• by Wendy Davis  @wendyndavis, March 4, 2008

Comcast should respond to bandwidth shortages by upgrading its network and increasing capacity rather than impeding traffic to peer-to-peer sites, advocacy group Free Press argued to the Federal Communications Commission.

"Consumers want upgrades and a competitive market would provide such upgrades," the group wrote in supplemental comments filed recently with the FCC. "Without investment in upgrades, we'll continue to fall behind our global competitors."

Last year, an investigation by The Associated Press revealed that Comcast was slowing traffic to BitTorrent and other peer-to-peer sites. Free Press and other advocates, as well as online video company Vuze, subsequently filed FCC complaints charging Comcast with singling out peer-to-peer networks for special treatment. The groups allege that Comcast's actions violate a 2005 FCC policy statement endorsing net neutrality.

Comcast responded that it's only trying to manage traffic on its network and that governmental regulation will hamper improvements to broadband services.

"Rather than restricting or mandating particular practices, the Commission should simply encourage operators to use reasonable management techniques, like those that Comcast uses, that are the least intrusive and most experience-enhancing to the overwhelming majority of consumers," the company wrote in its most recent FCC filing, submitted late last week.

Those comments expanded on remarks made at an FCC hearing in Cambridge, Mass. last week, when executive vice president David Cohen testified that the slowing of traffic to peer-to-peer sites presents only a "virtually imperceptible effect on a very small number of users."

The company also argued it needs to manage its network to protect consumers from spam and malware. "There's nothing wrong with network management," Cohen said at the hearing. "Every broadband network is managed, and every network must be managed or no network would function."

Free Press, in its most recent papers, reiterated that it objects not to efforts protecting consumers from unwanted material, but from using lawful applications. In what might be a first for an FCC filing, Free Press invoked the TV show "The Sopranos" to illustrate the point. "The opposing commenters point to clearly reasonable management, like blocking denial of service attacks, as evidence that blocking competitors or consumer applications should be acceptable. That is like Tony Soprano arguing he can kill in cold blood -- or that murder should not be illegal -- because sometimes killing could be justified, such as an old woman acting in self-defense."

At last week's hearing, FCC chair Kevin Martin indicated the agency might require that Comcast more fully disclose its traffic-slowing practices to consumers.

Free Press in its papers argued that disclosure is critical, but that simply telling consumers about the possibility of traffic slowing doesn't solve the problem. "There is not enough competition to enable consumers to use their power of choice to discipline Comcast's bad behavior," the group argued.

NBC also weighed in with comments last week, arguing that throttling traffic to peer-to-peer networks doesn't violate neutrality principles because, according to the TV network, much of the material on such networks is pirated.

"There is overwhelming and undisputed evidence that massive copyright infringement takes place on peer-to-peer file sharing networks and that BitTorrent and other P2P technologies are today used primarily to facilitate the exchange of a tidal wave of illegal content," the company argued.