Free Press warns FCC: Comcast's 'good behavior' is a trick

by Nate Anderson, Ars Technica

Free Press, the advocacy group riding Comcast so hard it could probably use a quality pair of leather chaps, today filed a strongly-worded statement with the FCC about the company's actions. Not only is Comcast lying, blocking, flip-flopping, and upping its speeds without making infrastructure investments ("window dressing"), but the company's recent public partnerships with companies like BitTorrent are merely a facade designed to keep regulators at bay. But if the FCC's attention falters, says Free Press, Comcast will just do exactly what it did years ago in the old line-sharing debate: beat off regulators, then go back to bad habits.

Comcast tells Ars that Free Press needs to put down the horsewhip and trudge back to the classroom: those old agreements are still in place and the new agreements are serious and expensive efforts to craft a fairer throttling system during times of congestion.
"Same playbook, same trick play, different quarter"

The Free Press filing (PDF) is designed to keep the pressure on the FCC. While Chairman Kevin Martin recently indicated his support for a bit of regulatory flogging, Free Press hasn't yet seen the order Martin will circulate and wants to make sure he keeps that backbone stiff. To that end, the ex parte filing rehashes the list of Comcast's sins, but makes one new and intriguing argument regarding the company's partnerships.

Those private partnerships have flourished over the last six months as the FCC investigation into Comcast's traffic management practices and P2P shenanigans ramped up. The company inked deals with BitTorrent, for instance, along with the P4P group and Vonage. Comcast touts those deals as showing that regulation isn't necessary, but Free Press argues that this is nothing more than a tactic to prevent FCC action. Once the threat of regulation goes away, the partnerships will turn out to produce little of value.

"In short," says the filing, "Comcast's side-deals are the product of government scrutiny and Comcast's desperate desire to frustrate FCC action... We call the Commission's attention to Comcast's pattern of cutting deals when the FCC is looking, and then using market power and bottleneck control to destroy competition when FCC attention moves to new challenges. Indeed, Comcast is using the same playbook with the open Internet that it used a few years ago during the ISP open access debate."

That debate was over whether cable operators like Comcast should be required by law to lease their physical lines to other providers of high-speed Internet access (the FCC eventually said no). Comcast said at the time that a series of private deals struck with groups like Earthlink showed "the ability of industry participants to make the necessary arrangements through voluntary, commercial negotiations." In other words: no need to regulate! The free market is humming along!

But, according to Free Press, that ended when the FCC ruled. "When the Commission granted Comcast relief and trusted the (uncompetitive) market, Comcast did the exact opposite of what it assured the Commission—it denied access to independent ISPs. Comcast is trying to return to the same exact tactic here."

When Comcast signed the agreement with BitTorrent earlier this year, the company used that deal to lobby the FCC "to rely on the marketplace rather than government regulation." So, are these partnerships little more than a smokescreen?
Comcast: Our old deals are still in place

While Comcast did decide to curb its line-sharing program once the FCC declined to make it mandatory, the company stresses that it is serious about its agreements. A company spokeswoman tells Ars that the old private deals it signed with groups like Earthlink and United Online are still active, and that the company continues to honor them even when it picks up markets from fellow cable operator Time Warner.

Would the new agreements have been reached without FCC oversight? Probably not, as Comcast admits that it got serious about such partnerships after criticism of its TCP reset packet system mounted late last year. The company then embarked on an "extensive outreach" to BitTorrent, the IETF, P4P, Vonage, and others as it sought a new system for shaping traffic.

The deal with BitTorrent came as Comcast announced upcoming support for a protocol-agnostic system, currently in trials and due to go live later this year. That has required pricey engineering and testing resources, says the company, showing that such private deals aren't just vague agreements to "talk" but commitments to act.

The recently-announced Vonage deal, in particular, attracted criticism from Free Press, which wondered why Vonage would even need to have a partnership with Comcast. Should its traffic go through without any special deals?

Comcast says that's a misreading of the issue. Under the old throttling system, P2P traffic was affected but not VoIP, so there were no concerns about Vonage. But Comcast is transitioning to a protocol-agnostic system, which "has its own complexities," and the company wants to preemptively make sure that there are no problems when the system goes live. (One can certainly imagine the howls of protest if Vonage traffic were somehow slowed under the new system, since Comcast offers a competing VoIP phone product of its own.)
Will the real flip-flopper please stand up?

Comcast has some charges for Free Press, as well. The two companies filed dueling documents last week in which Free Press reiterated its belief that the FCC has the needed authority to punish the cable company based on the 2005 "Internet policy statement."

Comcast argues that the statement was clearly not a "rule" and has no legal force; in addition, it says that Free Press has changed the entire legal theory underlying its argument.

"Free Press' about-face on the enforceability of the Internet Policy Statement represents a tacit concession that its Petition and Complaint lack any legal foundation," it wrote. "Comcast, however, has no legal objection to the ability of the Commission to revisit the issues, through the established rulemaking process, of what rules, if any, should apply to Internet service providers in general or to their network management activities in particular and whether it has the statutory authority to adopt specific rules. As Comcast has said repeatedly, it is entirely legitimate to debate those issues in a properly conducted rulemaking proceeding.”

In today's filing, Free Press claims that Comcast is the real flip-flopper, and is "accusing others of its own sins."

"After we showed how Comcast told the FCC that the FCC lacked jurisdiction within days of telling a California court that the FCC had exclusive jurisdiction, Comcast makes a flimsy accusation that we were flip-flopping on legal theories," says the group. "Comcast is trying to have it both ways. Comcast argued that the Policy Statement cannot serve as a basis of FCC authority because it lacks statutory support. When we respond by elaborating in detail that statutory support, Comcast claims we have 'abandoned' the Policy Statement in favor of statutory authority."

Among all the spin, we know one thing for certain: Kevin Martin is already prepared to rule against Comcast. All he needs is an additional two votes from the Commission, and both Democrats seem likely to go along (each is an outspoken advocate of "Internet freedom").

The question is really what form the final ruling might take. Comcast, seeing the writing on the wall, is pushing for a slap on the wrist but no fine. Free Press today told the FCC a fine was warranted and "should be large enough to deter such nefarious behavior." Comcast looks all but certain to challenge the judgment in court on the grounds that the FCC has no authority to act without first holding a full rulemaking, but Free Press General Counsel Marvin Ammori tells Ars that, even if a challenge is made, the FCC rule would still remain in force until a judge rules.

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