Comcast has both obeyed and appealed an FCC rule relating to its Internet access management.
A month ago, the FCC cracked down on Comcast for selectively interfering with the communications of customers using BitTorrent, a peer-to-peer (P2P) application. Comcast said it was entitled to take action because BitTorrent users were hogging bandwidth. The FCC disagreed. Comcast singled out BitTorrent users, it said, regardless of the actual bandwidth usage, and even at times and places where the network had plenty of capacity. Hinting at darker motives, the FCC noted that BitTorrent and other P2Ps make available high-quality video in direct competition to Comcast’s cable service.
The FCC did not impose a fine on Comcast, but ordered it to stop discriminating based on users’ content (Comcast said it already had), and to disclose any new network management practices it planned to use instead.
Last week Comcast announced a cap on residential users of 250 gigabytes per month. This is a lot of usage, attained by under one percent of subscribers. And even those busy browsers will not be cut off when they reach the cap, or even be charged more. Comcast will just ask them to slow down.
Comcast thinks it addressed the anticompetitive issue by applying the cap without regard to which applications generate the usage. But its executives may still be snickering into their coffee. In reality, the only way to hit 250 gigabytes monthly is to download a lot of video. Emails and pictures of the kids just won’t do it. It takes a few DVD-quality movies a day, on average, or a long stretch of high-definition video each day. Somebody watching all those movies and TV over the Internet is probably not also subscribing to cable video service. So Comcast’s usage cap may still be hindering its competition.
Yet Comcast is still not satisfied. Yesterday it appealed the FCC’s order curtailing its previous actions against BitTorrent users. Its ground for appeal? The FCC never adopted a rule that specifically prohibits Comcast’s admittedly discriminatory practices. All the FCC has to go on is a broadly-worded policy statement. Without a rule, Comcast seems to say, the FCC has no authority to take any action whatsoever.
All this is just delaying the inevitable. Comcast has already complied with the order it is appealing, so presumably it is appealing as a matter of principle. The FCC can make the principle moot as well, just by adopting a rule. We should all have better things to do than continuing to litigate a case long after it is over.