Tag: comcast

I Suggest Giving Comcast What It Asks For . . . . Heh, Heh, Heh . . . .

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As the FCC’s examination into our complaint against Comcast winds down, with what looks like a win for us (although with an opponent like Comcast, I am not going to celebrate a win until after the order is voted), Comcast has increased its efforts to woo McDowell and Tate with a show that “the market” will magically cure all ills by cutting a non-aggression pact with Vonage and a new ex parte filing listing all the wonderful things it has done since the Commission put our complaint out on public notice, which is an obvious sign that no regulatory action is necessary since it is merely coincidence that Comcast (and other broadband providers) have been scrambling with ever more serious urgency as the resolution of the complaint moves closer. Ah Comcast “Change we can believe in until all you stupid regulators go away and we can get back to crushing folks like insects beneath our fiber-coax heel.”

More of interest to us legal (and less credulous) types, Comcast filed a lengthy rebuttal to Marvin Amori’s magnum opus on Commission jursidiction. Marvin’s piece was, of course, a response to the Comcast filing after the Boston Hearing, that asserted the FCC had no authority to sanction Comcast or regulate Comcast’s broadband in the first place. Mind you, Comcast told the a California district court otherwise, and got a stay of the pending class action for blocking bittorrent as a consequence. But the first lesson of law school is that consistency is only a virtue if it serves your client. In any event, this most recent filing (which has not yet shown up online for me to link to) is therefore either the rebuttal to FP’s reply or merely the Nth go round in a “permit but disclose” proceeding.

This is reflected by Comcast’s argument, which largely rehashes previous arguments about the limits of Commission authority and whether Comcast had proper notice it could be subject to a civil complaint and civil sanction. Fair enough. Time now for the FCC to decide and then on to the D.C. Circuit. That’s what process is for, to get the arguments out so we can get a judgment and get on with our lives.

But Comcast does raise one new argument, and an intriguing one at that. And ya know, I think the Commission ought to give it to them. Heh, heh, heh . . .

Why am I chuckling? See below . . . .

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Today on Telecom Mythbusters: FCC Ancillary Authority in Comcast/BitTorrent

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Cable gets a lot of mileage out of repeating things over and over until folks believe it’s true. Today on Telecom Mythbusters I’d like to focus on the question of “ancillary” authority and regulating broadband. The cable guys generally circulate two myths about this.

1) Ancillary jurisdiction by the FCC is an exceedingly rare, wacky, way out thing and the fact that net neutrality advocates even want to rely on it shows how way out there and kooky it is.

2) The D.C. Circuit has been busy trimming back ancillary jurisdiction so that it really doesn’t exist anymore. Specifically, the D.C. Cir. 2005 decision in American Library Association v. FCC, 406 F.3d 689 (D.C. Cir. 2005) (and, to a lesser degree, MPAA v. FCC, 309 F.3d 796 (D.C. Cir. 2002) worked some kind of mojo against the expansive grant of power by the Supreme Court in United States v. Southwest Cable, 392 U.S. 157 (1968) and the Supreme Court’s explicit statement in Brand X so that the FCC cannot regulate broadband access and prohibit Comcast from targeting specific applications such as BiTtorrent under ancillary jurisdiction. A sub-myth of this is “Title I cannot be the source of authority on its own.”

Marvin Ammori, General Counsel of Free Press, has written a stunning tour de force rebutting these arguments. The 100+ page filing masterfully traces the FCC’s authority under Title I and in this particular proceeding. But for those who don’t want to read through the whole thing, I will give my own take below.

I must once again warn readers that this will be a breathtakingly dull review of applicable case law, along with an examination of FCC precedents and does not go to the juicier merits of policy (not that I expct this to stop the Brett-bot from his inevitable comments). If you do not find legal minutia fascinating beyond words, if you do not thrill at the discussion of the subtle differences between a “Telecommunications Service Provider” and a “Common Carrier,” then for God’s sake, turn back now! Lest your brain dissolve into tapioca pudding from the awesome power of legal analysis unleashed.

(and for Brett: Blah blah blah evil blah blah Free Press blah blah MAP blah blah Ginger)

Otherwise, to see both myths BUSTED, read more below….

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It's Nice WhenThe FCC Listens — Sorta. Why I like The Proposed Resolution Of Comcast's Complaint Against Verizon But Why Some Of It Makes Me Uneasy.

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Back in February, I blogged about Comcast’s complaint against Verizon for its “retention marketing” practices. That’s Verizon’s practice that, when they get a request from another carrier to terminate voice service and transfer the phone number of a customer who is switching from Verizon (a practice called “porting” the number), they make one last run at trying to persuade the customer to stay. At the time, I observed (as I have for well over a year now, since I first made this argument at the at the Federal Trade Commission’s 2007 workshop), that if we are going to rely on competition, then we cannot have rules that privilege one side over another. To cancel video service, you have to call the cable operator, who then gets a last chance to pitch you hard to stay and makes it as difficult as possible to terminate service. But to change telephone provider, the cable company can ask the telco provider and the telco provider isn’t allowed to try to keep the customer — but must wait to pitch the customer until after the customer has already switched. That’s crazy. It needs to be consistent, or it puts the telcos at a serious disadvantage against the cable cos.

Well, back in April, the Enforcement Bureau issued a recommended decision that adopts this same argument. (I’ve been a shade busy, or would have blogged on this earlier.) It strongly recommends that the Commission commence a notice of proposed rulemaking designed to harmonize the rules for switching video and voice. No surprise, as this also tracks a Verizon Petition for Declaratory Ruling — as noted by the Bureau in a footnote.

Needless to say, I wholeheartedly approve of such harmonization, having supported this approach for well over a year. So why does the recommendation make me uneasy?

Because of the legal reasoning around the facts of the instant complaint. The Bureau recommends a finding of no violation because number porting is not a Title II telecom service and cable providers offering voice over IP (VOIP) are not providing Title II services. Which means that the FCC can flit back and forth between Title I and Title II at will, depending on its policy needs of the moment. It also means that Title II telecommunications service has now been reduced to only the voice component of plain old telephone service. And even critical elements of POTS, like managing the phone number systems, no longer count as telecommunication services under Title II.

I’m even more queasy about this because it is probably right under the enormous deference shown to FCC definitional hair splitting thanks to the combination of the Brand X decision and the D.C. Circuit’s decision on CALEA in ACE v. FCC. Well, Scalia warned the Brand X majority, but they didn’t listen. And Michael Powell, by trying to put broadband services beyond the reach of FCC regulation, ended up enormously expanding the power of the FCC to regulate services on a whim.

More on what I’m talking about and what this means for the future (if adopted by the Commission) below . . .

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D.C. Cir. to Comcast: “Making You Obey The Law Is Not A 'Vendetta.'”

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When an industry challenging agency action loses the sympathy of the D.C. Cir., it is a good sign that someone overreached just a tad. In apparent preparation for the The Big Cable Show in New Orleans this week, the D.C. Circuit issued this opinion denying Comcast’s insistence that it deserves a waiver of the FCC’s cable set-top box interoperability rules.

The case actually has an interesting precedential aspect I shall discuss below, but the primary reason I am noting it is because this is the first in a series of cases in which Comcast and the rest of the cable industry have actually pleaded that they should be excused from the law because enforcement is all part of an evil vendetta by Kevin Martin against the cable industry. Really. Because while people may accuse Hilary Clinton of having a “sense of entitlement” about the Democratic Nomination, she has the humility of a saint with zero self-esteem compared with the ravening sense of entitlement of the cable industry.

Mind you, the cable industry won won so much for so long at the FCC that a Chairman willing to enforce the law against the cable industry, with 2 other Commissioners willing to vote with him, is quite the shock to the system. And of course, when you have a paid chorus of wholly owned subsidiaries in Congress and captive industry press (combined, I’m sad to say, with a boatload of easily manipulated public interest groups that should know better but hate Kevin Martin for other reasons), it becomes easy to believe your own press releases. Which is why not merely the cable industry, but their allies as well, have started to put some genuinely stupid and insulting things in their filings that make you shake your head and go “whoa! I can’t believe they actually said that!”

And neither could the D.C. Cir. Not only did the panel hearing the case dryly reprimand the cable industry a few times, but they gave Comcast ‘n friends a very thorough bitchslap in the opinion.

More fun details, and the actual useful legal point, below . . . .

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Yet More Proof That Comcast (and Cox) Are Deliberately Blocking BitTorrent; I Await the Whacky Weasel Words To Come.

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There are those still clinging to the desperate hope that somehow critics of Comcast’s “network management” policy of “delaying” BitTorrent packets “only during peak congestion periods” will be discredited. These folks have therefore wasted much time and energy calling those of us who filed the Comcast complaint all manner of nasty names, made sneering and condescending comments about Robert Topolski’s qualifications and the accuracy of his tests, and generally behaved like total obnoxious gits. So you will forgive me if I once again channel my “inner Cartman” and provide these folks with some bad news.

The Max Planck Institute for Software Development (MPI) has just released major study showing that Comcast and Cox Cable engage in major blocking of BitTorrent traffic regardless of network congestion levels, Robert Topolski and Jon Peha are right, and George Ou needs to shut the [bleep] up with his pathetic whining. Oh yes, and Ou also needs to get over his belief expressed at the Stanford FCC hearing that the reset packets could be coming from some mysterious source other than Comcast. Unless George is going to express a belief in the “reset packet faerie,” who sprinkles forged reset packets over good little networks to keep them safe from bandwidth hogs (which explains why this constant “leakage” only happens to Comcast and Cox), it’s time to face the reality that Comcast (and apparently Cox as well) really are using forged reset packets, deliberately, and all the time, just like we said they were.

Knowing, however, that folks like Ou (and paid flacks such as my friend and sparing partner Scott Cleland) are as incapable of admitting error as a certain Decider-In-Chief, I eagerly await the whacky weasel words that will inevitably follow. Will it be hand-waving technobabble? Ad Hominem attacks, cheap rhetorical tricks, and endless hair-splitting about definitions or ‘what I actually said was blah blah blah’? An effort to brush past this by proclaiming “this was never really about whether there were WMBs (weapons of mass BitTorrent blockage), this was about freeing the good customers of Comcast from the oppression of Al Qeda bandwidth hogs that use 90% of the capacity?” Another “expert study” that tries to cast doubt on Max Planck Institute (MPI) study? Or perhaps some delightful combination of all of these? The heat will be on!

A bit more analysis and a lot more snarkiness below . . . .

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And People Ask Me Why I Don't “Trust the Market . . . .”

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From recent headlines:
Now that the FCC hearing in Standford is over, Comcast had dumped the idea of a consumer “bill of rights” for consumers. Instead, apparently picking up on Commissioner McDowell’s confusion over ICANN and how it works, Comcast has announced it is joing the Distributed Computing Industry Association (DCIA). While purportedly eager to include us regular folks in the dialog, consumer interests will not be represented in the initial discussions.

Comcast also is looking at bandiwdth caps, but that’s in addition to “managing” p2p, not instead of managing p2p.

Meanwhile, Earthlink is apparently walking away from Wireless Philly, and may simply shut the system off unless the city buys it out.

And folks ask me why I don’t “trust the market” when I am skeptical that big companies will stick by their commitments….

Stay tuned . . . .

My Testimony From Today

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Well, that was fun. I reprint my testimony as prepared, not as delivered. I also cut a very insider joke. I’d planned to start:

“Mr. Chairman, I understand that this is the open Commission meeting, so it is perhaps no surprise that we are running an hour late. Also, as I have not had time to complete this testimony, I ask for editorial privileges.”

But no one off the podium was likely to get it.

[Editorial note from John (to help search engines and any random Wetmachine readers who stumble upon this): This post concerns Harold Feld’s testimony at today’s FCC hearing at Stanford University.]

Stay tuned . . . .

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Comcast /BitTorrent Update: Important Filings by Topolski, Peha, and Ou (and some analysis by yr hmbl obdnt).

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Most folks do not monitor the day-to-day filings in the Broadband Practices Notice of Inquiry, Docket No. 07-52, the proceeding which has become the open docket part of the regulatory discussion on Comcast’s treatment of p2p uploads. Lucky them. But the sifting of this endless stream of regulatory filings has yielded some rather important nuggets of gold in the last few weeks that deserve much greater attention for anyone who cares about the substance of the debate. As I discuss below, three recent filings deserve particular attention:

a) Robert Topolski demonstrates that Comcast blocks p2p uploads at a remarkably consistent rate, at any time of day or night when the test takes place, and regardless of the nature of the content uploaded. This is utterly inconsistent with Comcast’s stated position that it “delays” p2p traffic only during times of peak network congestion. Topolski adds some other interesting details as well.

b) Jon Peha, a Professor of electrical engineering and public policy at Carnegie Mellon, provides his own explanation why Comcast’s characterization of its “network management practice” as merely “delaying” p2p uploads and its claim that this practice is in accord with general industry practice is nonsense.

c) In defense of Comcast (or at least, in opposition to any government action to restrict the ability of ISPs to target p2p traffic specifically), George Ou filed this this piece on how bittorrent and other p2p applications exploit certain features of TCP, a critical part of the protocol suite that makes the internet possible. Ou argues that as a result of this feature of p2p, heavy users of these applications will always be able to seize the vast majority of available bandwidth on the system to the disadvantage of all other users. Accordingly, the FCC should acknowledge that it is a “reasonable network management” practice to target p2p applications specifically as opposed to heavy users or all applications generally.

My analysis of each filing, and something of a response to Ou, below . . . .

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Comcast to Illinois: I loves Me The Market Power!

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As reported on BroadbandReports.com, Comcast has greeted former Insight customers transferred to Comcast as part of unwinding a partnership with a 6% rate hike. Thanks to all the delightful cover given to Comcast by Congressional Republicans, who declare that all is “A OTAY” in Cableland, the Comcast guys are no longer even pretending that the rise in rates has anything to do with cost. Rather, as Comcast rep Libbie Steh told the Springfield Journal Register in a rare attack of honesty: “increased costs are not a factor this year.” Rather:

“Comcast periodically reviews prices and adjusts them to reflect what’s in the marketplace,” Stehn said.

More below . . . .

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For the Clueless Among Us: Why Comcast Paying Folks to Attend FCC Hearing Is Wrong.

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I can’t believe I actually need to explain this.

Suppose Comcast made the following offer: If you vote “yes” on a ballot initiative we like (and agree to take a pocket recording device into the voting booth with you so we can have proof), we will pay you $50.

Most of us would not only say that this is wrong, we would have no problem understanding why that’s a crime. We would not be persuaded by Comcast defending itself by saying “well, Free Press and other organizations have campaigned in support of the bill and are calling people to ask them to go out and vote — they even provide free rides to people likely to vote for the initiative. That’s just like paying people directly to vote the way we want.” In general, we recognize a difference between organizing ad trying to persuade people to vote the way you want and actually paying people for their vote (and wanting a receipt).

Which brings us to Comcast’s exercise in seat packing at Monday’s FCC Hearing in Boston.

More below . . . .

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