There was a standing-room only crowd in the Ames Courtroom
at the Harvard Law School
for today’s en banc hearing of the
FCC on Broadband Management Practices.
As FCC Chairman Kevin Martin explained, this was an opportunity for the commission to get out into the world and talk to the people. The contemplated action was a response to petitions by Vuze, Inc. and the Free Press alleging that Comcast had been interfering with its subscribers' use of BitTorrent by injecting counterfeit RST packets in the TCP stream. Added to the mix was a bill filed by Congressman Ed Markey (D - MA), H.R. 5353 - the Internet Freedom Preservation Act of 2008, which would mandate more hearings like today's and empower the FCC to make regulations regulating how network operators restrict their subscribers use of the Internet. All of the above players were present at today's hearing, along with the entire Commission and a number of expert witnesses. The FCC also gathered comments on its Web site and recorded video contributions from members of the public, some of which were shown at the session.
Markey made a opening speech in which he reminded the audience and the commission that "the Internet is as much mine and yours as it is Verizon’s, AT&T’s or Comcast’s." His prepared remarks are here, including a call for more competition in which he said “We want to look back years from now and be able to celebrate that this
is No Country for Old Bandwidth." He remarked that he thought that was the most
appropriate Oscar reference, certainly better for today’s
academic deliberations than “There Will Be Blood.”
Most of the testimony and discussion revolved around what kind of bandwidth management practices were reasonable, exactly what Comcast did, what authority the FCC had to regulate network operators, and what was the best policy to promote broadband in the US.
The issue of transparency surfaced repeatedly. Commissioner Michael Copps accused Comcast and other network operators of making management decisions "in a black box" and recalled an old Washington adage that “decisions made without you are usually
decisions made against you.” He lumped the Comcast actions together with other cases where operators had refused to make SMS short codes available to controversial causes or censored a web broadcast critical of Bush's stance on Iraq.
The general tone of the Commission, even before any of the testimony, was that there were definite limits on how a network operator could restrict it's subscribers access. Several of the commissioners made reference to the commission's previous adoption of four freedoms for Internet consumers:
- access the lawful Internet content of their choice.
- run applications and use services of their choice
- connect their choice of legal devices
- competition among network providers, application and service providers, and content providers.
The first witness was Gilles BianRosa of Vuze,
Inc. Vuze uses a BitTorrent client to deliver video content licensed from its 150 partners. BianRosa said that there have been 20,000,000 downloads of the application to date. He described what he called a "cat and mouse game" with Comcast in which his subscribers had problems getting content but Comcast denied having done anything. He allowed as to how Comcast was entitled to manage their network but suggested that their motives went beyond maintaining the quality of the network and were really a form of unfair competition. As he said, Comcast was running a horse race in which it owned both the race track and a horse in the race. He said he was willing to let the market decide but that markets only function of there are rules. He also said he was willing to work with any reasonable management scheme, but that was difficult when the network operators were not forthcoming about what they were doing.
David L. Cohen of Comcast said it was a pleasure to be there as a participant but "hopefully not as the main course of the meal." In what Chairman Martin later told me was Comcast's first on-record admission that they had been doing any filtering Cohen said they were using "this one tool" and only in periods of heavy traffic, in only those geographies impacted by such traffic, and only until such time as the congestion is alleviated. He said what they were doing was delaying packets "for only a few seconds" and only in the upload direction, something he said would cause BitTorrent to send its traffic to less congested nodes. He allowed as to how this action would be "almost imperceptable to customers" - something that BianRosa and others disputed.
As the other witnesses testified and the commission asked questions, it was clear that there were legitimate reasons for Comcast to manage traffic, but the general consensus was that needed to be done in an open and above-board manner.
At the end of the morning's session, the Martin asked Comcast and Verizon if they thought the Commission had the authority to regulate how the operators managed their networks or if they agreed with Congressman Markey that additional legislation was necessary. Tom Tauke of Verizon said he thought the FCC had the authority, but added that Verizon did not operate a "shared network" and thus did not engage in the tactics of which Comcast was accused. Comcast's Cohen said he thought the Commission had not followed its own rulemaking procedures and thus could not penalize Comcast. When asked if the Commission could levy penalties after making such rules he said he "would have to get back to them."
If the morning's session was mostly lawyers, the afternoon was mostly technologists. David Reed, of the MIT Media Lab used a paper envelope to illustrate the difference between a IP packet and it's contents, and made the analogy that what Comcast was doing amounted to opening the envelope and messing with the packets. [Update: text of Reed's statement here] ] He said he had captured the packets on both ends of a BitTorrent connection on the Comcast network and observed how Comcast had forged RST packets so that each user's machine was fooled into thinking the packet came from the other user's machine. As David Clark and other witnesses pointed out, the Internet has long had mechanisms for handling bandwidth shortages. Comcast's major sin was hacking something together that violated all the rules, and then denying that they did it - not the kind of cooperation on which the Internet has depended.
Clark bemoaned the unwillingness of any of the network operators to share usage information, making it impossible to assess how widespread were the problems that Comcast complained about. He did cite some figures he found which indicated that it cost a network operator $0.10 to deliver a gigabyte, outing the cost of provisioning the average customer at $0.50 per month. On the other hand, watching HDTV might consume 200 GB per month, so the incremental cost of IPTV could be $20.00. He said that all-you-can-eat pricing may not be tenable under those circumstances and that network operators may end up going to some sort of tiered pricing.
At about 5:00 pm, the group adjourned to Pound Hall for some wine and cheese. Chairman Martin (shown at right holding a Diet Coke) stayed for several hours chatting with the participants. (Bob Frankston in the photo.)
UPDATE: the date has been changed to Monday 25 February.
