Opinion: The War With Comcast Is Far From Over

(April 26) -- When a federal court killed a Federal Communications Commission order prohibiting Comcast from tampering with its customers' traffic, it was the end of a case I was involved in from the very beginning. But it's not the end of the story.

I'm a ham radio operator, a barbershop quartet singer and fan, and a networking expert owing to my employment as a developer of communications products in the high-tech industry. Oddly, all three would converge when I caught my Internet service provider, Comcast Cable, altering my outgoing Internet traffic and preventing me from uploading music and graphics files.

When I complained, nobody in the technical support department at Comcast knew about it. When I went public, Comcast publicly denied it. When The Associated Press and the Electronic Frontier Foundation both separately and independently demonstrated that Comcast was blocking uploads in exactly the manner that I described, Comcast changed its tune but said it engages only "in reasonable network management to provide all of our customers with a good Internet experience."

That Comcast was blocking traffic was shocking. In 2006, Comcast Vice President David L. Cohen assured Congress it would never block traffic. "If Comcast were to try to 'deny, delay or degrade' the Internet experience that our more than 9 million cable Internet customers have paid for, how can we possibly expect to keep them as customers?" he said.

When the case became an official investigation of the FCC, Comcast obstructed it at every turn. Comcast changed its tune again, claiming that it only affected traffic during periods of high congestion and that all Internet service providers interfere with users. It quietly changed its terms of service just before an FCC hearing and then pointed to it to demonstrate what it had been disclosing to its users.

It even tried to trick the commission and the public by announcing a collaborative deal with BitTorrent Inc., a company that merely shared the name with an affected protocol and was completely unrelated to the case at hand.

In the final days before the ruling, sensing the approaching loss, Comcast basically confessed to what it was doing, confirming that it was indeed blocking uploads regardless of congestion.

Comcast then fought the FCC's order, not on the facts of the case but on jurisdiction, and the federal appeals court ruled in Comcast's favor. This has had an immediate impact on Comcast customers waiting for a civil class-action lawsuit to proceed. A $16 million settlement was tentatively reached, which I considered to be absurdly weak compensation.

Now that there will be no overseer to ensure that something like this doesn't happen again, there is no disincentive to keep Comcast from again blocking its customers' traffic. That's why I'm now asking for all Comcast customers to opt out of the proposed P2P Congestion Settlement.

The war is not over yet. Comcast won this case, but at what cost? If it thought a few consumer-centric principles in a policy statement was too much regulation, how will it react to new net neutrality legislation?

In the meantime, we've made our case that consumers need protection. The FCC must move now to protect consumers and do so on solid legal ground.

Robb Topolski is chief technologist for the Open Technology Initiative of the New America Foundation.


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