Comcast and Freedom to Obtain Service Plan Information

by on November 6, 2007 · 11 comments

Comcast’s terms of service and other consumer broadband service documents make no mention of any restrictions on the use of “peer-to-peer” applications like BitTorrent, or of any Internet network management.

AT&T and Time Warner Cable, two of the other big broadband providers, do mention restrictions on “peer-to-peer” services in their consumer broadband documents. Verizon Communications does not mention the phrase, according to an analysis of the four broadband providers conducted by DrewClark.com.

Unlike Time Warner Cable, Comcast fails to mention any “management,” “network management” or “reasonable network management” of its consumer broadband service in its documents.

Of the four providers, however, Comcast makes the most extensive warning to consumers against the “excess” use of bandwidth. For example, Comcast declares that the consumer “shall ensure that your use of the Service does not restrict, inhibit, interfere with, or degrade any other user’s use of the Service, nor represent (in the sole judgment of Comcast) an overly large burden on the network.”


The issue of Net neutrality has resurged because of Comcast’s actions limiting subscriber bandwidth available through the peer-to-peer software application BitTorrent. Although the company has conceded delays on traffic in and out of peer-to-peer applications, it defended these on the grounds that they were reasonable network management tools.

Whatever the legality of Comcast’s network management of BitTorrent, another question should loom large. Is Comcast violating what might be called the “missing” Net neutrality principle?

In other words, are consumers receiving true and accurate service plan information about what is being offered and sold as Internet service by Comcast?

On Thursday, a coalition of non-profit groups led by Free Press and Public Knowledge filed a formal complaint (PDF) at the Federal Communications Commission. It charged Comcast with violating several of the Net neutrality principles in the FCC’s August 2005 policy statement (PDF) designed to “encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet.”

In particular, according to the August 2005 principles, “consumers are entitled to access the lawful Internet content of their choice” (principle one), and “consumers are entitled to run applications and use services of their choice” (principle two). Comcast violated those principles through “methods [that] deliberately discriminate against peer-to-peer traffic,” write Free Press and Public Knowledge. They also claim that Comcast undermines the competition that consumers are entitled to have among broadband service providers.

At first, Comcast refused to admit that it blocked Internet access to peer-to-peer applications, in an October 19 story reported by the Associated Press’s Peter Svensson.

Then, speaking on background in a New York Times blog post by Brad Stone, a company official admitted that Comcast “uses data management technologies to conserve bandwidth and allow customers to experience the Internet without delays. As part of that management process, he said, the company occasionally – but not always – delays some peer-to-peer file transfers that eat into Internet speeds for other users on the network.”

Now, in response to the formal complaint, Comcast Executive Vice President David Cohen said that the provisions of the FCC’s Net neutrality policy are constrained by footnote 15, which reads, “The principles we adopt are subject to reasonable network management.”

“We engage in reasonable network management to provide all of our customers with a good Internet experience, and we do so consistently with FCC policy,” David Cohen, executive vice president at Comcast, said in a Thursday statement. “The FCC’s Internet policy acknowledges that the Web is subject to reasonable network management. The commission clearly recognized that network management is necessary by ISPs [Internet service providers] for the good of all customers.”

What is striking is that none of Comcast’s broadband service documents make any mention of either limitations on “peer-to-peer” applications, or the use of “network management” practices on the purchased Internet service.

The only use of the term “management” in any of three broadband documents is about the Comcast Home Networking Service, which refers to the “gateways, routers, or wireless cards rented from or otherwise supplied by or on behalf of us [Comcast] to you [the consumer].” These three documents are Comcast’s Terms of Service agreement for residential services, Comcast’s high-speed Internet Acceptable Use Policy, and the Comcast Abuse Policy.

Comparable terms of service and acceptable use documents of each of the four largest carriers – AT&T, Comcast, Verizon and Time Warner Cable – were examined by DrewClark.com for the adequacy of the statements’ disclosure of issues that may bear on consumer broadband use.

While Comcast omits the phrase “peer-to-peer” entirely, AT&T says, “You agree that the Service is not to be used to host peer-to-peer application that you are not actively using.” Time Warner Cable says that it “may use various tools and techniques in order to efficiently manage its networks,” including “managing network resources through techniques such as limiting the number of peer-to-peer sessions a user can conduct at the same time.”

Besides “peer-to-peer,” the phrases searched for in the documents included the use of network “management,” whether “bandwidth” was deemed to be “excessive” or the “exceed” a particular limitation, whether there was a ban on personal “servers” or the “resale” of broadband service, and whether there were any restrictions on bandwidth for “USENET.” The analysis is available here.

The Federal Trade Commission highlighted the principle of consumer access to service plan information in June 27 Net neutrality report. That report raises consumer protection and deceptive trade practice issues, noting that there are remaining “questions involving the clear and conspicuous disclosure of material terms of broadband Internet access.”

The report specifically references what former FCC Chairman Michael Powell called the “freedom to obtain service plan information,” or the last of the four Internet freedoms he articulated in a February 2004 speech (PDF). This fourth principle was dropped when the FCC, under Chairman Kevin Martin, issued its four Net neutrality principles.

FTC Commissioner Jonathan Leibowitz said it was important to protect “consumers from having to choose Internet service plans without sufficient information about those plans from broadband providers.”

  • http://bennett.com/blog Richard Bennett

    Go read the Comcast Comcast Agreement for Residential Services, where you will find the following (HSI = High Speed Internet access):

    b. Prohibited Uses of HSI. You agree not to use HSI for operation as an Internet service provider, a server site for ftp, telnet, rlogin, e-mail hosting, “Web hosting” or other similar applications, for any business enterprise, or as an end-point on a non-Comcast local area network or wide area network.

    BitTorrent acting as a seed (after the download is complete) is a server. That’s forbidden on Comcast Residential Accounts.

    This is old news and has already been discussed at great length on this blog.

  • http://bennett.com/blog Richard Bennett

    Go read the Comcast Comcast Agreement for Residential Services, where you will find the following (HSI = High Speed Internet access):

    b. Prohibited Uses of HSI. You agree not to use HSI for operation as an Internet service provider, a server site for ftp, telnet, rlogin, e-mail hosting, “Web hosting” or other similar applications, for any business enterprise, or as an end-point on a non-Comcast local area network or wide area network.

    BitTorrent acting as a seed (after the download is complete) is a server. That’s forbidden on Comcast Residential Accounts.

    This is old news and has already been discussed at great length on this blog.

  • http://www.cato.org/people/harper.html Jim Harper

    The “freedom to obtain service plan information” – if I’m not mistaken, that was the missing “fifth” freedom in FDR’s 1941 State of the Union address.

    Though historians are still searching for confirmation of this, it was apparently dropped from the speech because the president’s advisors wanted an equal number of traditional negative freedoms (e.g., from interference with speech, worship) and unworkable “positive freedoms” (e.g., from want, fear, and confusing fine print in Terms of Service documents).

  • http://www.cato.org/people/harper.html Jim Harper

    The “freedom to obtain service plan information” – if I’m not mistaken, that was the missing “fifth” freedom in FDR’s 1941 State of the Union address.

    Though historians are still searching for confirmation of this, it was apparently dropped from the speech because the president’s advisors wanted an equal number of traditional negative freedoms (e.g., from interference with speech, worship) and unworkable “positive freedoms” (e.g., from want, fear, and confusing fine print in Terms of Service documents).

  • dimitris

    the consumer “shall ensure that your use of the Service does not restrict, inhibit, interfere with, or degrade any other user’s use of the Service, nor represent (in the sole judgment of Comcast) an overly large burden on the network.”

    How can the user ensure that her behavior does not violate a standard which is set in the sole judgment of Comcast, unless Comcast publishes that standard?

    Do I need a special law-school-exclusive brain implant to read Comcast contracts?

    Thanks.

  • dimitris

    the consumer “shall ensure that your use of the Service does not restrict, inhibit, interfere with, or degrade any other user’s use of the Service, nor represent (in the sole judgment of Comcast) an overly large burden on the network.”

    How can the user ensure that her behavior does not violate a standard which is set in the sole judgment of Comcast, unless Comcast publishes that standard?

    Do I need a special law-school-exclusive brain implant to read Comcast contracts?

    Thanks.

  • http://bennett.com/blog Richard Bennett

    I seem to recall Hammurabi making some noise about service plans in the first draft of his opus “My Codex and Other Cool Laws of Cyberspace.” The relevant text was done in bas-relief on basalt, written in cuneiform script. The Service Freedom portion was lost when the stele fell off the back of the slave who was carrying it to Hammurabi’s library after the election of 1760 BC removed the Plutocrat Party from office, replacing them with the Autocrats. Incidentally, the Babylon Babblers won the World Series that year, lifting the curse of Ur-Nammu.

  • http://bennett.com/blog Richard Bennett

    I seem to recall Hammurabi making some noise about service plans in the first draft of his opus “My Codex and Other Cool Laws of Cyberspace.” The relevant text was done in bas-relief on basalt, written in cuneiform script. The Service Freedom portion was lost when the stele fell off the back of the slave who was carrying it to Hammurabi’s library after the election of 1760 BC removed the Plutocrat Party from office, replacing them with the Autocrats. Incidentally, the Babylon Babblers won the World Series that year, lifting the curse of Ur-Nammu.

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