Intellectual Property Law

Comcast filing

By Susan Crawford

I’m digging out here, and working on understanding Comcast’s disclosures about its network management practices.  (Attachment A. Attachment B. Compliance Plan.)

These disclosures deserve a level of attention similar to the reception given the 250 GB cap a little while ago.

For one thing, Comcast is certainly conceding that they have used reset packets in the past.

When the number of unidirectional upload sessions for any of the managed P2P protocols for a particular Sandvine PTS reaches the pre-determined session threshold, the Sandvine PTS issues instructions called ?reset packets? that delay unidirectional uploads for that particular P2P protocol in the geographic area managed by that Sandvine PTS.

It’s also worth noting that Comcast is conceding that it is examining much more than header information.  They’re using the (historic) OSI model to describe what they’re inspecting, and penetrating very deep into information about what users are looking at and what applications they’re using.

More importantly, though, it looks as if Comcast plans to use tiering quite actively.  The company is saying that if its software decides that (1) a particular subscriber is using a “disproportionate” share of bandwidth, and (2) the relevant node is being used at 70% capacity (signalling approaching congestion), (3) that user will be dropped down to “lower priority” speeds.  The company will decide when that user will be allowed back up to higher priority speeds.

So, if you were doing a video conference call provided by a non-Comcast vendor, and the call was using “too much” bandwidth, you could lose the call - it could become too jittery to be satisfactory.  I understand that Comcast’s own voice product is not subject to this treatment.  It’s not within Comcast’s defined term “Comcast High Speed Internet (HSI),” which it says is “[a] service/product offered by Comcast for delivering Internet service over a broadband connection.”

That’s not great for voice or videoconference products that aren’t provided by Comcast.  It makes things quite unpredictable for them.

Here’s my reaction to these filings:  Comcast is playing ball and explaining patiently what it intends to do.  It’s being clear that it intends to retain complete discretion over its users’ internet transmissions, at the level of which-application-are-you-using.  It’s probably inwardly furious that it has to provide any details at all, so it’s doing its best to get through this particular communication with the FCC.

But this move is both too much and not enough.  If I were a purely private non-telecommunications company, not subject to any non-discrimination obligations, I’d be furious that the FCC is allowed even to ask how I plan to run my network.  I’d want to assure my investors that I have all the control necessary to internalize all those externalities.  This spray of details seems to be bowing to the FCC’s claim to regulate anything under Title I in any way, and that’s going too far - taken as a precedent, it would allow FCC to ask how any web application or the DNS works.

But it also doesn’t go far enough.  This move doesn’t actually provide reliability for either consumers (who won’t choose applications that may get interfered with, and may not understand why some things move slowly) or application developers (who won’t know whether they’ll be able to be reached reliably).  The company retains absolute discretion to change its plans.

Well, we’ll see.

The third annual OneWebDay was yesterday. Here are videos and other links.   Thanks to everyone, everywhere, who got involved.  Onward.

Full post as published by Susan Crawford Blog on September 23, 2008 (boomark / email).