Evaluation of the Comcast/BitTorrent Filing — Really Excellent, Except For The Gapping Hole Around the Capacity Cap.

After Comcast surprised me with their filing on Friday, I really wanted to believe they had turned a corner. Not to anthropomorphize too much, but I had hoped that Comcast had gotten such a bad public relations disaster out of this that they were determined to work so hard to be good little puppies that even a Democratic Congress, Democratic President, and Democratic FCC would believe that the we no longer needed rules. And I would be totally down with that (their behaving that is, we still need rules). I love it when companies learn their lesson and stop misbehaving. Remember, public policy is (IMO) all about result. If swatting Comcast on the nose like a naughty puppy gets them to stop pooping on their customers, then they deserve a pat on the head and a tummy yummy treat when they behave.

But I’m having a “Columbo moment” here. For those who did not grow up in the 1970s and therefore do not recognize the reference, Columbo is a television detective who every episode goes to talk to the chief suspect about the circumstantial evidence, and the chief suspect always has a fully prepared and perfect alibi. On the way out, apparently as an afterthought, Columbo will turn around and say: “there’s just one thing that bothers me.” This question on a minor inconsistency turns out to open a gaping hole in the suspect’s alibi and — in classic television fashion — allows Columbo to solve the crime by the end of the show.

I do not pretend there is any mystery here left to solve. Comcast’s filing very neatly explains their past practices, how we reached this point, and how Comcast intends to change its practices. It includes benchmarks for performance and a plan for informing its subscribers. It looks exactly like what the Commission ordered.

There’s just one thing that bothers me. Footnote 3 of Attachment B. Comcast stresses in footnote 3 that its 250 GB per month cap is not a network management policy, is not a replacement for its current network management practices, and therefore is not actually a proper subject of this disclosure report. Now why did they go out of their way to say that?

If you will excuse me, sir, while I adjust my raincoat, a bit more analysis below . . .

Lets start with the god stuff. Comcast provides a reasonable picture of its current practices and how we got here in Atatchment A. Briefly summarizing and combining this with the Florida AG settlement, it appears to me that Comcast did not block P2P for anticompetitive reasons. Rather:

Beginning in 2005, after the Supreme Court affirmed the Brand X decision classifying Cable broadband as a Title I service, Comcast began to purchase and deploy Sandvine equipment throughout its network. Comcast — like many other broadband access ISPs — may have been trying to figure out how to use their newly confirmed non-common carrier status to monetize internet traffic by “tiering,” even if it had no specific plans. At the same time, Comcast became concerned that it might begin to face congestion issues.

Rather than invest in upgrading its network, Comcast opted for the cheapest solution from its perspective without waiting for significant congestion to occur. It used the Sandvine equipment to block (“delay”) P2P transfers and (according to the Florida AG) targeted the top 1000 users per month, no matter what capacity these users actually consumed. This provided an effective means (from Comcast’s perspective) for managing potential congestion, even if it sucked rocks from a consumer perspective.

When Comcast got caught, it compounded its error by taking days to get its own story straight. Then it made things even worse for itself by going all stupid/stubborn and trying to show they had a bigger pair of beitzim g’dolim then Kevin Martin. By the time they finished, they had compounded a fairly idiotic “network management” scheme with a PR disaster.

Which makes total compliance with the FCC decree eminently sensible, from Comcast’s perspective. Having taken their lumps, sanity prevails and the company is doing what smart companies do in such situations: work your butt off to show everyone what a good little boy you are now so they will gradually forget it and you can go back to business as usual. I do not object to such a result. A regulatory regime that produces good behavior is what I am looking for. I have no need to “punish” Comcast or give them a hard time. If a hearty whack on the snoot with a rolled up regulatory newspaper gets them to be good doggies who fully disclose their practices and adopt protocol agnostic techniques, then hooray for them. I am pleased to give them a pat on the head and a tummie yummie treat for being good.

Which is why I am bothered by Footnote 3 in Attachment B:

These congestion management practices are independent of, and should not be confused with, our recent announcement that we will amend the “excessive use” portion of our Acceptable Use Policy, effective October 1, 2008, to establish a specific monthly data usage threshold of 250 GB per account for all residential HSI customers. This excessive use threshold is designed to prevent any one residential account from consuming excessive amounts of network resources as measured over the course of a month. That cap does not address the issue of network congestion, which results from traffic levels that vary from minute to minute. We have long had an “excessive use” limit in our Acceptable Use Policy but have been criticized for failing to specify what is considered to be “excessive.” The new cap provides clarity to customers regarding the specific monthly consumption limit per account. As with the existing policy, a user who violates the excessive use policy twice within six months is subject to having his or her Internet service account terminated for one year.

All of this is, of course, technically true. As identified in the Florida AG settlement, Comcast had an “excessive use” policy under which it could terminate users for excessive use of capacity despite advertising an “all you can eat” plan. Under its settlement with the Florida AG, Comcast will now make this capacity cap explicit.

So no, I suppose that technically the 250 GB bandwidth cap is not part of the network management practices. Conveniently enough, this reading means Comcast does not have to disclose any details about its new cap to the FCC as part of its compliance with the FCC’s Comcast/BitTorrent Order.

But it nags at me. It wakens my nasty and suspicious mind, which Comcast had started to sooth with its complete compliance with the FCC’s Order. Why is Comcast so insistent on this point? Indeed, since it announced the cap last August, Comcast has repeatedly insisted that the 250 GB cap has NOTHING WHATSOEVER to do with the FCC’s network management decision. Even though this is true, it is odd that Comcast did not even try to blame the FCC for “forcing it” to cap broadband capacity.

None of this, of course, is necessarily any evidence of any wrongdoing or any anticompetitive intent. Comcast may just have good little lawyers who, like all lawyers (and I speak as one of the trade) are exquisitely precise when draftng legal filings and did not want the FCC (or any of the rest of us) to take them to task for not including the 250 GB cap in the filing. All perfectly innocent and perfectly legitimate — even perfectly likely.

But I’m still left wondering: what exactly does count toward the cap? Does Comcast include its own video on demand content, say? Or its own online content? What about partnerships and deals? Any “content partners” avoid counting toward the capacity cap? On what terms? Because the 250 GB capacity cap is not part of Comcast’s “network management practices” that it will implement in response to the FCC’s August 1 ruling, Comcast does not have to tell us. I suppose the FCC could order Comcast to tell us, but that is arguably a whole ‘nuther proceeding and Comcast is well positioned to argue against the FCC or anyone else engaging in a “fishing expedition,” especially when Comcast is doing its best to comply with the FCC’s Order.

Oh well, life is filled with mysteries, and they rarely get solved in an hour even by rumpled fellows in raincoats. Still, its just one thing that bothers me. Ah well.

Stay tuned . . . .


  1. Comcast might be saying that the 250 GB disclosure as a threshhold for “Excessive Use” is an added threshold to a previous practice of identifying their top 1000 users.

    Normal consumers were totally blind to knowing how much bandwidth the 1,000th user would use any given month. So, the Florida AG settlement was that Comcast would ALSO give a measureable amount considered as excessive. But the practice did not change with that disclosure. The Florida AG settlement stipulates that BOTH THRESHOLDS, the previous and the new.

    The settlement talks about the previous disclosure, “When consumers asked Comcast to specify a level of bandwidth usage above which they could not go, Comcast did not provide consumers with a specific bandwidth usage limit, stating that the consumers’ service would be at risk if they remained among the top 1,000 bandwidth users and directing them to the AUP and frequently asked questions explaining the AUP’s excessive use policy.”

    The settlement later couples both the old, vague, disclosure (“top 1,000 bandwidth users,” told to customers asking Comcast to specify) and the new threshold, “Comcast may continue to notify any residential high speed Internet service subscriber whose bandwidth usage use exceeds the Threshold (as determined by Comcast in its sole discretion) that the subscriber’s service may be, or will be, terminated as the result of excessive use. However, no residential high speed Internet service subscriber shall be notified of a breach of Comcast’s excessive use restrictions unless the subscriber’s bandwidth usage exceeds the previously disclosed Threshold.”

    So part of the distinction might be within those facts, because Comcast might be saying that there’s been no material change in policy since only the top 1,000 users are affected both before and after the settlement. But that would mean that the 250 GB number is artificially (but safely) low, and is not truly representative of that 1,000th user’s bandwidth consumption. Because if it wasn’t low, then there would be the distinct possibility that the number contacted in any particular month would be less than a thousand.

    From monitoring reports on consumer sites, my take prior to the 250 GB settlement had been that the customers using something north of 400 GB have been the customers called over the past 12 months or so, but not everyone calls in, so perhaps 350 GB at the lowest.

  2. <i>a bigger pair of beitzim g’dolim </i>

    A bigger pair of big balls? Surely from the department of redundancy conservation and maintenance division…

    Anyway, the 250GB certainly doesn’t include the television bits, even though they are delivered over the same infrastructure as internet services… and constitute an overwhelming majority of the usage.

  3. Just to clarify…
    ComCast told the FCC that a Sandvine server runs over an entire CMTS (each with ~4000 households) or even MULTIPLE CMTS (Cable Modem Terminal System).
    BitTorrent disruption occurs if there is just ONE person running BitTorrent among those 4000-8000 households seeding ONE torrent containing a single file and they happen to have >8 total connections, EVEN IF NONE OF THOSE CONNECTIONS ARE UPLOADING ANYTHING!

    ComCast is not even trying to meet the demands of their customers with this action. The crippling occurs even when the local network is not overloaded, even for low-traffic customers, and even when the traffic is legal. And occurs virtually 24 hours a day, 7 days a week.

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