FCC’s Comcast Probe Could Spur Net Neutrality Regs

The Federal Communications Commission will investigate claims made late last year that Comcast blocked customers from using file-sharing services, specifically BitTorrent. FCC Chairman Kevin Martin made the announcement at the Consumer Electronics Show currently underway in Las Vegas.

The move came in response to a petition several consumer advocacy groups filed last year after The Associated Press alleged Comcast was interfering with customers’ file-sharing activities. The company masqueraded as users in order to interrupt P2P connections, according to the news agency.

Comcast denied the allegations and said it is cooperating with the FCC’s investigation.

Be Careful What You Wish For

The groups are hoping the FCC will rule that blocking P2P communications violates its Internet Policy statement, which guarantees consumers competition among providers, as well as access to content, applications and services. An FCC finding against Comcast would be a de facto net neutrality regulation.

Of course, a finding supporting Comcast’s right to monitor and control traffic on its network would have the opposite effect.

“The FCC doesn’t always investigate to find or to cite a company,” Jonathan L. Kramer, principal of Kramer Telecom Law Firm, told TechNewsWorld. “Sometimes they will do so to determine whether regulations are necessary at all — and I suspect that is part of what is going on [with the decision to investigate Comcast].

“If it determines there is a public policy issue at stake, it then moves to solve that problem by creating a new rule,” Kramer said.

Obscure SLAs

One facet of the issue is Comcast’s service agreement. Like most documents of its kind, it’s obscurely worded — designed to give Comcast as much wiggle room as possible.

“Comcast has a service agreement with customers that allows it to do a broad range of activities: store information about whom is communicating with whom, for instance; monitor where people are surfing; and monitor the system to make sure it doesn’t crash,” Kramer explained. “So there is a real question as to whether Comcast even did anything that it said it wouldn’t do in its service agreement.”

One argument the FCC investigation might settle, he said, is whether consumers can give up rights to net neutrality through such agreements. “This is an area where public policy doesn’t spell out where the concept of Internet neutrality overrides contract terms.”

Moot Point?

Even if the FCC decides in favor of the groups’ petition — an outcome that’s considerably in doubt — it won’t necessarily have an impact on regulations, argued Jerry Brito, a senior research fellow with the regulatory studies program at George Mason University.

“The FCC might find that Comcast’s practices are contrary to its Internet Policy Statement, but that policy statement is not enforceable,” Brito told TechNewsWorld. “Net neutrality is not the law. Not yet, anyway.”