Brad Stone of the New York Times has a good post on the Bits Blog regarding the Comcast kerfuffle (Jim, Why are we calling it that, again?). The gist:

It seems unlikely that Comcast has a secret agenda to shut down file-sharing applications and combat piracy on its network. But the company is clearly trying to have it both ways. It claims it is a neutral Internet service provider that treats all packets equally, not blocking or “shaping” its Internet traffic. Meanwhile it also positions itself as the champion of average Internet users whose speeds are being slowed by file-sharing.

The problem Comcast may now be facing is that in the absence of a plain explanation about what the company does to disadvantage certain applications in the name of managing traffic on its network, anecdotal reports and conspiracy theories fill the vacuum.

I have no doubt that Comcast’s practices stem from trying to provide a good, quality service for the majority of their customers. The problem their actions pose for those of us who advocate against unnecessary regulation, however, is that they’re not being completely clear about what they’re doing (although they’re trying).

For example, if the problem is one percent of users who tend to be bandwidth hogs, why not address the users instead of a protocol? AOL dial-up and T-Mobile wireless are able to meter customer use above a certain allotment without any negative privacy implications. It seems like Comcast does in fact target bandwidth hogs, although it doesn’t publish what the limit is. These sort of unknowns stir up the conspiracy theories Stone mentions. That makes explaining to folks that there’s nothing nefarious here pretty tough.

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Comcast was kind enough to invite me to a conference call between one of their engineers and some think tank folks. They feel their policies have been mischaracterized in the press. While I found some of the information they shared helpful, I frankly don’t think they helped their case very much.

While he didn’t say so explicitly, the Comcast guy seemed to implicitly concede that the basic allegations are true. He emphasized that they were not blocking any traffic, but that in high-congestion situations they did “delay” peer-to-peer traffic to ease the load. Apparently the Lotus Notes thing was a bug that they’re working to fix. He refused to go into much detail about exactly how this “delay” was accomplished, but presumably if the AP’s story about TCP resets were inaccurate, he would have said so.

To be fair, most of the people on the call were lawyers or economists, not technologists, so it’s possible he just didn’t think anyone other than me would care about these details. Still, it seems like part of the the point of having an engineer on the call would be to answer engineering-type questions. He also made a couple of points that I found a little patronizing. For example, he emphasized that most users wouldn’t even be able to detect the traffic-shaping activities they use without special equipment and training. Which is true, I guess, but rather beside the point.

If you haven’t read it yet, I recommend the discussion in response to Jerry’s post. I don’t know enough about the internals of cable modem protocols to know for sure who’s right, but Tom seems to me to make a good point when he says that forging reset packets is a wasteful and disruptive way to accomplish traffic shaping. The TCP/IP protocol stack is layered for a reason, and I can’t see any reason for routers to be mucking around at the TCP layer, when throttling can perfectly well be accomplished in a protocol-neutral manner at the IP layer.

Someone asked why Comcast didn’t throttle on a user-by-user basis rather than a protocol-by-protocol basis, and he said they were concerned with the privacy implications of that approach. That doesn’t make a lot of sense to me. Very few users are going to consider the number of bits they’ve transferred in a given time period to be confidential information.

We also asked about why there wasn’t more transparency about what throttling methods were being used and against which protocols. Apparently, Comcast feels that disclosing those sorts of details will make it easier for users to circumvent their throttling efforts. That doesn’t strike me as terribly persuasive; customers are entitled to know what they’re getting for their money, and people are going to figure it out sooner or later anyway. All secrecy accomplishes is to make them look bad when someone discovers it and reports it to the press.

With all that said, I’m not sure I see an obvious policy response. It seems to me that regardless of what the law says, there’s always going to be a certain amount of cat-and-mouse between ISPs and the heaviest network users. As Don Marti has pointed out, workarounds are easy to find. Add in a healthy dose of negative publicity, and it seems to me that while Comcast’s behavior is far from laudable, it’s far from obvious it’s a serious enough problem to justify giving the FCC the opportunity to second-guess every ISP’s routing policies.

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As Jerry wrote up briefly over the weekend, Comcast is alleged to have been “shaping” traffic over its network. Proponents of broadband regulation have already gotten a bit conclusory, even triumphal, expecting that this makes the case for public utility regulation of broadband service.

But I expect that we’ll soon learn more about the situation, and the conclusions to be drawn from it will be less obvious. There might be legitimate security reasons for what Comcast has done. We’ll see. We should expect full disclosure from Comcast.

My take: If Comcast is “shaping” traffic inconsistent with their terms of service, for non-network-security reasons such as copyright protection or surreptitious usage control, they shouldn’t be doing that.

More important is the meta-point: Independent testers found what they believe to be an impropriety in Comcast’s provision of broadband. They called it out, and interested parties among advocacy organizations and the media swarmed all over it. Comcast has to answer the charge, whether meritorious or not.

These are market processes working their will, and the outcome will be reached in short order – whether Comcast backs away from an improper practice, whether we learn that Comcast was not acting badly, or whether Comcast amends its terms to reflect what it thinks serves customers best.

This doesn’t conclude the discussion of whether there should be regulation. It allows us to refine the discussion: The proponents of regulation should now be challenged to write the regulation that would suss out this kind of (still alleged) misbehavior, distinguish it from appropriate network management, and ban it – without wrapping provision of Internet service in red tape or creating regulatory capture that suppresses competition. Good luck with that!

Obviously, more to come.

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