Comcast Unveils Its New Traffic Management Architecture

Late on Friday night, Comcast filed an overview of its new traffic management arrangements with the FCC. This is the long term replacement for its controversial practice of using forged TCP Reset packets to limit the use of peer to peer protocols.

The new system appears to be a reasonable attempt at sharing limited bandwidth amongst groups of users. Unlike TCP RST spoofing, it doesn't explicitly discriminate against some applications, and it doesn't threaten protocol developers with interoperability problems and uncertainty about network behavior.

Comcast's objective here is still largely to prioritize non-P2P traffic above P2P traffic. But the criterion they use is the amount of data a cable modem sends during each 15 minute period, which is a much fairer rule than examining the traffic protocol. The way deprioritization works is simple: high priority machines get to send data, and if there is any transmission capacity left over, the low priority machines get a share of that.

EFF is proud that our work helped to expose Comcast's misadventures in network management last year, and we're pleased to see Comcast returning to congestion management practices that are transparently disclosed and avoid protocol discrimination.

The new traffic management setup should not be confused with the 250 GB/month cap which Comcast announced last month; the two will exist side by side.

[Read the entire post]

Order Against Comcast Issued, FCC Credits EFF

The FCC has finally published its order (adopted on August 1) directing Comcast to stop blocking BitTorrent traffic. The 34-page ruling makes for surprisingly enjoyable reading, at least as FCC publications go. The order follows the basic outline that was explained by Chairman Martin in his statement on August 1, 2008. But there are some interesting additional tidbits:

• The FCC specifically cites and credits EFF's testing in discussing Comcast's BitTorrent blocking activities. And it also relies explicitly on evidence gathered by individual Internet users Adam Lynn, Jeffrey Pearlman, David Gerisch, Dean Fox, and Robert Topolski. The order concludes with this remarkable invitation: "We invite ... members of the public to keep a watchful eye on Comcast." And, as it happens, EFF is building the Switzerland network testing tool to help Internet users to do just that!
• The Commission dismisses Comcast's claim that it was merely "delaying" BitTorrent traffic as "verbal gymnastics," specifically finding that "the company has engaged in blocking." Glad to see we can put that semantic debate to rest.
• The FCC sets out a standard for reviewing discrimination undertaken in the name of "reasonable network management": the "practice should further a critically important interest and be narrowly or carefully tailored to serve that interest." According to the FCC, even if congestion management was "critically important," Comcast's methods were hopelessly over- and under-inclusive. The Commission cited EFF's testing on this point, noting that Comcast admitted to blocking BitTorrent seeding without regard to neighborhood congestion or user-specific bandwidth usage.
• Also in accord with the comments submitted by EFF, the FCC called Comcast out for its failure to disclose its practices to its customers, noting that "Comcast's first reaction to allegations of discriminatory treatment was not honesty, but at best misdirection and obfuscation."
• The FCC spends 12 pages justifying its regulatory authority to issue the order, invoking its Title I "ancillary jurisdiction" to regulate in the name of "national Internet policy" as described in seven statutory provisions, all of which speak in general terms about "promoting deployment," "promoting accessibility," "reducing market entry barriers," and the like. Reading this section of the order, one can't help but feel sympathy for Commissioner McDowell, who in his dissent worries that "under the analysis set forth in the order, the Commission can apparently do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment." If Comcast sues to overturn the order, you can be sure that this is where it will focus its attack.
• And now for the remedy. Quoting Ronald Reagan's mantra, "trust but verify," the Commission has ordered Comcast to do 3 things within 30 days:
  

  (1) disclose to the Commission [but not the public?] the precise contours of the network management practices at issue here, including what equipment has been utilized, when it began to be employed, when and under what circumstances it has been used, how it has been configured, what protocols have been affected, and where it has been deployed;

  (2) submit a compliance plan to the Commission with interim benchmarks that describes how it intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year; and

  (3) disclose to the Commission and the public the details of the network management practices that it intends to deploy following the termination of its current practices, including the thresholds that will trigger any limits on customers’ access to bandwidth.

So, while we continue to be worried about the future risk of regulatory capture of the FCC by large ISPs, and have our doubts about the Commission's authority to regulate the Internet, the order hits the nail on the head when it comes to analyzing what Comcast actually was up to.

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The FCC and Regulatory Capture

Earlier this month, Internet users welcomed the FCC's ruling against Comcast for interfering with BitTorrent uploads, celebrating the action as a victory for net neutrality. Reigning in Comcast's dishonest behavior was the right thing to do in this case, but many observers are worried that the FCC is establishing a dangerous habit of interfering with the Internet, especially since the FCC has a spotty history when it comes to serving the public.

For those looking for more background, a great panel discussion/podcast from the Technology Liberation Front explores the series of decisions that brought the FCC to the forefront of the net neutrality debate and covers why those decisions are unprecedented. Commenting on the FCC's action, law professor Susan Crawford writes:

The [FCC] is in completely uncharted waters, using this idea of 'ancillary authority' to carry out whatever it feels like. [...] Although in the short term condemning Comcast is certainly a good idea, the notion that case-by-case, wholly discretionary adjudications like this one are possibly a good idea for all aspects of internet policy is nuts.

But it is technology scholar and journalist David Robinson who reaches the root of the problem looming beyond the horizon: "[The Comcast decision] also preserves the Commission's ability to make bad choices in the future, especially if diminished public interest in the issue increases the odds of regulatory capture."

[Read the entire post]

FCC Rules Against Comcast for BitTorrent Blocking

On Friday, the FCC voted, 3-2, to punish Comcast for its surreptitious interference with BitTorrent uploads (a practice that EFF helped uncover and document in October 2007). The Commission adopted an order (text of which hasn't been released yet) finding that Comcast violated the neutrality principles set out in the FCC's 2005 "Internet Policy Statement." According to the statement released by FCC Chairman Martin, the order will require Comcast to disclose its practices and stop discriminating against BitTorrent traffic (Comcast, for its part, has already announced that it will be moving to different mechanisms to throttle high-bandwidth users.)

We're pleased that the FCC recognized that Comcast's behavior violated the Internet Policy Statement and could not be excused as "reasonable network management" -- we said as much in our comments to the FCC. We are particularly encouraged that the Chairman Martin specifically took Comcast to task for not adequately disclosing what it was up to -- for the free market to work, customers needs to know what they are buying.

But it's important to recognize that this is just the beginning, not the end, of the fight. The Commission made it clear that it intends to police this frontier of net neutrality on a case-by-case basis, responding to specific consumer complaints. In order to bring these kinds of complaints, however, concerned Internet users need more and better tools to detect ISP misbehavior. That's why EFF today announced the release of the Switzerland network testing tool, the second tool released by EFF's "Test Your ISP" project.

There is one aspect of Friday's FCC ruling, however, that seriously troubles us. Consider how the FCC got here. In 2005, without any authority or guidance from Congress, the FCC announced a "policy statement." Now, in 2008, it decided that it has the power to enforce the policy statement and announced an "enforcement framework" that will be applied to future complaints. Again, all this without authority or guidance from Congress. As Commissioner McDowell put it in his dissent from the Comcast order, "Under the analysis set forth in the order, the Commission apparently can do anything [to regulate the Internet] so long as it frames its actions in terms of promoting the Internet or broadband deployment." Can the FCC be trusted with that kind of power? Remember, historically, the FCC has been subject to "regulatory capture" -- in other words, over time, they end up doing the bidding of the very telecom giants they are supposed to be regulating.

So while there is a great deal to like about the Internet Policy Statement, and today the FCC appears to have come to the right conclusions about Comcast's behavior, what if the next "policy statement" turns out to be a disaster for net neutrality? After all, a polar bear makes a great bodyguard, until it decides to eat you.

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FCC Chairman Hints at Order Against Comcast

FCC Chairman Kevin Martin sent a signal today that the FCC may issue an order against Comcast in the wake of the scandal over their use of packet forgery to interfere with BitTorrent, Gnutella, and other Internet protocols.

EFF worked with Robb Topolski to run the first controlled tests of Comcast's RST forgery practices last year. We've been following the issue closely since then, and believe that Comcast's decision to switch to less discriminatory network management practices represented a victory for transparency, for an open network, and for common sense.

We are now waiting to see what precise steps the FCC decides to take. There is a lot at stake. On one hand, Comcast was clearly out of line. If ISPs decide that they can arbitrarily interfere with or degrade some of the applications that their users decide to run, they are giving themselves the power to veto or approve innovation on the Internet. Comcast was assigning
itself this veto power, and attempting to do so in secret.

On the other hand, we must be vigilant for unintended consequences from federal regulation of network management practices. Any rule that restricts the way the Internet can operate must be read upside down, backwards, and inside out to ensure that it won't turn out to prevent good engineering that nobody has thought of yet. We are also concerned that regulatory steps
by the FCC could stretch the limits of the Commission's statutory authority; we would feel more comfortable if Congress had clearly considered, allowed, and bounded FCC jurisdiction in this space.

Chairman Martin has indicated that he does not want to fine Comcast, but would order them to cease interference in a timely fashion, report on where and when interference has been occurring, and report on the details of their future traffic management plans. As specific outcomes, these are fair — and leadership to improve transparency is what we asked the FCC to provide — but the jursidictional issues will require careful analysis. The FCC is planning to vote on its actions on the 1st of August, and we'll follow up with more when there is precise language for an Commission decision.

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FCC Hearings at Stanford: Towards a Consensus on ISP Transparency?

Yesterday, the FCC held a second hearing in its investigation of Comcast's use of forged RST packets to interfere with BitTorrent and other P2P applications. Free Press has a page linking to written testimony, statements, and audio and video recordings from the Stanford hearing.

At the previous hearing at Harvard Law School, Comcast attracted criticism for filling the auditorium with paid attendees. This time around, the telcos declined to participate at all. They sent proxies in their place: a conservative think tank called the Phoenix Center, freelance tech pundit George Ou, and one ISP: Lariat.net of Wyoming. It's a pity that ISPs aren't willing to participate in public debate about their own practices.

EFF has argued that the FCC should use its position of leadership to clarify that ISPs should, at the very least, provide adequate disclosure of any discriminatory network management practices that they deploy (we are also trying to get similar information by promoting independent testing of ISP networks with our Test Your ISP project). This kind of transparency is essential for a properly functioning marketplace: the public must be able to know when their software doesn't work because it's buggy, and when it doesn't work because of interference by an ISP. Without this information, users don't know which tech support line to raise hell with, whether they need to switch to new software, or whether they need to switch to a new ISP.

Transparency and responsiveness is also essential for application developers to understand the way that their applications will have to fit into ISPs' networks.

We were very pleased to see that requirements for disclosure and transparency seemed to command a near-consensus amongst the Commissioners and those testifying. The devil will be in the details, of course: will disclosures be informative enough for programmers to work with and for consumers to make good decisions?

One prevailing point of confusion in the discussion was the relationship between the lack of information about network traffic in general (eg, how much of Internet traffic is P2P? What kind of P2P?), the lack of information about Comcast's discriminatory network management practices (what percentage of BitTorrent seeds has Comcast been reseting? How has that varied at different times, and in different locations across the country?), and the lack of information about discrimination by other ISPs (Cox Communications, for instance, discloses that it uses "traffic prioritization" and "protocol filtering", but we don't know if its techniques are precisely the same as Comcast's, or whether it is planning to phase them out). These are all separate known unknowns and we know the FCC should look in different places if it wants to resolve them.

Another interesting question raised by Commissioner Tate was how an FCC disclosure obligation or principle would fit together with new software tools to test ISPs. We think the answer is that both are required: disclosures by ISPs and independent tests by the public are complimentary; neither of them will tell us everything we'd like to know about the network, and each of them will act as a cross-check for the other.

In the mean time, the threat of intervention by the FCC has caused Comcast to eat a great deal of humble pie. They're promising to work with BitTorrent Inc — we hope they'll also work with the wider Internet community — to find less discriminatory ways to manage their network.

In closing, we doubt that RST forgery will be the last "network management" practice to spark consternation and controversy. But we hope that in future, it won't take the best part of a year of wrangling and an FCC proceeding before transparency and common sense start to prevail.

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Software for Keeping ISPs Honest

Yesterday's announcement of a détente between Comcast and BitTorrent was great news. Unfortunately, the general problem of ISPs doing strange things to Internet traffic without telling their customers is likely to continue in the future. EFF and many other organizations are working on software to test ISPs for unusual (mis)behavior. In this detailed post, we have a round-up of the tools that are out there right now, and others that are in development...

[Read the entire post]

Comcast Reduces Discrimination, Plans To End It Altogether

Last month, shortly before the FCC held its first hearing in an investigation of Comcast's interference with BitTorrent and other P2P protocols, we noticed that Comcast was no longer injecting forged TCP RST packets in the simple tests we had been running on its cable network. Those tests had been showing interference through January 2008. Some sources with access to larger datasets informed us that the cable ISP was nonetheless still using RST packets against some BitTorrent sessions, just not the simple uses of BT and Gnutella that we had been testing. The status quo: Comcast is still interfering with P2P, but they are being more subtle about it.

Today, Comcast has announced that it will phase out its discrimination against P2P protocols entirely by the end of the year. According to the WSJ's coverage, the cable company is considering switching to non-discriminatory dynamic traffic shaping, which — as we've previously argued — is a much more responsible way of coping with network congestion. We're also pleased that Comcast is collaborating with the BitTorrent developers; we've been urging them to collaborate with the wider technical community for some time.

This is a big victory for common sense and a big victory for an Internet based on open standards, not the whims of major ISPs. But there's still more work to do.

In particular, the Internet community clearly needs to do a lot more testing for discrimination by the thousands of ISPs around the planet. EFF — and a number of other groups — have been working to build tools for those tests. In a follow-up post, we'll talk about projects that have already launched, and others that are in the pipeline.

[Update: The follow-up post is now online.]

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EFF to FCC: "Reasonable Network Management" Requires Transparency

In response to the FCC's inquiry into Comcast's interference with BitTorrent traffic, EFF filed comments yesterday urging the FCC to make it clear that ISPs must, at a minimum, adequately disclose their "network management" practices before they can hide behind the excuse of "reasonable network management."

The FCC has invited public comments regarding the Comcast BitTorrent blocking affair in response to two petitions: one filed by Vuze (formerly Azureus) and another filed by the Media Access Project, FreePress and Public Knowledge. (The recent public hearing in Boston, in which Comcast paid people to fill seats, was also part of this same proceeding.)

The central question in the proceeding is whether Comcast has violated the four neutrality principles set out in the FCC's Internet Policy Statement. It seems clear that Comcast's protocol-specific interference with BitTorrent traffic violates those neutrality principles. In response, Comcast (and other ISPs) have offered the excuse that it was all "reasonable network management" -- a catch-all exception to the FCC's neutrality principles.

In its comments to the FCC, EFF urges the agency to clarify that the "reasonable network management" exception to its neutrality principles should only apply where an ISP has adequately disclosed the existence and likely consequence to customers of its discriminatory practices. After all, if we believe that market forces are our first line of defense against unreasonable ISP behavior, those forces can only work if customers, competitors, innovators, and policy-makers know what the ISPs are up to. On that score, Comcast has obviously fallen short, issuing a series of denials, evasions, and half-truths for 10 months after its own customers caught them interfering with BitTorrent traffic. The FCC needs to send a message to Comcast and other ISPs that this is unacceptable.

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Time Warner Puts a Meter on the Internet

Time Warner Cable has confirmed that it will be rolling out metered pricing for Internet access in Beaumont, TX. Although the exact terms have apparently not been set, packages would reportedly offer between 5 gigabytes and 40 gigabytes a month, with the top plan costing roughly the same as the company’s current highest-speed service (~$50-60/month).

On balance, we think this is a fair choice among a bunch of bad options. Cable companies are struggling with an infrastructure that cannot meet the bandwidth needs of all its customers (in other words, they oversold their services). Providing transparent, metered access is certainly preferable to Comcast's arbitrary, undisclosed practice of selectively hobbling particular protocols. (Or, in the words of Harold Feld of the Media Access Project, "I think this beats outright lying about your limitations.")

Overall, business models that keep ISPs thinking of themselves as "pipe" rather than "content" are good. Better that your ISP worry about the tolls to pay for the highway, rather than scheming to force you to use their preferred offramps and eat in their preferred diners.

Transparency also encourages innovation and competition. Already, Verizon is gloating publicly, saying that its more modern FIOS fiber-optic service will not have caps ("step right up, no caps over here, folks"). This also may encourage new broadband technology providers to enter the market, as they will have another way to differentiate their offering from cable broadband ("real unlimited Internet, right this way").

But there are some serious potential drawbacks, too. First, if metered Internet access becomes widespread, it may discourage users from indulging in new, high-bandwidth activities, thereby foreclosing innovative new technologies and markets. For example, we might never have had a YouTube (or a Napster) if people were fretting about their bandwidth consumption.

Second, much will depend on the pricing of these new metered plans. The new plans could be used to bring basic broadband in at a lower price (good), or it could be used as a cover for price increases on existing customers (bad). And the pricing for "overages" should bear some relation to costs, rather than being exploited for windfall profits. (Broadband industry observer Dave Burstein has pointed out that the wholesale price to Time Warner for 40gb for a month amounts to about $3.)

Last word goes to Harold Feld: "The real solution, of course, is policies that build out more capacity so that it becomes too cheap to meter." Now if only we had a real national broadband policy to get us there.

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