• by Wendy Davis  @wendyndavis, February 14, 2008

In comments filed with the Federal Communications Commission, Comcast argued that it doesn't violate net neutrality principles by slowing down traffic to bandwidth-hungry peer-to-peer sites because it does so based on objective factors, without considering content or the identity of users.

"Comcast's policies simply are not discriminatory," the company said in an 81-page document filed this week. "Comcast uses purely objective criteria that focus on the effects that all protocols have on network congestion and, correspondingly, its customers' use of the Internet."

The FCC launched an investigation into Comcast last month, following complaints by video company Vuze, as well as advocacy groups including Free Press and Public Knowledge, that Comcast was impeding traffic to BitTorrent and other peer-to-peer sites.

Comcast acknowledged slowing traffic to such protocols, but says it does so to manage traffic on its network. It said in its filing that a "very small number" of consumers use some peer-to-peer protocols "that utilize immense amounts of bandwidth in ways that are unpredictable and inconsistent and that can threaten to overwhelm network capacity and harm the online experience of other users."

Free Press, Public Knowledge and other neutrality advocates discounted such arguments in their own lengthy comments, submitted to the FCC late Wednesday. The groups urged the FCC "to act swiftly to clarify that network providers cannot degrade, block, or discriminate against content or applications or undermine competition and freedom of speech."

The advocacy coalition argues that blocking one specific type of application--peer-to-peer protocols--is not a reasonable way to manage traffic. They also argue that Comcast is undermining its competition in the online video area by slowing traffic to other sites.

In addition to providing cable and Internet access services, Comcast also offers video-on-demand as well as its own video broadband service, Fancast, which lets users watch TV shows online. Web users who visit peer-to-peer sites like BitTorrent often do so to access videos.

Given Comcast's own interest in providing Web video, Gigi Sohn, president of Public Knowledge, questioned whether the company's criteria for slowing traffic were truly objective. "They have a lot of competitive reasons to block this one protocol," she said.

Comcast, in its FCC comments, further argued that the agency doesn't have the authority to take action against it. The company maintains that the FCC can't enforce its 2005 policy statement--which endorsed net neutrality in principle, but provided an exception for reasonable traffic management--arguing that the document doesn't have the force of law.

A bill introduced Wednesday by Rep. Ed Markey (D-Mass.) and co-sponsored by Rep. Chip Pickering (R-Miss.) would direct the FCC to hold a hearing to determine whether Internet service providers were complying with its 2005 statement of principles.

The bill, the Internet Freedom Protection Act of 2008, is being touted by Markey as a means of enshrining net neutrality principles. "The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered," Markey said in a statement.

But, unlike a net neutrality measure that Markey unsuccessfully introduced in 2006, this act does not attempt to regulate Internet service provides. Instead, it merely provides that U.S. policy is that network operators should not unreasonably interfere with Internet use or discriminate.