• by Wendy Davis  @wendyndavis, July 14, 2008

Digital rights advocates largely cheered Federal Communications Commission Chair Kevin Martin's statement late last week that Comcast's interference with peer-to-peer traffic is unlawful.

"It's a good first step," said Marvin Ammori, general counsel of the net neutrality group Free Press, on Friday. "It sounds like it's going to set baseline protections for consumers that we can build upon."

At the same time, advocates cautioned that it's premature to declare victory because the final FCC order in the case might end up being very narrow.

Late Thursday, FCC chair Kevin Martin said he would recommend ruling that Comcast's traffic-shaping techniques violate the principle that Internet service providers should treat all Web traffic the same. Martin's proposed order directs Comcast to stop slowing particular types of traffic and that the company discloses its network management practices, but stops short of recommending a fine. The two Democrats on the FCC are likely to support Martin's recommendation when the agency votes on the proposal on Aug 1, but the wording of the order could still be tweaked.

Martin's decision comes almost one year after an investigation by The Associated Press found that Comcast was impeding some peer-to-peer traffic. The revelations triggered advocacy groups Free Press and Public Knowledge to file complaints with the FCC. Online video company Vuze also filed a complaint.

They alleged that Comcast's traffic-shaping techniques violated a September 2005 policy statement, which said that Internet service providers shouldn't discriminate between types of content or applications, much like telephone companies aren't allowed to decide which phone calls to put through. But that statement set out an exception for reasonable traffic management.

Comcast argued that its traffic shaping strategy was a reasonable means to manage congestion on its network. The company also took the position that the FCC can't sanction it, because the 2005 statement of principles isn't legally binding.

Comcast's Sena Fitzmaurice, senior director, corporate communications and government affairs, issued a statement Friday defending the company. "Comcast does not block any Internet content, application, or service," she stated. "The carefully limited measures that Comcast takes to manage traffic on its broadband network are a reasonable part of Comcast's strategy to ensure a high-quality, reliable Internet experience for all Comcast High-Speed Internet customers and are used by many other ISPs around the world."

Advocates said they were pleased that Martin endorses net neutrality, but some said that in the future, the FCC should also impose monetary penalties on companies that violate neutrality principles. "Going forward, there has to be a fine," Ammori said. "Otherwise, Internet service providers would have no incentive to be honest with the public."

Art Brodsky, communications director at neutrality group Public Knowledge, added that it's too soon to celebrate the ruling because it could end up being quite narrow. For instance, it's possible that the ruling could specify that Comcast's blocking of certain peer-to-peer protocols was unlawful, while leaving open the question of whether other applications could be blocked.

While Free Press and Public Knowledge were largely optimistic about the FCC's ruling, at least one digital rights group was wary. In a post on its Web site, the Electronic Frontier Foundation sounded a cautionary note. "Any rule that restricts the way the Internet can operate must be read upside down, backwards, and inside out to ensure that it won't turn out to prevent good engineering that nobody has thought of yet," the group said in a statement posted to its Web site. "We are also concerned that regulatory steps by the FCC could stretch the limits of the Commission's statutory authority; we would feel more comfortable if Congress had clearly considered, allowed, and bounded FCC jurisdiction in this space."

The state of the law has been unclear since June 2005, but prior to that, Internet service providers were bound by the same common carrier principles that prohibit telephone companies from discriminating. In a March 2005 case, broadband provider Madison River agreed to a $15,000 fine to settle charges that it had blocked Vonage's Voice over Internet Protocol service to some consumers. But a Supreme Court decision in June 2005 allowed the FCC to consider broadband an "information service," which isn't subject to common carrier anti-discrimination rules.

In March, Comcast said it will develop a protocol-agnostic traffic management strategy.