In the Matters of Formal Complaint of Free Press and Public Knowledge Against Comcast

Citation

In the Matters of Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications and Broadband Industry Practices Petition of Free Press et al. for Declaratory Ruling that Degrading an Internet Application Violates the FCC’s Internet Policy Statement and Does Not Meet an Exception for “Reasonable Network Management, 23 FCC Rcd 13028 (2008).

Factual Background

In 2007, through various experiments by the media, most notably the Associated Press, it became clear that Comcast was intermittently blocking the use of an application called BitTorrentTM and, possibly, other peer-to-peer (P2P) file sharing programs on its network. Comcast eventually admitted to the practice and agreed to cease blocking the use of the P2P applications on its network. However, Comcast maintained that its actions were reasonable network management and not in violation of the Federal Communications Commission’s (“FCC” or “Commission”) policy.

FCC Proceedings

In response to a petition from Free Press for a declaratory ruling that Comcast’s blocking of P2P applications was not “reasonable network management,” the FCC conducted an investigation into Comcast’s network management practices. The FCC determined that Comcast had violated the agency’s Internet Policy Statement when it blocked certain applications on its network. This practice, the FCC concluded, "unduly interfered with Internet users’ rights to access the lawful Internet content and to use the applications of their choice."

The FCC declined to fine Comcast, because its Internet Policy Statement had never previously been the basis for enforcement forfeitures.

Court Proceedings

Comcast appealed this decision to the U.S. Court of Appeals for the D.C. Circuit, as did other public interest groups. Comcast argued that the FCC did not have the authority to enforce its Network Management Principles and the Commission’s order was invalid for that reason. The Commission argued that it has ancillary authority under Title I of the Communications Act to implement the broad statutory goals for an open, user-controlled Internet laid out by Congress.

The court ruled in favor of Comcast on April 6, 2010. See Comcast v. FCC.

Discussion

After the FCC ruling, Comcast complied with the FCC order and developed a new system to manage network congestion. Comcast no longer managed congestion by focusing on specific applications (such as peer-to-peer), nor by focusing on online activities, or protocols, but identified individual users within congested neighborhoods that was using large amounts of bandwidth in real time and slowed them down, by placing them in a lower priority category, for short periods. This new system complied with the FCC Internet principles in that it was application agnostic; that is, it did not discriminate against or favor one application over another but managed congestion based on the amount of a user’s real-time bandwidth usage.