Bad News for Comcast: FCC Wants Network Management Info


The saga of Comcast and, by extension, all big ISPs, against the FCC and/or bandwidth hogs continues.


The latest twists, reported by IT Business Edge and elsewhere, are that Comcast will limit bandwidth for people it deems to have used too much for periods of 10 to 20 minutes and that the FCC has ordered the company to detail its network management practices and describe how they would be changed by year's end. The FCC Memorandum Opinion and Order and a Sidecut Reports post with the highlight are here and here, respectively.


This issue is getting more interesting as time goes by. Actually, several parallel issues are at play here: On one hand, ISPs have a legitimate right, even a responsibility, to run their networks in a manner that benefits the lion's share of their customers. The salient question is when this morphs into an unfair competitive advantage. Another question that will be played out over the long haul -- and, in questions of the nexus of regulatory, legal and legislative issues, long means long -- is whether the FCC can enforce its decisions on this topic. This all is part and parcel of Net neutrality, the umbrella term for the debate over the degree to which a carrier is entitled to control content on its network.


This post at CNET's Politics and Law blog, written before the FCC's August 1 ruling against Comcast, summarized the legal situation. Like a ref's call during a football game, what the FCC says isn't the last word on the subject:

For its part, Comcast has been adamant that it would be unlawful for the FCC to hand down a cease-and-desist order related to BitTorrent. Its filings with the agency read like legal briefs, and amount to an unsubtle promise to file a lawsuit if the FCC proceeds. One, for instance, warns the FCC that any ruling "clearly would be subject to close and skeptical judicial review."

This blithely written commentary at The Register doesn't consider the FCC's enforcement capabilities the most important issue. The blogger quotes a well-known telecom attorney who predicts that the FCC eventually will win in court because its control of Comcast is mandated by the Telecommunications Act of 1996.


The key, the poster says, is the FCC's order that Comcast provide detail on its methods. This will generate evidence in class actions suits on the issue of whether it lied to consumers about the services it delivered to them. Use of techniques to limit bandwidth while marketing services as unlimited may be found to be a no-no, regardless of the company's motives or any legitimate need for those tools.


There will be many more twists and turns in this slow-motion drama. The thing to remember is that this is a massively important topic. It goes far beyond whether Comcast has the right to make some bandwidth piggies sit in the corner for a few minutes or if the FCC can boss cable companies around. The real question is who is going to control the broadband network going forward.