Comcast Violated Agency Principles for Throttling BitTorrent – Commissioners

It may be a longer running case in the United States, but it’s now one step closer to finally being resolved according to an early report. Many suggest that the Comcast throttling case could be precedent setting.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The decision isn’t official, but according to the Canadian Press, there is a sufficient number of votes from commissioners to rule that Comcast should be punished for throttling BitTorrent.

For many located in the United States who use BitTorrent from anywhere between downloading the latest vidcast of Diggnation to downloading the latest Linux distribution or album releases on, for example, MiniNova’s content distribution feature all the way to the other end of the spectrum where it is used to download the latest release, the news may certainly be welcome.

An interesting part from the report:

“I continue to believe that is imperative that all consumers have unfettered access to the internet,” [Republican chairman Kevin] Martin said in a statement released early Saturday morning. “I am pleased that a majority has agreed that the commission both has the authority to and in fact will stop broadband service providers when they block or interfere with subscribers’ access.”

It’s interesting because it seems that there are officials in the United States that understands the general principle that ISPs should merely offer a general communication service instead of being able to control what goes on within their networks should free speech and culture remain in tact online.

What’s more interesting is how the comments loosely resemble what was said by a Swedish MEP when the first plans to disconnect internet users were launched in the European Union. From our previous report:

The new amendment says that the law needs “to avoid the adoption of measures running counter to human rights, civic rights and the principles of proportionality, effectiveness and deterrent effect, such as interruption of access to the internet.”

While the report from the US doesn’t make mention of civil rights, the resemblance lies in the fact that interrupting users internet services is not a good idea.

So what sort of punishment will Comcast face as a result of inconveniencing potentially thousands of its own customers?

The text of the order is not public but Martin has said it will not include a fine. He also said it will require Comcast to stop its practice of blocking; provide details to the commission on the extent and manner in which the practice has been used; and to disclose to consumers details on future plans for managing its network going forward.

It’s interesting that the term “blocking” was used instead of “throttling”. So whether or not the throttling practice can continue is unclear. Since there is no fine, it certainly appears, on the surface, that Comcast got little more than a regulatory dirty look.

Of course, there is no real way to tell for certain for the simple fact that the full report is currently not public. One can hope that the comments in this early report are conservative and really mean that Comcast’s BitTorrent throttling days are really over.

UPDATE: CNET is now reporting that the FCC may not have the legal authority to make the ruling stick – thus confirming that this may very well be little more than a regulatory dirty look. From the report:

There’s just one problem with the Federal Communications Commission’s plans: They may not be quite, well, legal. In other words, the FCC may not actually have the authority to make its ruling stick.

In 2006, Congress rejected five different bills, backed by groups including Google,, Free Press, and Public Knowledge, that would have handed the FCC the power to police Net neutrality violations. Even though the Democrats have enjoyed a majority on Capitol Hill since last year, their leadership has shown zero interest in resuscitating those proposals.

It’s true that the FCC adopted a set of principles in August 2005 saying “consumers are entitled to run applications and use services of their choice.” But the principles also permit providers’ “reasonable network management” and, confusingly, the FCC admitted on the day of their adoption that the guidelines “are not enforceable.”

Judging by this report, the FCC might not have any teeth to sting Comcast for throttling BitTorrent. One may wonder, what is going to stop Comcast from continuing it’s throttling practices?

Drew Wilson on Twitter: @icecube85 and Google+.

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