Block Party: Martin Pokes Comcast, Argues Enforceability of 'Net Principles

Things continue to look bleak for Comcast at the FCC. While FCC chmn Kevin Martin said an investigation into allegations Comcast violated the FCC’s net neutrality principles is not complete, he testified at Tues’ Sen Commerce hearing that it appears Comcast was blocking uploads regardless of actual levels of congestion. The MSO has maintained it delayed some P2P traffic because of congestion as part of its network management. "Contrary to some claims, it does not appear that this technique was used only to occasionally delay traffic at particular nodes suffering from network congestion at that time," Martin told the committee. "Based on the testimony we have received thus far, this equipment is typically deployed over a wider geographic or system area and would therefore have impacted numerous nodes within a system simultaneously. Moreover, the equipment apparently used does not appear to have the ability to know when an individual cable segment is congested." A Comcast rep said the MSO’s tools are "based on congestion caused by P2P traffic in local areas." If Comcast is found to have violated the principles, there’s the question of whether the FCC can even enforce them. Sen Byron Dorgan (D-ND) spent much of Tues’ hearing trying to convince Martin that his net neutrality bill is needed to ensure that the Commission has the authority to intervene. Martin conceded that a legal fight over the issue was likely, but he maintained that Congress doesn’t need to enact new regulations. "Since first asked in Sept of ’06, I have consistently stated that the 4 principles are enforceable through the complaint process, and adjudications," Martin said, adding that he expects legal challenges to just about anything the Commission does. Comcast and NCTA pres/CEO Kyle McSlarrow disagree about enforceability, pointing to Martin’s past statement that policy statements aren’t enforceable. NCTA supports the principles, but as for the FCC’s power to enforce them: "It’s not even a close call. The answer is no," McSlarrow told the committee. He also defended his members, saying there is "zero evidence" of anticompetitive behavior. "You can criticize justly, and lots of people have, whether or not the network management techniques used today are the best ones. I think that’s fine. I’m not the least defensive about it," he said, noting that broadband providers and application companies are working together to on disclosure rules and new network management techniques.