Comcast on Tuesday filed with the FCC its response to complaints by Vuze and Free Press about its traffic and network management practices. It’s an 80-page document, with the first 60 pages or so outlining Comcast’s arguments and the last 20 pages attaching its latest acceptable use policy and FAQs regarding excessive use and network management.

It’s worth looking at in detail because Comcast makes some good arguments and some which are a little flimsier.

At root, Comcast’s argument is that:

• it has (so far) restricted its network management activities to the following narrowly-defined set of circumstances: uploads by BitTorrent users who are not simultaneously downloading (and are therefore thought to have left their PCs unattended as peers in the network rather than as active consumers of torrents), when networks are congested
• it has sufficient capacity in its network to avoid congestion when it monitors only this very specific type of traffic, but when these uploads are permitted it faces congestion problems
• network management is therefore the only way to ensure that all other traffic can reach its destination at times of high usage of the network
• the FCC ought to rule that such network management is “reasonable” and in fact the kind of thing that a responsible ISP ought to be doing to provide quality service to customers
• there is no merit in its opponents that it has done something illegal, since the FCC has never actually turned the much-touted net freedoms espoused by Michael Powell into anything with legal authority.

If you assume (which some of its opponents won’t) that Comcast is being honest and open, this seems to me to be entirely reasonable. If one very narrow and specific category of traffic is causing all the problems, and temporarily blocking that form of traffic during peak times solves the congestion problem, it is absolutely the right thing to do. It is the least intrusive way of managing the problem, and affects only traffic which users generally have no real interest in anyway (since the content is flowing away from users, usually in an automated fashion, and therefore is not content they are consuming). Certainly, there is no indication that the content which is being blocked in any way directly competes with any service offered by Comcast, since it is not blocking downloads.

Is there anything to object to at all here, then? Well, yes. Comcast has taken a very long time to release this data about its network management activities, and arguably has obfuscated the truth throughout the process. Now, in this it is no different from other ISPs out there, none of whom provided detailed information about their network management practices either. As Comcast itself says in its filing, requiring such a level of detail to be filed would have two adverse effects: (1) it would require significant manpower to always have the latest policies posted somewhere, (2) it would provide information to both legitimate service providers and those with nefarious motives about how to bypass its controls, defeating the object of network management and only increasing the burden on Comcast.

What are the alternatives to network management? It seems to me there are essentially two of them:

• allow degradation to take place at busy times
• massive investment in additional bandwidth.

The former would cause a worsening experience for all customers and applications at peak periods, which would likely lead to complaints against Comcast and customer desertions. It would technically be “neutral” and “non-discriminatory”, but wouldn’t really be in the best interests of any particular party - consumers or application or service providers. The latter would be hugely expensive in the first place, and up to a certain point any additional bandwidth would likely be scooped up by P2P activity anyway, which means it wouldn’t solve the problem.

All of this leads me to wonder whether the ISPs - Comcast included - wouldn’t be better off simply banning the use of P2P software (or at least P2P uploads) in their acceptable use policies. Here are some excerpts from other AUPs:

You agree that the Service is not to be used to host peer-to-peer applications that you are not actively using [from AT&T's terms of service]

You may NOT use the Service as follows: … (x) to install “auto-responders,” “cancel-bots” or similar automated or manual routines which generate excessive amounts of net traffic… You may not use the Broadband Service to host any type of server whether personal or commercial in nature. [from Verizon's series of tubes” analogy. Speaking of which, Comcast relies on a quote attributed to Congresswoman Mary Bono Mack (widow of Sonny Bono and inheritor of his House seat) in describing BitTorrent:

As Congresswoman Mary Bono Mack recently explained:

The service providers are watching more and more of their network monopolized by P2P bandwidth hogs who command a disproportionate amount of their network resources. . . .

You might be asking yourself, why don’t the broadband service providers invest more into their networks and add more capacity? For the record, broadband service providers are investing in their networks, but simply adding more bandwidth does not solve [the P2P problem. The reason for this is P2P applications are designed to consume as much bandwidth as is available, thus more capacity only results in more consumption.

As others have pointed out, Congresspeople are never the strongest authorities on such topics and it probably could have found better ones. An article quoted later cites this snippet from Bram Cohen, the founder of BitTorrent, and actually does the job just fine:

Cohen agrees. In fact, it's something he predicted when he first thought up BitTorrent. "My whole idea was, 'Let's use up a lot of bandwidth,'" he laughs. "I had a friend who said, 'Well, ISPs won't like that.' And I said, 'Why should I care?'"

At the end of the day, the salient fact is that a small number of BitTorrent streams (Comcast suggests as few as 10 or 15) in a single node can start to cause problems, and a single user can easily be responsible for most or even all of those. Strangely, Comcast offers no evidence of its own to support any of its claims. It must have masses of data on the amount of P2P traffic in its network and so on, from the Sandvine servers which it uses to filter traffic in the first place. Perhaps it assumed that no-one would take its word for it.

One trap Comcast doesn't fall into is using the illegality of much of the file sharing that BitTorrent enables as an excuse. It doesn't mention this once, to its credit, thereby negating the obvious counter-argument that not all BitTorrent uses are illegal. It is, however, guilty of making statements which are stronger than the supporting evidence cited in the filing itself entitles them to be:

In no event does Comcast prevent, restrict, or limit the use of applications and services using P2P protocols

Given that the most logical meaning of this statement is clearly untrue from everything it says earlier in its filing, this is again disingenuous to say the least. The following statements are somewhat more accurate, in that Comcast doesn't prevent consumers from using certain applications altogether.

Comcast’s customers have unfettered access to any lawful content they choose, including content that is delivered via P2P protocols. Comcast’s customers’ P2P downloads are utterly unaffected by its network
management practices, and the limited network management measures applied to certain P2P uploads in certain circumstances are entirely content-agnostic [my emphasis]

All of this makes you wonder at what point Comcast’s management kicks in. Based on the figures it quotes about 15 or even 10 BitTorrent streams in a single node causing problems, it might be restricting the number of unidirectional uploads to less than 10 in any given node at any given time. Of course, some streams are bigger than others, and there are also bidirectional uploads (i.e. people uploading while downloading) which Comcast claims not to be managing, so it’s entirely possible that networks could become congested anyway (Comcast seems to suggest this is not the case).

At the end of the day, I’m inclined to agree with Comcast’s reasoning, but it’s undeniable that its handling of this whole issue has been clumsy from start to finish and this filing in particular could have been a lot tighter. Hopefully the FCC will see it the same way, although it may all become moot if Markey’s latest effort gets the go-ahead.