Commentary

Comcast to FCC: Our Traffic Shaping Was Lawful

Now that FCC chair Kevin Martin has gone on record as saying he wants to rule that Comcast violated net neutrality principles, it's virtually certain that the FCC will issue a ruling against the cable company.

But that doesn't mean there's no suspense left. Digital rights advocates are worried that the ruling might be too narrow to serve as a ringing endorsement of net neutrality. And Comcast is still clearly hoping that whatever order comes down has little impact on the company's practices.

Comcast just this week sent the FCC a new 22-page letter, again arguing that it did nothing wrong in delaying some peer-to-peer traffic. "The overwhelming majority of the billions of P2P sessions that are effectuated daily over Comcast's network are not delayed. And, when a P2P upload is delayed, in the vast majority of cases, that delay lasts less than a minute. By no reasonable definition of the word can this reasonably be considered to be 'blocking,' " Comcast wrote.

Comcast's most recent missive was prompted by a filing last week by net neutrality advocate Free Press, which hopes to persuade the FCC to issue as sweeping a ruling as possible. "Free Press claims that Comcast's approach for managing such congestion is unreasonable simply because it allegedly deviates from Internet standards," Comcast wrote. "This erroneously suggests that there exists a comprehensive list of standards governing how the Internet operates. That is not the case."

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Comcast also argues that its approach is content-neutral, if not protocol-neutral. "Comcast's approach is to manage only those protocols that negatively affect the network and its users; this is entirely content- and identity-neutral, and certainly not discriminatory," the company argues.

But the reality isn't that simple. There might not be a "comprehensive list of standards," but the FCC has been on record since 2005 as saying that consumers should have access to applications of their choice. Of course, there are still real questions about whether that statement is enforceable. The FCC clearly thinks it has the power to enforce its policies, but courts might disagree -- and this matter seems certain to end up in court, unless Comcast and the FCC can agree to settle the matter.

The FCC is expected to make a decision next month.

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