Martin Has FCC Democrats’ Support for Comcast Net Order

With Commissioners Michael Copps and Jonathan Adelstein on board, Martin seems less inclined to settle with Comcast than he did July 11, when he circulated the order, industry officials said. Martin’s more conciliatory stance earlier may have reflected uncertainty about gaining a majority for an order, they said. Since January, the Enforcement Bureau has been investigating network management at Comcast. After studying the proposed order, Adelstein decided he probably could support it, commission officials said. The support strengthens Martin’s hand if he pursues a settlement with the company, they said. An FCC spokesman declined to comment.

Comcast executives and Martin are believed to have spoken last week about a settlement, said commission and industry officials. Martin seems to want Comcast to accept a consent decree that would likely be written by the Enforcement Bureau and contain the same findings as the order, they said. If the company does that, Martin would pull the order from the Aug. 1 meeting agenda, the final version of which was released late Friday. Industry officials don’t believe that the order has the support of Commissioners Robert McDowell and Deborah Tate.

Under the order, Comcast would have to disclose its network management practices to subscribers and immediately end special treatment of particular Internet content, such as BitTorrent P2P file transfers it’s accused of blocking, commission officials said. Those terms almost certainly would appear in a consent decree, they said. But Comcast could balk, taking its chances in court and suing the FCC over an order if commissioners approve it, industry officials said. Comcast repeatedly has denied discriminating against Web content and said subscribers have access to any Web site they want(WID July 23 p6).

The result of the fluid case is hard to handicap, a communications lawyer said. Discussions have been on and off since Martin said he met July 11 with Comcast executives in what others described as potential settlement talks. Little was communicated between the company and Martin between the first meeting and last week, commission and industry officials said. A Comcast spokeswoman declined to comment.

Comcast Still Blocking BitTorrent Uploads?

Conflict escalated between Comcast and the user who blew the whistle on its data-throttling, as Portland, Ore., network engineer Robb Topolski retorted to a July 21 Comcast filing (WID July 23 p6). Now designated traffic-shaping expert for Free Press and Public Knowledge (WID July 9 p3), Topolski challenged Comcast claims that it engages in network management practices “common” to industry. Cox is the only other ISP using so-called reset flags through Sandvine hardware to interfere with P2P transfers, Topolski said.

Comcast still blocks BitTorrent uploads, Topolski said: “I haven’t been able to upload anything… in any test run since February.” Nor does the company consider “current congestion” before blocking, he said. Internet Engineering Task Force (IETF) standards explicitly recommend against use of reset flags by a “third party forging and injecting [a message] into an ongoing transfer,” he said.

Comcast’s claim of a “considerable investment” to boost upstream capacity clashes with its other public declarations, Topolski said. In the past year the company has done so- called node splits at less than 9 percent of its nodes, and does network upgrades when nodes hit 70 percent saturation, “not prior to introduction of speed increases,” he said.

Topolski complained of “personal attacks” by Comcast. He still has his original Comcast subscription, even as he is testing Verizon’s slower service, because those are the only broadband options in his area, Topolski said. He cancelled a May 29 meeting at Comcast’s Philadelphia offices, set up as a “frank ’techs only’ discussion,” because at the last minute Comcast sent Senior Vice President Joe Waz, often its public face in Washington (WID April 24 p1). Topolski met “most of the other Comcast CTO technologists” at an IETF meeting in Boston before the scheduled Comcast meeting, he said. Comcast also broke faith by going public about that meeting, he said.

“Unable to handle facts, Comcast has questioned my qualifications,” Topolski said. Other groups have reproduced Topolski’s results on Comcast connections, he said. Despite his long stretches at Intel and Microsoft, Topolski declines to call himself an “engineer” because Oregon doesn’t certify network engineers, he said. It’s not germane that he never worked at an ISP, Topolski added, because the subject matter is deep-packet inspection, only recently feasible at the ISP level.

If Comcast Is In Trouble, So Are Campuses and Carriers

The NCTA sought to overcome critics’ claims that cable companies interfere with P2P traffic to stifle competition. Video accounts for the vast majority of P2P traffic by amount of data, though monitoring services say the largest number of files are of music. “Virtually all of the top national universities … restrict users’ ability to engage in activities that cause excessive congestion,” including by limiting all P2P use, the NCTA said. That’s more “draconian” than what cable companies do, which usually goes no further than delaying uploads, it said. Wireless carriers have no plausible anticompetitive reasons to restrict P2P traffic, but they impose restrictions like the universities, the group said.

If the FCC decides that Comcast’s network management practices crosse the line, it must say the same about colleges and wireless carriers, the NCTA said. “Allowing some Internet service providers to manage P2P traffic -- much less to engage in complete blocking of P2P traffic -- while prohibiting others from doing so would be arbitrary and capricious,” the filing said. “Maximizing customer satisfaction” should be the FCC’s overarching goal, so providers should have the freedom to test for techniques that are “best suited to preventing congestion,” it said.