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Comcast vs. BitTorrent to be focus of FCC hearing

Cable company and foes to be questioned as agency considers new nondiscrimination regulations targeting broadband providers.

The high-profile squabble over Comcast's slowdown of BitTorrent file-sharing traffic--and broader questions of network handling by Internet service providers--is set for public scrutiny Monday at a federal hearing.

This time, the Federal Communications Commission will depart its headquarters just off the National Mall in Washington and head north to a courtroom on Harvard Law School's campus in Cambridge, Mass. (The FCC wouldn't comment on why the site was selected, but Boston is the home turf of Democratic Rep. Ed Markey, who chairs a House Internet subcommittee.)

The hearing, which will be open to the public on a first-come, first-served basis and be otherwise accessible via an "audio-only" Webcast on the FCC site. It's an outgrowth of the agency's recently launched inquiry into what constitutes "reasonable" network management practices by Internet service providers.

The FCC in 2005 said broadband companies should not block or interfere with lawful Internet use, unless they're doing so for "reasonable" network management purposes, but revelations that Comcast was stalling uploads to BitTorrent protocol clients raised new questions about what "reasonable" means.

The public forum will give the commissioners a chance to quiz company executives and networking experts, and perhaps reveal what they may do next. The regulators have already accepted thousands of written comments from private citizens, interest groups, and corporations concerned about the topic. They may choose, based on the comments, to start a process that would more clearly establish what Internet service providers may and may not do, but they're not obligated to do so.

The event--coupled with Rep. Markey's introduction of an arguably less-regulatory Net neutrality bill last week--also signals a clear revival of a temporarily dormant debate over whether Net neutrality laws are needed.

"What we're going to see on Monday is a trial of the Internet," said Columbia Law School Professor Tim Wu who has written extensively in favor of Net neutrality regulations and is slated to speak on a panel Monday. "Comcast is in the docket, accused of crimes against the public interest, and we'll see how well they are able to defend themselves."

Net neutrality, of course, is the idea that network operators like AT&T and Comcast should be prohibited from prioritizing Web content and applications, or charging content owners extra fees for premium delivery. Two years ago, Congress considered handing the FCC extensive power to regulate Internet practices, but it rejected the proposals.

Proponents say such policies are necessary to promote democracy itself--and to ensure that little guys won't be squeezed out of the Internet ecosystem in favor of larger, deeper-pocketed entities. But opponents, including the network operators, say they deserve flexibility to manage their networks as they see fit to serve their customers' interests--for instance, blocking spam and ensuring that use of high-bandwidth applications by some users at peak times doesn't clog the pipes for everyone else.

This brings us back to the question currently before the FCC--what is "reasonable" network management, anyway?

On Monday, the FCC commissioners may offer a clearer glimpse of where they stand. The commissioners will have the chance to question Comcast Executive Vice President David Cohen, along with executives from Verizon Communications, BitTorrent, Sony, and online video-sharing site Vuze.

Each of the commissioners has already shown some indication of whether they're for or against Net neutrality-type regulations. Chairman Kevin Martin and fellow Republican commissioners Deborah Tate and Robert McDowell have tended to believe that regulations aren't needed and that the market can settle any concerns about unfair prioritization of Internet content, while Democratic commissioners Michael Copps and Jonathan Adelstein have tended to favor stiffer rules against traffic discrimination. This is an echo of what happened in Congress, where votes took on a sharply partisan tone.

Martin has, however, indicated recently that a key part of "reasonable" network management practices is making them transparent to customers--something that critics say didn't happen in the Comcast episode.

The hearing is largely a response to public outcry over Comcast versus BitTorrent. Shortly after those reports emerged, a coalition of consumer advocacy groups that support Net neutrality regulations--including Free Press, Public Knowledge, Media Access Project, and Consumers Union--petitioned the FCC to proclaim that "degrading peer-to-peer traffic" violates federal broadband policy.

In a separate but similar petition, the video file-sharing application Vuze asked the FCC to "clarify" what it means by "reasonable network management"--and, more specifically, "to establish that such network management does not permit network operators to block, degrade or unreasonably discriminate against lawful Internet applications, content, or technologies."

The FCC is weighing whether to grant either of those requests.

Comcast, for its part, has already told the FCC in written comments that its actions are completely reasonable. The cable company said it slows down only file uploads that rise to the level of "excessive" and that could interfere with other users' experience during periods of peak network congestion.

But BitTorrent firms have countered that the behavior is "anticompetitive" because it stymies the flow of legal video content that competes with TV programming offered by the cable operator.

Verizon has said it sees no need to interfere with file-sharing traffic at this point, citing fewer bandwidth constraints than Comcast encounters, but it respects the need to do so.

"While Verizon is not in a position to address the particular facts, circumstances, or reasonableness of Comcast's network management practices, the petitioners' sweeping arguments ignore the real-world need for broadband providers to manage their networks in a wide range of contexts and using a variety of methods in order to deliver high-quality and safe broadband services to their consumers," Verizon wrote in comments filed with the FCC.

Sony said in its written comments to the FCC that as a major provider of video content, it supports Vuze's call for clarity on the "reasonable" network management definition. Without FCC scrutiny--or perhaps even regulation--there may be no way of ensuring that "facially legitimate network management tools" don't limit competition in the market for Internet video content, wrote Jim Morgan, the company's government affairs director.

Also scheduled to speak (PDF) at the hearing Monday are Massachusetts legislator Daniel Bosley, a Democrat who leads a technology committee; University of Pennsylvania law professor Christopher Yoo, who has argued against Net neutrality regulations; and three Massachusetts Institute of Technology professors who specialize in network management issues. And, of course, Rep. Markey is scheduled to appear.

The action isn't expected to stop beyond the hearing-room walls. The SavetheInternet.com coalition, whose members include scores of nonprofit groups, small businesses, and bloggers, said it plans to record testimony outside the hearing from members of the public who wish to speak their minds.

Vuze is also inviting Internet users to submit "video testimony" about broadband network management issues to the "FCC Channel" at its Web site. FCC Commissioners are planning to respond to some of the videos during the hearing, and they'll also be made part of the formal public record, Vuze said.

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