• by Wendy Davis , Staff Writer @wendyndavis, April 18, 2008

With the two Democrats on the Federal Communications Commission supporting stronger net neutrality laws and the two Republican commissioners favoring a more laissez-faire approach, it's falling to chairman Kevin Martin to pick sides in the debate.

So far, he still appears to be wavering between the two. At a public hearing at Stanford yesterday, he repeated that the agency has the authority to enforce its 3-year-old net neutrality principles. In 2005, the agency endorsed the idea that ISPs shouldn't pick and choose which Web sites customers can visit, but said networks could implement reasonable traffic management measures.

Martin has never definitively said whether he thinks the FCC should rule against Comcast. But Comcast now says it will work with BitTorrent and other companies to develop traffic management techniques that don't rely on slowing visits to peer-to-peer sites. Given the company's retreat from its prior stance, Martin might well decide there's little to be gained by issuing an order against Comcast that could potentially prod the company to go to court and challenge the FCC's authority.

At the Stanford hearing, Martin also reiterated that ISPs must disclose any traffic management efforts to customers, arguing that practices aren't reasonable if they're not disclosed. But ordering ISPs to disclose potential interference with traffic isn't the same as telling them to stop it.

Net neutrality advocates say that disclosure isn't enough to protect Web users because there's little they can do with the information. Many people have a choice of just two broadband providers -- their cable company or telecom -- and if both of them throttle traffic, there's not much their customers can do.

The Stanford hearing was the second held by the FCC in response to complaints that Comcast was systematically interfering with traffic to peer-to-peer sites. At the first hearing, Comcast packed a classroom at Harvard Law School with shills, crowding out grass-roots advocates who had come to tell the FCC why they support net neutrality. Comcast didn't attend Thursday's hearing.