• by Wendy Davis  @wendyndavis, July 28, 2008

In a behind-the-scenes vote, a majority of the members of the Federal Communications Commission have decided to sanction Comcast for slowing peer-to-peer traffic.

The FCC's two Democrats, Michael Copps and Jonathan Adelstein, agree with chair Kevin Martin that Comcast's traffic-shaping techniques violated net neutrality principles, according to press reports. The five-member commission is expected to issue a ruling on Friday.

The FCC's two other commissioners might dissent from a decision to sanction Comcast. In a column in today's Washington Post, Republican Commissioner Robert M. McDowell laid out a case against regulating how networks manage Web traffic. "The Internet has flourished because it has operated under the principle that engineers, not politicians or bureaucrats, should solve engineering problems," he wrote. "If we choose regulation over collaboration, we will be setting a precedent by thrusting politicians and bureaucrats into engineering decisions. Another concern is that as an institution, the FCC is incapable of deciding any issue in the nanoseconds that make up Internet time."

Comcast spokesperson Sena Fitzmaurice defended the company's traffic-managing practices. "We continue to assert that our network management practices were reasonable, wholly consistent with industry practices and that we did not block access to Web sites or online applications, including peer-to-peer services," she said in a statement.

Comcast has been on the defensive since an investigation last year revealed that it slowed some peer-to-peer traffic. The findings spurred advocacy groups Free Press and Public Knowledge to file a complaint with the FCC alleging that Comcast was violating non-discrimination principles. The groups alleged that Comcast's traffic-shaping violated a 2005 FCC policy statement, which said that network providers should provide subscribers with equal access to all content and applications--much the same way that telephone companies can't censor phone calls.

The cable company admitted it slowed some peer-to-peer traffic, but said it did so on a very limited basis and solely to manage congestion on its network. The company also argued that the FCC has no jurisdiction to enforce net neutrality principles on the theory that such principles are not enshrined in law.

But Martin has said for months that he believes the FCC has the authority to enforce net neutrality principles. He also has publicly criticized Comcast for having implemented a traffic-shaping system that impeded subscribers' ability to use the Web without informing customers ahead of time.

Two weeks ago, Martin said he had drafted a proposed ruling stating that Comcast violated the principle that Internet service providers should treat all Web traffic equally. That proposed order called for Comcast to stop throttling traffic and disclose all network management plans to subscribers, but did not contain a fine. At the time, it was widely expected that the FCC's two Democrats would also vote against Comcast.

Comcast has already said it will develop a protocol-agnostic traffic-shaping strategy, but advocates still cheered the news that the FCC appears to be ready to publicly condemn Comcast. "If adopted, this order would send a strong signal to the marketplace that arbitrarily interfering with users' online choices is not acceptable," Marvin Ammori, general counsel of Free Press, said in a statement.

Meanwhile, the fallout for Comcast is likely to extend beyond the FCC order. The company was just hit with another putative class-action lawsuit stemming from its slowing of peer-to-eer traffic, this time by software tester Robb Topolski, chief technology consultant for Free Press and Public Knowledge.

In his lawsuit, filed in federal district court in Oregon, Topolski alleges that Comcast misrepresented its service. "Comcast failed to inform plaintiff and the class that it would block, slow, delay, or otherwise impede P2P file-sharing applications. On the contrary, Comcast repeatedly assured that plaintiff and the class would receive fast, unfettered Internet access," the complaint alleges.

Topolski, who was one of the first customers last year to discover exactly how Comcast interfered with peer-to-peer applications, told Online Media Daily that he would like Comcast to pay monetary damages to customers and to stop throttling traffic. "Since the beginning, I've been asking for Comcast to end the interference and fulfill the obligations of an Internet service provider," he said.

Fitzmaurice declined to comment on Topolski's lawsuit.

His case joins other lawsuits pending in California, Illinois, New Jersey and Washington, D.C.