FCC votes against Comcast policy

Corp under fire in Net neutrality case

By WILLIAM TRIPLETT

WASHINGTON -- Internet service providers cannot block or slow online traffic without a good reason, but they are free -- even encouraged -- to police their pipes for illegal content.

That was the main showbiz implication of Friday's widely expected FCC ruling that Comcast had violated federal policy on open Internet access by blocking online traffic last year.

The 3-2 commission vote included some sharp dissent from GOP commissioners Deborah Taylor Tate and Robert McDowell, both of whom extensively disputed the need for the Federal Communications Commission to enter the marketplace. But Dem commissioners Michael Copps and Jonathan Adelstein joined agency chairman Kevin Martin in agreeing that the complaint against Comcast -- that it had overstepped reasonable network management practice and interfered with bandwidth-heavy traffic -- was justified and merited action.

While it did not issue a fine, the commission did order the cable giant to stop managing its network the way it has been.

Comcast said it was "disappointed" in the ruling because the cabler argued it did not block traffic and its network management practices were reasonable.

The entertainment industry -- in particular, the record labels -- followed the case because of its direct implications regarding the issue of Net neutrality. Both the recording industry and Hollywood oppose any legislative attempts to enforce Net neutrality, the principle that ISPs should not be allowed to discriminate against users or websites. Industry execs believe that enforced or regulated Net neutrality could impede online antipiracy efforts.

Friday's ruling made clear the FCC will act against ISPs if they are not abiding by "reasonable" network management practices, though it has not officially defined what the term means. But the ruling stopped far short of imposing any formal structure on how ISPs must operate.

Moreover, Martin emphasized that the ruling does not prevent ISPs from blocking or stopping illegal content.

"We make clear that network operators can block any illegal content or applications that are intended to harm the network," Martin said. "The (ruling) makes clear, for instance, that providers can block child pornography or pirated video and music. Indeed, blocking illegal content could go a long way to reducing bandwidth congestion."

The case arose last fall, when Comcast customers who used such file-sharing software as BitTorrent noticed their transmissions aborting prematurely. The Associated Press ran tests and reported Comcast was indeed cutting off transfers by masquerading as customers. The report led to a complaint by public interest group Free Press and others that the company was violating agency principles.

Comcast has said it only delayed traffic among users of the file-sharing, peer-to-peer programs that were responsible for taking up a disproportionate share of bandwidth and endangering service for other customers. The company has pledged to stop using its network management practice by the end of the year and switch to a "protocol agnostic" technique that will not single out any particular type of user.

"There is no longer any doubt that ISPs have the right to use network management tools to address unlawful activity -- including the theft of copyrighted music," Recording Industry Assn. of America topper Mitch Bainwol said in response to Friday's ruling. "The FCC proceeding concluding today has generated a healthy and appropriate debate about how ISPs should manage their networks. We applaud chairman Martin's clear affirmation that ISPs may use technology to prevent the theft of copyrighted works."

The MPAA's response to the vote was measured. MPAA chairman Dan Glickman said in a statement that the org would have to analyze the FCC's order to determine its "practical impact on the ability to protect content online." Glickman emphasized that the MPAA believes "allowing ISPs to address capacity and piracy abuses is the best way of providing consumers with a dynamic, content-rich broadband experience."

A Comcast rep reiterated the company's position that the steps it took were "reasonable, wholly consistent with industry practices and that we did not block access to websites or online applications, including peer-to-peer services." The statement from Comcast rep Sena Fitzmaurice also raised the specter of a legal challenge.

"We also believe that the commission's (ruling) raises significant due process concerns and a variety of substantive legal questions," the Fitzmaurice said. "We are considering all our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays."

(The Associated Press contributed to this report.)