• by Wendy Davis  @wendyndavis, November 29, 2010

A modem manufacturer is accusing Comcast of violating the Federal Communications Commission's net neutrality principles by recently implementing rigorous and unnecessary testing standards that effectively limit consumers' ability to purchase cable modems from retail outlets.

"Comcast, the nation's largest cable operator and provider of broadband Internet access service, has flagrantly violated the Commission's rules by infringing subscribers' right to attach cable modems of their choice to Comcast's network," Zoom Telephonics alleges in a complaint filed with the FCC on Monday afternoon.

Zoom alleges that Comcast earlier this year began requiring that cable modems attached to its network first pass burdensome tests. The new "testing regime contains a host of unreasonable, irrelevant, time-consuming, and costly requirements that curtail the availability of cable modems at retail outlets and thereby encourages subscribers to lease or rent cable modems directly from Comcast," Zoom alleges.

The new tests involve matters like "a modem's weight, labeling, and packaging as well as its physical appearance following the application of various substances, such as waxes," the complaint alleges. "They also require a cable modem to suffer no degradation in performance at temperatures far in above those generally found in the United States and well above the requirement for electronics equipment such as an iPad or personal computer," Zoom adds.

Zoom attorney Matthew Berry says that Comcast's 39% market share makes it unlikely that retail outlets will carry Zoom devices unless Comcast grants approval. "If this testing regime is allowed to stand, you're going to see the number of cable modems available in retail stores like Best Buy and Staples diminish significantly," he says.

Zoom argues that Comcast's testing program violates a 1998 FCC regulation specifying that consumers can attach cable modems of their choice, provided the devices don't harm the network.

In addition, Zoom alleges that the testing program runs contrary to the FCC's 2005 Internet policy statement, which set out net neutrality principles, including the principle that Web users have the right to attach non-harmful devices to broadband networks.

Even though an appellate court ruled earlier this year that the FCC lacks authority to enforce the Internet policy statement, Zoom nonetheless raised the issue in light of Comcast's pending merger with NBC Universal, says Berry. It's not yet clear what conditions, if any, regulators will impose on the prospective merger.

"We thought it was also important to note that what Comcast is doing runs afoul of neutrality principles," Berry says. "One would think they would be on their best behavior during this time."

Also representing Zoom is Kevin Martin, who served as chairman of the FCC when the agency ruled in 2008 that Comcast violated neutrality principles by throttling peer-to-peer traffic.

Comcast said in a statement that it "wants to make sure devices our customers purchase at retail will work well and are safe."

The company also said that it asks all manufacturers to submit to the same testing and offered to allow Zoom to "do the safety testing at their own Chinese manufacturing plants, but they refused this offer." Comcast added: "As Zoom decided not to take advantage of the courtesy we offered to simplify testing, we will be more than glad to explain to the FCC as we have already explained to Zoom how their refusal to permit any performance or safety testing of its device will harm consumers."

But some net neutrality advocates already say that the allegations show the need for new regulations. "This case clearly establishes that Comcast is engaging in grossly anti-competitive conduct and is a serial violator of the FCC's net neutrality policies," S. Derek Turner, research director of Free Press, said in a statement. "Despite its calls for self-regulation, Comcast has demonstrated time and again that it will push the boundaries of the law without any concern for how its actions harm consumers."