[First, a rather important point to Richard Bennett and anyone who may be confused. This blog is my own. It is not a “Media Access” blog, and it does not represent MAP policy. I very deliberately do not show this stuff to anyone at MAP for prior approval before I write it. This is me personally sounding off. Got it? This is in addition to my day job. (Although my wrath at this mischaracterization is tempered by his describing this blog as “popular.”)]

There must be something in the air that has turned Comcast from a fighter to a lover. Apparently, Comcast and BitTorrent have kissed and made up, Brian Roberts has stood barefoot in the snow beneath Kevin Martin’s window at Canossa, and all is now supposed to be well in the world. Nothing to see here, move along, these aren’t the droids we’re looking for, and once again the magic of the market solves everything.

I would have written earlier, but I was having a flashback to when AOL Time Warner committed to creating an interoperable instant messenger. Then I was flashing on when AT&T Broadband and Earthlink “solved” the original open access problem by negotiating a contract and thus proving that “the market” would guarantee that independent ISPs would be able to resell cable modem service just like they were reselling DSL. Then I woke up vomiting. I always have a bad reaction to whatever folks smoke to conclude “the free market solves everything” especially when (a) this was the result of a regulatory two-by-four applied directly to Comcast’s scalp, repeatedly; and (b) nothing actually happened except for a real and sincere comitment to yack about stuff — at least until the regulators go away. Still, like Lucy and Charlie Brown, there are some folks for whom this just never gets old.

So while I’m glad to see Comcast forced to play the penitent, confess wrongdoing, and appear to give a full surrender, and while I generally like the idea of industry folks and ISPs getting together to actually do positive stuff on internet architecture issues, I think wild celebrations from the anti-regulators and the expectation that we can declare “Mission Accomplished” and go home is a shade premature. Indeed, the only people who believe this announcement actually solves anything are — by and large — those who didn’t believe there was a problem in the first place. I believe the technical term for such folks is “useful idiots.”

My further thoughts below….

First, a few rather important points.

There is a huge difference between BitTorrent the application, which is a peer-2-peer application for moving large files. And BitTorrent, Inc., a company that makes money delivering legal content via BitTorrent the open source application.

We have two items before the FCC, a complaint and a Petition for Declaratory Ruling. Neither one is made moot or otherwise invalidated by the Comcast-BitTorrent business, despite the fact that Comcast’s primary motivation in this little charade/kabuki play is to put this whole business about degrading traffic and then getting caught lying about it behind them and move on without having any sort of regulatory accounting. Because — and I know this will shock and astound many — the FCC is not supposed to be about refereeing industry disputes. It IS supposed to be about protecting my rights as a citizen and subscriber to broadband services AND about protecting the public interest. Neither of which is resolved by having Comcast pick one company that does peer-2-peer, cutting a great deal for good little boys who behave and are willing to play along, and then waving that in front of credulous regulators or free market cheerleaders to declare a great big policy “Mission Accomplished!”

Let us consider the disclosed terms of the agreement, or “non-deal” as Rafat Ali put it. According to BitTorrent, Inc., President Ashwin Navin:

1. Network management will be protocol agnostic & disclosed to consumers… and there will be no more connection resets.
2. Network architecture will be optimized for media delivery
a. Comcast is increasing capacity overall and particularly for upstream traffic (good for p2p)
b. Bittorrent is developing new client features to optimize for ISP networks (eg, cache discovery protocol)
c. Comcast/Bittorrent will jointly investigate a new network architecture for the benefit of our users (servers in the comcast network which will accelerate file transfer rather than impede it)
3. Openness: We will publish our findings and optimizations in open forums for the benefit of other ISPs and application developers… including our open source Bittorrent implementation

All of which is very nice, although as Om Malik notes, BitTorrent, Inc. is a relatively minor player in the P2P scene and success of these commitments therefore hinges on bringing in more significant players like Vuze. Furthermore, according to the rather fawning puff piece of an interview Declan did with Comcast’s Joe Waz, Comcast will try to get all this stuff ready for “phase in” before the end of “calendar Year 2008.” So, even in the best of scenarios, we’re looking at another 9 months or more of “traffic management.” And, of course, there is no guarantee that Comcast and BitTorrent, Inc. (or any other company) will actually reach agreement on these goals.

Those of us who have been down this road before, on the video side as well as on the ISP side, will recognize this as simply using an old incumbent cable mind trick — going back to the days when John Malone ran TCI and used this carrot and stick hold off credulous regulators and break up opposition among independent programmers. If the pressure gets to much, start picking off a few independents and cut some deals, promise as little as possible but make a big deal about it, pressure the other independents to jump on the band wagon or risk getting cut out, then wait until the regulators wander off with the contented smiles on their faces that come from a deeply satisfying hand job.

(Heck, you can see this movie playing now in the independent cable channels, where the major incumbents are blocking independents like WealthTV while cutting deals with Hallmark and getting the credulous and the Free market faithful to shout “Amen!” It’s worse than Charlie Brown once again trying to kick the football only to land flat on his back as Lucy yanks it away. It’s Charlie Brown lying flat on his back but convincing himself he actually did to kick the football.)

But even if we take the deal at its word, it still boils down to nothing more concrete than an agreement to talk between some companies and possibly have a standards process. That’s nice and I’m all for that, but it hardly eliminates the need to keep a watchful eye on things or eliminates the need to have the FCC declare whether deliberately targeting an application is a “reasonable network practice.” For one thing, you will pardon me if I worry that a collection of dominant ISPs and a handful of developers just might be a little bit tempted to develop a standard that rewards those companies that come in and play ball with Comcast while punishing folks trying to develop applications without Comcast’s consent. And what the heck does “network architecture will be optimized for delivery of video” mean anyway? At the expense of what?

For another, and to get back to the main point, this isn’t just a question about Comcast and bittorrent uploads. That lies at the heart of the issue since the FCC insists on doing this by adjudication rather than making rules. But there are an endless number of applications, and more coming into existence every day. Is it reasonable network management for a broadband service provider to target these applications (or any applications)? Can AT&T target rival VOIP applications as a means of managing its network? Can Cox target gamers if they begin to tie up the system with rich, time sensitive applications? The issue remains live whatever Comcast does about the particular matter here, and their contrition can no more undo their past bad conduct than can CBS’ promise of future good behavior erase the indecency fine for the Jackson/Timberlake “wardrobe malfunction,” or Fox’s adoption of a five second delay eliminate Nichole Ritchie’s “fleeting utterance.”

Responses among the Commissioners were somewhat predictable based on ideology, with one or two surprises. Commissioner Copps pointed to Comcast suddenly reversing course, admitting that it had in fact degraded p2p traffic, confessing that it had architected its network to degrade BitTorrent uploads, and promising to work on doing better as proof that government needs to closely scrutinize things and be willing to intervene when necessary. Adelstein had a rather brief statement reserving judgement until the FCC got more data. By contrast, Commissioner McDowell managed to somehow take this as proof that the free market solves eveyrthing, because not only will this deal resolve any issues (to the extent any issues existed at all), of course Comcast was cutting a deal with a modest player and promising to do everything asked of it for reasons having nothing whatsoever to do with the pending FCC complaint and a very real possibility of legislative action. Meanwhile, Commissioner Tate, apparently having drunken the waters of the IP Mafia, continues to call for everyone to work on the “problem” of policing content.

This leaves us with Chairman Martin. Unsurprisingly, I find his key points spot on, specifically:
1) So Comcast confesses that it has, in fact, been degrading traffic and targeting bittorrent, even though there are alternative traffic management techniques it could have used.
2) Comcast says they are still doing it, and gives no certain end date for when they will do it.

As long as Comcast openly admits it is still engaging in this sort of “network management,” and will for an indefinite period of time to come, the FCC has a responsibility to resolve the pending proceedings. It’s nice to see that the Chairman of the FCC understand that.

Stay tuned . . . .