FCC Holds Net Neutrality Hearing at HLS

BY ANDREA SAENZ

Berkfolk abounded at the packed FCC hearing, including HLS Professors Charles Nesson, Terry Fisher, and John Palfrey (far right). Media Credit

The Ames Courtroom held an overflowing crowd Monday as the Federal Communications Commission held a day-long hearing on network broadband management practices, hosted by the Berkman Center for Internet and Society. The hearing focused on a complaint against cable giant Comcast alleging that it purposely slowed traffic of the file-sharing service BitTorrent because of heavy use, causing consumer groups to cry foul about discrimination against certain content-providers that undermines the free nature of the internet.

The hearing was attended by many more people than could fit in Ames Courtroom, leading to dozens of people sitting in and around Austin with laptops and listening to the live webcast of the hearing. Some carried signs with slogans reading “No one owns the internet” and other slogans supporting net neutrality. Despite the lack of public seating, the FCC did show public comments videotaped by media reform group Free Press during the hearing, allowing them to become part of the record.

The FCC is considering new rules to require cable and telephone companies to more clearly disclose their policies for slowing traffic. Additionally, Rep. Edward Markey (D-MA), head of a House telecommunications subcommittee, has introduced legislation to prevent companies from discriminating while managing internet traffic.

At Monday’s hearing, FCC commissioners gave prepared testimony and questioned Comcast executives about their practices. “While networks may have reasonable practices,” said FCC Chairman Kevin J. Martin, HLS ’93, “they obviously cannot operate without taking some reasonable steps, but that does not mean they can arbitrarily block access to certain services.”

“[B]roadband network operators cannot shackle the promise of the Internet,” said Democratic FCC commissioner Michael J. Copps. “Our job is to figure out where you draw the line between unreasonable discrimination and reasonable network management.”

In 2005, the FCC issued a policy statement allowing internet service providers to engage in “reasonable network management” while handling their traffic. File-sharing services BitTorrent and Vuze, along with consumer groups, lodged a complaint against Comcast charging that they had violated this standard, which has been central in the debate over network neutrality.

There was also repeated criticism of Comcast’s secrecy about its practices. Comcast only publicly admitted it slowed BitTorrent traffic after an Associate Press story in October 2007 exposed the practice. Martin brought this lack of disclosure up several times during the hearing.

Gilles BianRosa, CEO of Vuze, spoke at the hearing, explaining that Comcast was both the network operator and Vuze’s competitor in delivering content, and so Comcast’s actions in slowing their traffic were particularly harmful. “What we have here is a horse race, and in this contest Comcast owns the racetrack, in fact, the only track in town,” said BianRosa. “They also own a horse. We are being told they are only slowing down our horse by a few seconds.”

Comcast defended itself by saying that they needed to slow file-sharing traffic because the congestion created otherwise interfered with many users’ internet use. “Bandwidth-intensive activities not only degrade other less-intense uses, but also significantly interfere with thousands of internet companies’ businesses,” said David Cohen, an executive vice president of Comcast. Cohen maintained that BitTorrent and similar services use a disproportionate share of network capacity, and Comcast only slows the services when they threaten to slow the entire network along with them. ‘We have chosen the least intrusive method to help the vast majority of our customers avoid service degradation,” said Cohen.

Other witnesses at the hearing argued that the lack of competition in the broadband market is just as important, or more important, than the net neutrality issue. Representative Markey urged the FCC to look at how it could “jump-start competition” in the market. HLS professor Yochai Benkler pointed out that most communities have at most two broadband providers, allowing the providers to dominate the market in such a way that the government has to use net neutrality rules to keep them from abusing their influence. Calling net neutrality “a partial solution to the failure of the market,” Benkler called for the government to require providers to lease access to the physical networks of wires they have installed to rival companies.

This sentiment was shared by Berkman Center fellow David Weinberger in a Boston Globe editorial last Saturday. “An Internet delivered by a tiny handful of old-technology providers, even if constrained by Net neutrality…doesn’t give us a Net that we make together, rather than a Net the contents of which we consume,” wrote Weinberger. “For that, we need more than Net neutrality. We need a structural change.”

Adding to the tension of the hearing, some groups charged that Comcast engaged in “Astroturf” tactics to pack the hearing room with people recruited from local job banks and keep out critics who wanted to attend. Advocates from Free Press encountered people who claimed to be holding seats for other people throughout the hearing, and took pictures of people sleeping through parts of the hearing. Other audience members applauded loudly when Comcast vice president Cohen presented his arguments. Many wore yellow highlighters on their clothing.

“The only reason these people were in the room, it seemed to me,” said Timothy Karr, Free Press campaign director, “was to keep seats warm and exclude others.”

In response, a Comcast spokesperson said Tuesday that they did not intentionally pack the room or try to block anyone else from attending, but that they did pay some people to arrive early and hold spaces in line for local Comcast employees who wanted to attend the hearing. Comcast also acknowledged that it coordinated the employees that it brought to the hearing.

“The sad thing about this,” said Craig Aaron, a spokesperson for Free Press, “is that literally hundreds of people who were not paid to stand in line, or paid by their employer to attend, were prevented from even entering the building.”

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