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 . . . [Read More!]

There's been a lot of back and forth over whether letting broadband providers lock up content, or content providers lock out ISPs, is a good thing or a bad thing. And now, ESPN360.Com is going to kick off the fragmentation games and let us all find out.

It is a fine old Republican free market anti-deregulatory tradition to deregulate critical infrastructure and hope for the best, pooh-poohing doomsday predictions as ignorant exaggerations and fear mongering by business-hating regulation-loving quasi-commies. And since this philosophy worked so well with our financial sector, we have now moved it to the next major engine of the economy — broadband.

I am so excited! For those who have developed a taste for Lehman Bros-type thrill rides, the ESPN360.com deal will bring back fine memories of your first subprime derivative. You (and the rest of us along for the ride) can look forward to the thrill, the excitement, the dramatic highs and lows of playing high stakes roulette with our digital future. True we've lost our mortgage money (literally and metaphorically) playing “follow the Subprime queen.” But don't worry. As any economist will tell you, the combination of a lack of information, high transaction costs, complex interrelated markets, and poorly understood network effects is just tailor made for that wild west anything goes atmosphere that made all them miners rich in the Sacramento gold fields!

Bet our critical infrastructure? How can we afford NOT TOO!!!

Details below . . . [Read More!]

Well, after saying that while Comcast might fully comply with the FCC's requirement to report on September 19, but I expected them to play games instead, Comcast handed me a very pleasant surprise. Not only do they appear to have made a thorough disclosure of their current network management practices and their future network management plans, not only have they submitted the required compliance plan with benchmarks, but they actually served me with an electronic copy. As I pointed out last time, this last was not required but is generally good form.

The downside, of course, is that I must go and actually read the filings. That nasty suspicious nature they beat into me at law school rears its ugly head again. Still, it's a “problem” I enjoy having so I can't really complain.

But it looks like Comcast has decided that its best interest lies in complying and getting this behind them (with the exception, of course, of the Petition for Review). While I am by no means ready to lower my guard and drop my own Petition for Review (that nasty suspicious nature again), I give credit where it belongs. At first glance, Comcast appears to have complied as thoroughly as I could wish. Assuming this bears out after proper verification, I hope I am pleasantly surprised a second time when Comcast complies on schedule.

Stay tuned . . . .

Back on August 20, the FCC released its Order resolving the complaint against Comcast for blocking P2P protocols. As part of the remedy, the FCC ordered Comcast to provide a full report on its current “network management practices” within 30 days, along with a transition plan for how it intended to manage traffic after it discontinued its current practices. The FCC then invited Free Press and anyone else interested to keep a sharp eye on Comcast.

Comcast has sworn up and down that it will comply with the FCC's Order and it is only appealing in the D.C. Circuit as a matter of principle. I, nasty cynical public interest dude that I am, so doubt this noble intention that i have filed a law suit of my own to get the FCC to clamp down on Comcast now. So, here we are at last on September 19. What does Comcast do?

Comcast has a range of options. Comcast could refuse to comply, forcing the FCC to take action and potentially giving Comcast grounds to go to the D.C. Circuit for an emergency stay. I think that pretty unlikely, given what a big deal Comcast has made about complying.

Comcast could fully comply. But, to paraphrase Arlo Gutherie, that isn't very likely and I don't really expect it.

What I expect is for Comcast to file something incomplete, possibly with a request for the FCC to protect its proprietary data. But more likely they will file something that will be just enough compliance to present Kevin Martin with a nasty political choice: Does he enforce the letter of Order and go in guns blazing against Comcast, knowing that Comcast will make great political hay of his supposed “vendetta” against them? Or does he let Comcast thumb their noses at him and — in addition to the humiliation factor — have public interest groups question whether he really intend to enforce that end of the year deadline and thus call his hard-won consumer protection credentials into question? The situation is further complicated by the internal politics of the Commission. Whichever choice Martin makes (and he gets to make it himself, since it is an enforcement action and not subject to a vote of the full Commission), it is almost certain that two Commissioners will call him on it publicly. McDowell and Tate are almost certain to regard whatever fig leaf Comcast files as sufficient, whereas Copps and Adelstein will likely raise a hue and cry if Martin lets Comcast get away with filing an incomplete report.

As an aside, I also expect Comcast to file after close of business and to do so by hand rather than electronically, so that the content is not immediately accessible. I also do not expect to get a service copy, despite being counsel to complainants. That's perfectly legal of Comcast, as it can take the position that this is a report to the FCC and not a pleading that needs to be served on the complainant or complainant's counsel. But it does mean I don't expect to see what Comcast actually filed until sometime next week.

Happily, I put my trust in the advice of the Bible and do not put my trust in princes — or FCC Commissioners. In this case, the pending Petition for Review gives us a certain leverage, and Comcast will have to consider that it will have a tough time arguing my Petition is moot and pointless when they are not actually in compliance with the FCC's Order.

Perhaps I misjudge Comcast. It would certainly make my life easier if they just complied and filed something open that detailed their past practices and explained how they planned to go forward (including details of he 250 GB cap). In particular, I very much want to know if Comcast intends to exempt its own content from the 250 GB cap. That would be rather anticompetitive, and without any actual rational connection to the stated need to reduce last-mile congestion. Comcast originated packets running from the head-end to the subscriber take up as much capacity as non-Comcast originated packets.

See, there goes that nasty and suspicious mind of mine again. Still, I hope I'm wrong and Comcast comes clean.

Stay tuned . . . .

Yesterday, the Panel on Multijurisdictional Litigation (PMJL) awarded the Comcast-BitTorrent Appeal to the D.C. Circuit. Obviously I would prefer to be elsewhere for the same reason Comcast wants to be there (despite being actually located in the Third Circuit), i.e. the D.C. Circuit's reputation as being a pro-industry anti-regulatory bunch of judicial activists who don't give a squat about actual case law. Still, since some of our strongest precedent is from the D.C. Circuit, and the D.C. Circuit has surprised Comcast in the past, I am not exactly weeping in despair here.

In a portent of things to come, Comcast also filed a challenge to our standing with the PMJL. I expect this to be renewed in the D.C. Circuit once the cases are consolidated.

Anyway, for those following the sequence of events, the Ninth, Second and Third Circuits will now transfer the cases to the D.C. circuit, which will consolidate them. Folks will have a chance to intervene in either or both sets of cases, and parties may also try to file other motions (e.g., motion for stay, motion for expedited trial). Anyone involved in the matter below (or having an interest impacted by either our Petition or Comcast's) has a right to intervene — either on the side of the FCC or on the side of Petitioner. Also expect cross intervention where parties who like the FCC's decision in the Comcast-BitTorrent case intervene in support of the FCC and against Comcast and in support of us and against the FCC. Or in support of Comcast in the Comcast appeal and in support of the FCC in ours. PArties may also file for permission to appear as amici for one side or another.

After the time for interventions passes (which I am too lazy to calculate at the moment), and the court resolves any pending motions, the court will set a briefing schedule. It is too early to guess the time frame until we see what motions parties file (other than interventions).

Stay tuned . . . .

As all the world knows by now (the world that follows this anyway) Comcast has imposed a new bandwidth cap, limiting downloads to 250 GB/Month. Unsurprisingly, some folks blame the FCC's recent decision on prohibiting Comcast from blocking BitTorrent and other p2p applications as pushing Comcast to make this change, although Comcast itself has repeatedly stressed that it was not compelled to do this and planned to do this anyway so no biggie.

What the world did not know, but I thank PK's Art Brodsky for finding, is that Comcast agreed to clarify its cap as part of a settlement with the Florida Attorney General's office. As some of us have observed for awhile now, Comcast long had a policy of cutting off “bandwidth hogs” for exceeding a capacity cap while refusing to say what the actual capacity cap was. Well, on July 29, Comcast agreed to make clear their capacity cap and pay $150K in fines.

I highly recommend reading the full terms of the settlement — particularly the factual background which Comcast has agreed is true (without, of course, admitting wrongdoing). Of greatest import, until it announced the 250 GB/month cap, Comcast did not have an actual hard and fast cap. Rather, according to Paragraph 5 of the factual stipulations, Comcast simply knocked off the highest 1000 users regardless of their actual bandwidth usage or geographic location. Comcast is almost certainly telling the truth when it says the highest 1000 users were atypically intense bandwidth consumers. duh. Of course the top 1000 out of 14.4 million will be at the high end of the curve.

No, the more interesting question is what the hell kind of a system is it where Comcast simply goes after the top 1000 users no matter how much they actually use, and why Comcast would adopt such a policy if it wants to reasonably manage network congestion? It seems rather . . . inefficient and arbitrary. Unless, of course, one is trying to save money running a crappy network and generally discourage high-bandwidth use.

Apparently, the Florida Attorney General also thought a policy that simply shut off the top 1000 users every month regardless of actual use or congestion did not meet proper standards of consumer protection or “reasonable network management.” The settlement requires Comcast to state clearly what it means by “excessive use of capacity” in its acceptable use policy (AUP). That's it (as well as paying $50K for attorneys fees and other associated expenses to the AG for bring this action). Comcast has total discretion to set a limit or have a limit or change a limit, as long as there is (a) an actual fixed limit, and (b) Comcast clearly communicates to its subscribers what that limit actually is. This is in line with the settlement reached last year between Verizon Wireless and the NY AG's office that Verizon would no longer advertise its wireless internet access package as “unlimited” but would provide a hard monthly cap.

Which explains why Comcast is not going around telling the world that it adopted bandwidth caps because of the big bad awful FCC and their wicked regulatory ways. They didn't. Rather, Comcast was using an even more ridiculous bandwidth cap the entire time, and they were required as a matter of consumer protection law in Florida to actually come clean with a real number so customers can find out what they are paying for and get full value for their monthly subscriber fee. It seems Comcast has sense enough not to play those kinds of games on something so easily verifiable. Good for them. Nice to see they learn from experience.

Stay tuned . . . .

So last Friday, Media Access Project filed 3 Petitions for Review asking the federal courts to order the FCC to order Comcast to stop blocking p-2-p immediately. None of this wait until the end of the year crap. We filed on behalf of Vuze.com (in the Ninth Circuit), Consumers Union (Second Circuit), and PennPirg (a member of Consumer Federation of America) (Third Circuit).

Comcast, for its part, filed in the D.C. Circuit. I have not heard of any other filings, but it is possible.

More details, and what comes next, below . . .

[Read More!]