not the people engaging in that practice are willing to describe it publicly," he said.
Legal action here we come. ®