**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matters of                | )  | File No. EB-08-IH-1518       |
|                                  |    |                              |
| Formal Complaint of Free Press   | )  | WC Docket No. 07-52          |
| and Public Knowledge Against     |    |                              |
| Comcast Corporation for Secretly | )  |                              |
| Degrading Peer-to-Peer           |    |                              |
| Applications                     | )  |                              |
|                                  |    |                              |
| Broadband Industry Practices     | )  |                              |
|                                  |    |                              |
| Petition of Free Press et al.    | )  |                              |
| for Declaratory Ruling that      |    |                              |
| Degrading an Internet            | )  |                              |
| Application Violates the FCC's   |    |                              |
| Internet Policy Statement and    | )  |                              |
| Does Not Meet an Exception for   |    |                              |
| "Reasonable Network Management"  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: August 1, 2008 Released: August 20, 2008**

By the Commission: Chairman Martin and Commissioners Copps and Adelstein
issuing separate statements; Commissioners Tate and McDowell dissenting
and issuing separate statements.

Table of Contents

Heading Paragraph \#

I. Introduction 1

II\. BACKGROUND 2

III\. Discussion 12

A. Our Authority to Enforce Federal Policy 12

B. Our Approach to the Present Controversy 28

C. Resolving the Dispute 41

IV\. ORDERING CLAUSES 57

APPENDIX: List of Commenters

# INTRODUCTION

1.  We consider whether Comcast, a provider of broadband Internet access
    over cable lines, may selectively target and interfere with
    connections of peer-to-peer (P2P) applications under the facts of
    this case. Although Comcast asserts that its conduct is necessary to
    ease network congestion, we conclude that the company's
    discriminatory and arbitrary practice unduly squelches the dynamic
    benefits of an open and accessible Internet and does not constitute
    reasonable network management. Moreover, Comcast's failure to
    disclose the company's practice to its customers has compounded the
    harm. Accordingly, we institute a plan that will bring Comcast's
    unreasonable conduct to an end. In particular, we require Comcast
    within 30 days to disclose the details of their unreasonable network
    management practices, submit a compliance plan describing how it
    intends to stop these unreasonable management practices by the end
    of the year, and disclose to both the Commission and the public the
    details of the network management practices that it intends to
    deploy following termination of its current practices.

# BACKGROUND

2.  This *Order* addresses whether it is a reasonable network management
    practice for Comcast to interfere with its customers' use of
    peer-to-peer networking applications, including those that use the
    BitTorrent protocol. Before we address the specific facts in this
    case, we explain what BitTorrent does and how Comcast's practice
    affects Internet users.

3.  When an Internet user opens a webpage, sends an email, or shares a
    document with a colleague, the user's computer usually establishes a
    connection with another computer (such as a server or another end
    user's computer) using, for example, the Transmission Control
    Protocol (TCP).[^1] For certain applications to work properly, that
    connection must be continuous and reliable. Computers linked via a
    TCP connection monitor that connection to ensure that packets of
    data sent from one user to the other over the connection "arrive in
    sequence and without error," at least from the perspective of the
    receiving computer.[^2] If either computer detects that "something
    seriously wrong has happened within the network," it sends a "reset
    packet" or "RST packet" to the other, signaling that the current
    connection should be terminated and a new connection established "if
    reliable communication is to continue."[^3]

4.  BitTorrent is an open-source, peer-to-peer networking protocol that
    has become increasingly popular among Internet users in recent
    years.[^4] Unlike traditional methods of file sharing, which
    typically require establishing a single TCP connection between a
    user's computer and a single server, BitTorrent employs a
    decentralized distribution model: Each computer in a BitTorrent
    "swarm" is able to download content from the other computers in the
    swarm, and in turn each computer also makes available content for
    those same peers to download, all via TCP connections. Furthermore,
    a computer can download different portions of the same content from
    multiple computers simultaneously, with each computer providing a
    different portion of the same content. (For example, a computer
    could obtain different portions of a video file from several
    different other computers in the swarm.)[^5] BitTorrent thus
    harnesses the numerous individual Internet connections maintained by
    its users, rather than relying on a single, central pipeline, to
    distribute large files "cheaply and quickly,"[^6] and the efficiency
    of that peer-to-peer network is dependent directly on Internet
    users' ability to establish TCP connections for both downloading and
    uploading content. Although once relegated to serving, in most
    cases, the savviest Internet users with unsavory or even unlawful
    purposes,[^7] BitTorrent and other peer-to-peer technologies, such
    as Gnutella, have entered the mainstream. New online content
    distributors, such as Vuze, Inc., rely on BitTorrent[^8] to
    distribute video programming to millions of online viewers
    legally,[^9] as do several established distributors such as CBS,
    Twentieth Century Fox, and Sports Illustrated.[^10]

5.  Peer-to-peer applications, including those relying on BitTorrent,
    have become a competitive threat to cable operators such as Comcast
    because Internet users have the opportunity to view high-quality
    video with BitTorrent that they might otherwise watch (and pay for)
    on cable television. Such video distribution poses a particular
    competitive threat to Comcast's video-on-demand ("VOD") service.
    "VOD . . . operates much like online video, where Internet users can
    select and download or stream any available program without a
    schedule and watch it any time, generally with the ability to
    fast-forward, rewind, or pause the programming."[^11] Comcast has
    recently placed a significant emphasis on expanding its VOD
    business, and its VOD revenues have experienced robust growth.[^12]
    Moreover, Comcast has "begun incorporating its VOD content online
    through sites competing directly with BitTorrent protocol
    sites."[^13]

6.  Comcast subscribers began to notice that they had problems using
    BitTorrent and similar technologies over their Comcast broadband
    connections. Last year, their complaints began to receive widespread
    attention in the press.[^14] When first confronted with these press
    reports, Comcast --- the nation's second largest provider of
    broadband Internet access services --- misleadingly disclaimed any
    responsibility for the customers' problems. For example, a Comcast
    spokesman stated: "We're not blocking any access to any application,
    and we don't throttle any traffic."[^15] Rather, he indicated that
    Comcast's policy was to "pro-actively contact" those customers using
    what Comcast deemed to be excessive bandwidth "via phone to work
    with them and address the issue or help them select a more
    appropriate commercial-grade Comcast product."[^16]

7.  The Associated Press (AP) subsequently conducted several nationwide
    tests to investigate the allegations that Comcast was interfering
    with its customers' use of peer-to-peer applications, including
    BitTorrent.[^17] On October 17, 2007, the AP reported the results of
    these tests: It concluded that Comcast "actively interferes with
    attempts by some of its high-speed Internet subscribers to share
    files online."[^18] "Comcast's interference affects all types of
    content, meaning that, for instance, an independent movie producer
    who wanted to distribute his work using BitTorrent and his Comcast
    connection could find that difficult or impossible."[^19] The AP
    found that Comcast's conduct had a "drastic effect . . . on one type
    of traffic --- in some cases blocking it rather than slowing it
    down."[^20]

8.  AP also concluded that "the method used" by Comcast was "difficult
    to circumvent and involves \[Comcast\] falsifying network
    traffic."[^21] Specifically, "when one BitTorrent user attempts to
    share a complete file with another user" via a TCP connection,
    Comcast's servers (through which its users' packets of data must
    pass) send to each user's computer an RST packet "that looks like it
    comes from the other \[user's\] computer" and terminates the
    connection.[^22] One month after the AP's report, the Electronic
    Frontier Foundation (EFF) published the results of its own testing
    and similarly concluded that Comcast was selectively targeting
    customers who uploaded files using BitTorrent and other peer-to-peer
    protocols.[^23] Like AP, EFF also found examples where the Comcast's
    "packet forgery prevent\[ed\] the transfer of data."[^24]

9.  Following these tests, Comcast changed its account and admitted that
    it targets peer-to-peer traffic for interference. Specifically,
    Comcast asserted that "when P2P unidirectional upload sessions . . .
    reach a predetermined congestion threshold in a particular
    neighborhood," Comcast's network "issues instructions called 'reset
    packets.'"[^25] Comcast further claimed that it sent RST packets to
    peer-to-peer TCP connections being used to upload content until the
    traffic "in the neighborhood drops below the predetermined
    level."[^26] In all, Comcast claimed that it sent RST packet "only
    during periods of peak network congestion"[^27] and "only . . .
    during periods of heavy network traffic."[^28] Evidence in the
    record, however, contradicts this claim. One Comcast customer, for
    example, conducted numerous tests and reported that the level of
    interference with his use of peer-to-peer applications was
    approximately equal, "regardless of the time of day or night,
    regardless of the day of the week, and \[despite\] the presumable
    differences in network congestion during prime time and non-prime
    time hours of use."[^29] No matter the time of the test, all of the
    customer's Gnutella upload requests were thwarted and approximately
    40% of all his BitTorrent established upload connections were reset.
    In short, the customer concluded that for Comcast's claim of
    neighborhood-specific, congestion-targeted interference to be
    accurate, "my neighborhood would have to be under the same amount of
    congestion for 24 hours a day, 7 days a week, 365 days a year."[^30]
    Confronted with this and other evidence, Comcast changed its story
    yet again,[^31] and admitted that its "current P2P management is
    triggered . . . regardless of the level of overall network
    congestion at th\[e\] time, and regardless of the time of day."[^32]

10. On November 1, 2007, Free Press filed with the Commission a
    complaint against Comcast[^33] and asked the Commission to declare
    "that an Internet service provider violates the \[Commission's\]
    Internet Policy Statement when it intentionally degrades a targeted
    Internet application."[^34] Thereafter, over twenty thousand
    Americans similarly complained of "Comcast's blatant and deceptive
    blocking of peer-to-peer communications" and requested the
    Commission to "take immediate action to put an abrupt end to this
    harmful practice."[^35] On January 11, 2008, the Commission's
    Enforcement Bureau requested a response from Comcast,[^36] and
    Comcast responded two weeks later.[^37]

11. Free Press also filed with the Commission a petition for declaratory
    ruling asking the Commission to "clarify that an Internet service
    provider violates the FCC's Internet Policy Statement when it
    intentionally degrades a targeted Internet application."[^38]
    Separately, Vuze, Inc. filed a petition for rulemaking asking the
    Commission "to adopt reasonable rules that would prevent the network
    operators from engaging in practices that discriminate against
    particular Internet applications, content or technologies."[^39] The
    Commission's Wireline Competition Bureau sought comment on Free
    Press's petition and Vuze's petition on January 14, 2008,[^40] and
    the Commission has received more than 6,500 comments in response. In
    addition, the Commission held public hearings on the complaint and
    these petitions at Harvard Law School in Cambridge, Massachusetts,
    on February 25, 2008, and at Stanford Law School in Palo Alto,
    California, on April 17, 2008, with testimony from a diverse panel
    of experts --- both technical and legal, industry and academic ---
    along with numerous members of the public.

# DISCUSSION

##  Our Authority to Enforce Federal Policy

12. The Internet is an unprecedented communications medium. Unlike
    newspapers or radio or broadcast television or even on-demand
    television, the Internet gives Americans "a great degree of control
    over the information that they receive."[^41] Consequently, the
    Internet "offer\[s\] a forum for a true diversity of political
    discourse, unique opportunities for cultural development, and myriad
    avenues for intellectual activity."[^42] Recognizing the Internet's
    dynamic potential, Congress set forth the federal policies of
    "promot\[ing\] the continued development of the Internet"[^43] and
    of "encourag\[ing\] the development of technologies \[that\]
    maximize user control over what information is received by
    individuals . . . who use the Internet"[^44] as part of the
    Telecommunications Act of 1996.[^45]

13. In the *Internet Policy Statement*,[^46] the Commission recognized
    its responsibility for overseeing and enforcing the "national
    Internet policy" Congress had established in section 230(b) of the
    Communications Act of 1934, as amended (the Act).[^47] Noting that
    the essence of the federal policy is to "encourage broadband
    deployment and preserve and promote the open and interconnected
    nature of the public Internet,"[^48] the Commission clarified the
    contours of this policy. Most relevant here, the Commission
    instructed providers of broadband Internet access services that
    "consumers are entitled to run applications and use services of
    their choice" and "to access the lawful Internet content of their
    choice,"[^49] subject to "reasonable network management"
    practices.[^50] We stated our understanding of our "duty to preserve
    and promote the vibrant and open character of the Internet as the
    telecommunications marketplace enters the broadband age."[^51] Thus,
    the Commission committed to incorporating the principles set forth
    in the *Internet Policy Statement* "into its ongoing policymaking
    activities."[^52] The same day that the Commission adopted the
    *Internet Policy Statement*, it also adopted the *Wireline Broadband
    Order* "establishing a new regulatory framework for broadband
    Internet access services offered by wireline facilities-based
    providers."[^53] In the *Wireline Broadband Order*, the Commission
    reiterated its commitment to safeguarding the principles set forth
    in the *Internet Policy Statement*. We specifically warned that
    "\[s\]hould we see evidence that providers of telecommunications for
    Internet access or IP-enabled services are violating these
    principles, we will not hesitate to take action to address that
    conduct."[^54]

14. Comcast now resists the Commission's statutory authority to
    vindicate these federal policies. At the outset, we note that any
    assertion the Commission lacks the requisite statutory authority
    over providers of Internet broadband access services, such as
    Comcast, has been flatly rejected by the U.S. Supreme Court. In
    *Brand X*, while parties contended that affirming the Commission's
    classification of cable modem service would render the Commission
    powerless to safeguard consumer interests**,**[^55] the Court
    specifically stated that "the Commission has jurisdiction to impose
    additional regulatory obligations \[on information service
    providers\] under its Title I ancillary jurisdiction to regulate
    interstate and foreign communications, *see* §§ \[47 U.S.C.\]
    151--161,"[^56] and that "the Commission remains free to impose
    special regulatory duties on facilities-based ISPs under its Title I
    ancillary jurisdiction."[^57]

15. Comcast nevertheless argues that the Commission cannot exercise
    jurisdiction over its interference with peer-to-peer TCP connections
    (the subject of the pending complaint) because such authority must
    be "'ancillary' to something, but here it is not clear what that
    something might be."[^58] As Comcast recognizes (albeit implicitly),
    the Act gives the Commission "broad authority"[^59] under its
    ancillary authority to regulate interstate and foreign
    communications "even where the Act does *not* 'apply.'"[^60] Yet as
    muddy as the legal waters may seem to Comcast, we think our
    ancillary authority to enforce federal policy is quite clear.
    Peer-to-peer TCP connections provided through Comcast's broadband
    Internet access service are undoubtedly a form of "communication by
    wire,"[^61] so the subject matter at issue here clearly falls within
    the Commission's general jurisdictional grant under Title I. And
    though our exercise of authority must be "reasonably ancillary to
    the effective performance"[^62] of the Commission's responsibility
    for "something,"[^63] first and foremost, the "something" Comcast is
    looking for is right in the Act itself --- it is the national
    Internet policy enshrined in section 230(b) of the Act.[^64] When
    Congress drafted a national Internet policy in 1996, it did not do
    so on an empty tablet. Instead, Congress inscribed these policies
    into section 230 of the Communications Act[^65] --- the very same
    Act that established this Commission as the federal agency entrusted
    with "regulating interstate and foreign commerce in communication by
    wire."[^66] As Congress was no doubt aware, section 1 of the Act
    requires the Commission to "execute and enforce the provisions of
    \[the\] Act."[^67] To carry out this responsibility, section 4(i)
    empowers the Commission to "issue such orders . . . as may be
    necessary in the execution of its functions."[^68] Given section
    230's placement within the Act, we think that the Commission's
    ancillary authority to take appropriate action to further the
    policies set forth in section 230(b) is clear.[^69]

16. Aside from section 230, we also find that exercising jurisdiction
    over the complaint is reasonably ancillary to our authority under
    six other separate statutory provisions: Section 1 of the
    Communications Act,[^70] section 201 of the Act,[^71] section 706 of
    the Telecommunications Act of 1996,[^72] section 256 of the
    Act,[^73] section 257 of the Act, and section 601(4) of the
    Act.[^74] Section 1 of the Act directs the Commission "to make
    available, so far as possible, to all the people of the United
    States . . . a rapid, efficient, Nation-wide, and world-wide wire
    and radio communication service with adequate facilities at
    reasonable charges."[^75] We conclude that acting on the complaint
    is reasonably ancillary to this delegation of authority in several
    ways.[^76] First, prohibiting unreasonable network discrimination
    directly furthers the goal of making broadband Internet access
    service both "rapid" and "efficient." The practice of inhibiting
    consumer access to certain content and applications has the obvious
    effect of making the service slower even when doing so would not
    necessarily ease network congestion.[^77] Such practices also could
    make both the specific service, and Internet communications as a
    whole, less efficient. For example, to the extent that Comcast is
    using TCP reset packets in a different manner than they were
    intended to be used, and service providers respond by modifying
    their services to circumvent Comcast's efforts, that could undermine
    the usefulness and reliability of reset packets in general, and
    hinder the efficiency of the network.[^78] Finally, we find that
    exercising jurisdiction over the complaint would promote the goal of
    achieving "reasonable charges." For example, if cable companies such
    as Comcast are barred from inhibiting consumer access to
    high-definition on-line video content, then, as discussed above,
    consumers with cable modem service will have available a source of
    video programming (much of it free) that could rapidly become an
    alternative to cable television. The competition provided by this
    alternative should result in downward pressure on cable television
    prices, which have increased rapidly in recent years.

17. Additionally, we find that exercising authority over the complaint
    is reasonably ancillary to our authority under section 201 of the
    Act. That section provides that "\[a\]ll charges, practices,
    classifications, and regulations for and in connection with \[common
    carrier\] service, shall be just and reasonable, and any such
    charge, practice, classification, or regulation that is unjust or
    unreasonable is hereby declared to be unlawful."[^79] Exercising
    jurisdiction over the complaint is reasonably ancillary to our
    section 201 authority in several ways. When Comcast interferes with
    its users' ability to upload content, the computer attempting to
    download that content will look for another source. In some cases,
    that other source will be a computer connected to a common carrier's
    network, such as a computer of a DSL customer. The DSL provider may
    be offering the broadband service itself as a common carrier
    service, in addition to offering other services as common carrier
    services.[^80] In that circumstance, Comcast's actions impose costs
    on the DSL provider by burdening its network with traffic it
    otherwise would not have carried. Depending on the amount of traffic
    that is shifted in this way, the DSL provider may need to purchase
    or build additional capacity, incurring additional costs. Thus,
    Comcast's actions would have implications for the DSL provider's
    charges and the arrangements it must make pursuant to section 201.
    In addition, the terms of the agreement pursuant to which the DSL
    provider exchanges traffic could call for increased payments by the
    DSL provider for the increase in traffic its users are
    generating --- an increase caused by Comcast. Consequently, Comcast
    may be able to lower its own costs by diverting this traffic, and
    thereby potentially lower the costs of its retail broadband Internet
    access service, while increasing the costs of its Title II-regulated
    competitors with whom it interconnects. In short, the company's
    conduct, which shifts the costs and burdens of carrying traffic away
    from Comcast and onto Title II carriers, is a practice that directly
    impacts Title II carriers and thus implicates our section 201
    authority.

18. We also find that exercising authority over the complaint is
    reasonably ancillary to our authority under section 706 of the
    Telecommunications Act.[^81] That section provides that the
    "Commission shall encourage the deployment on a reasonable and
    timely basis of advanced telecommunications capability to all
    Americans."[^82] For purposes of this section, Congress defined
    "advanced telecommunications capability" as "high-speed, switched,
    broadband telecommunications capability that enables users to
    originate and receive high-quality voice, data, graphics, and video
    telecommunications using any technology" and "without regard to any
    transmission media or technology."[^83] Exercising jurisdiction over
    the complaint is reasonably ancillary to our section 706 authority
    in several ways. First, the practice of degrading consumer ability
    to share or access video content effectively results in the limiting
    of "deployment" of an "advanced telecommunications capability,"
    *i.e.*, the ability "to originate and receive high-quality . . .
    video telecommunications using any technology."[^84] Second, we
    predict that prohibiting network operators from blocking or
    degrading consumer access to desirable content and applications
    on-line will result in increased consumer demand for high-speed
    Internet access and, therefore, increased deployment to meet that
    demand. In particular, we agree with Free Press that the unimpeded
    availability of high-definition content on-line will lead to
    increased adoption of broadband Internet access, as well as consumer
    demand for network upgrades that would result in higher speeds that
    would allow such content to be accessed more quickly.[^85]
    Similarly, ensuring that consumers have unimpeded access to such
    content and applications will promote the availability of such
    content and applications. Put another way, the expenditure of both
    creative and financial capital on such content and applications is
    much less likely if large numbers of Internet users will be unable
    to access them in an unfettered manner.

19. We also find that exercising authority over the complaint is
    reasonably ancillary to our authority under section 256 of the
    Act.[^86] That provision's purposes are "to promote
    nondiscriminatory accessibility by the broadest number of users and
    vendors of communications products and services to public
    telecommunications networks used to provide telecommunications
    services" and "to ensure the ability of users and information
    providers to seamlessly and transparently transmit and receive
    information between and across telecommunications networks."[^87] To
    achieve these goals, section 256 directs the Commission, among other
    things, to "establish procedures for Commission oversight of
    coordinated network planning by telecommunications carriers and
    other providers of telecommunications service for the effective and
    efficient interconnection of public telecommunications networks used
    to provide telecommunications services."[^88] The provision also
    authorizes the Commission to participate in the development of
    "public telecommunications network interconnectivity standards that
    promote access to" networks and services, including "information
    services by subscribers of rural telephone companies."[^89] We have
    previously noted that section 256 "affords the Commission adequate
    authority to continue overseeing broadband interconnectivity and
    reliability issues" and does so regardless of the "legal
    classification" of the broadband Internet access service at
    issue.[^90] Even assuming that Comcast's cable plant-based Internet
    access network is not, when viewed in isolation, a "public
    telecommunications network," it clearly interconnects with such
    networks. For example, a Comcast customer who subscribes to a voice
    over Internet Protocol (VoIP) service may utilize that service to
    call a customer using a traditional land-line telephone connected to
    the public switched telephone network. Comcast customers can also
    share content with customers of local exchange carriers, whose
    networks are used to provide telecommunications services (in
    addition to information services) and are thus "public
    telecommunications networks." Moreover, as described above,
    Comcast's network management practices have the effect of shifting
    traffic to other carriers' telecommunications networks. It is
    therefore a reasonable exercise of the Commission's authority
    ancillary to section 256 to promote the ability of Comcast customers
    and customers of other networks, including public telecommunications
    networks, to share content and applications with each other, without
    facing operator-erected barriers, *i.e.*, to "seamlessly and
    transparently transmit and receive information,"[^91] and without
    allowing Comcast to shift costs and burdens to those networks.

20. In addition, exercising authority over the complaint is reasonably
    ancillary to the Commission's responsibilities under section 257 of
    the Act. Section 257 mandates that the Commission conduct an ongoing
    review to identify and eliminate "market entry barriers for
    entrepreneurs and other small businesses in the provision and
    ownership of telecommunications services and information services,
    or in the provision of parts or services to providers of
    telecommunications services and information services."[^92] The
    underlying purposes of Section 257 are "to promote the policies and
    purposes of this \[Communications\] Act favoring a diversity of
    media voices, vigorous economic competition, technological
    advancement, and promotion of the public interest, convenience, and
    necessity."[^93] Historically, "the innovation and explosive growth
    of the Internet \[has been\] directly linked to its particular
    architectural design."[^94] Thus, "variances from those standard
    protocols and practices damages the Internet as a whole,"[^95]
    including the ability of entrepreneurs to enter the market with new
    Internet services. Contravention of these standard protocols and
    practices through discriminatory conduct thus erects barriers to
    entry that would not otherwise exist. Entrepreneurs are no longer
    able to design new services and technologies around known protocols
    and standards, but must spend considerable time and resources in an
    effort to accommodate Comcast's particular network management
    practices --- a task made all the more difficult by the company's
    obfuscation regarding its actual practices.[^96] By exercising
    authority over this complaint, we are able to ensure that Comcast's
    actions do not inappropriately hinder entry by "entrepreneurs and
    other small businesses in the provision and ownership of
    telecommunications services and information services." In addition,
    by facilitating such entry, we also promote the Act's policies
    favoring "a diversity of media voices" and "technological
    advancement."

21. Our decision to exercise ancillary authority in this manner is also
    appropriate to advance the policy set forth in section 601 of the
    Act to "assure that cable communications provide and are encouraged
    to provide the widest possible diversity of information sources and
    services to the public."[^97] As Free Press correctly observes,[^98]
    this directive is not limited to "cable services" as defined by
    section 602,[^99] but applies more broadly to "cable
    communications." Indeed, in amending Title VI, Congress recognized
    the "substantial governmental and First Amendment interest in
    promoting a diversity of views provided through *multiple technology
    media*."[^100] We thus interpret "cable communications" in this
    instance to include those communications, such as peer-to-peer
    transfers, facilitated by broadband Internet access service provided
    by cable operators such as Comcast.[^101] To the extent that our
    adjudicatory action promotes a diversity of information sources for
    Comcast's end users by enabling them to access more easily a wider
    variety of content than Comcast previously allowed, this core
    purpose of Title VI of the Act is satisfied by our assertion of
    authority in this area.

22. Although Comcast complains that it is insufficient for the
    Commission's exercise of its authority to be reasonably ancillary to
    a statutory policy or objective, the U.S. Supreme Court has held
    otherwise. In *United States v. Midwest Video Corp.*,[^102] a
    regulated party advanced a similar argument to Comcast's.
    "Respondent . . . contends . . . §§ 1 and 303(g) \[of the Act\]
    merely state objectives without granting power for their
    implementation."[^103] The Court, however, held that the exercise of
    authority in that case was "founded on those provisions for the
    policies they state, and not for any regulatory power they might
    confer." Rather, the Court explained that "\[t\]he regulatory power
    itself may be found . . . in 47 U.S.C. §§ 152(a), 303(r)."[^104] So
    too here. Likewise, the U.S. Court of Appeals for the District of
    Columbia Circuit upheld, in *Computer & Communications Industry
    Ass'n v. FCC*,[^105] the Commission's regulation of wire
    communications solely in order to further the Title I goal of
    "assur\[ing\] a nationwide system of wire communications services at
    reasonable prices."[^106]

23. One peculiarity with Comcast's jurisdictional argument is that even
    many of Comcast's allies admit Commission authority here. Hands Off
    the Internet, for example, vigorously opposes any rulemaking
    regarding network management practices,[^107] but admits that
    "\[i\]t goes without saying that the \[Commission\] may take
    whatever action it deems necessary to ensure" that "network
    broadband operators act consistently with the Commission's four
    \[*Internet Policy Statement*\] principles."[^108] Indeed, Comcast
    *itself* admitted Commission jurisdiction over its network
    management practices in litigation before the U.S. District Court
    for the Northern District of California. There Comcast urged the
    court to hold litigation in abeyance because "\[a\]ny inquiry into
    whether Comcast's P2P management is unlawful falls squarely within
    the FCC's subject matter jurisdiction."[^109] And following
    Comcast's lead, the court granted Comcast's request for a stay,
    finding that "the reasonableness of a broadband provider's network
    management practices . . . has, however, been firmly placed within
    the jurisdiction of the Federal Communications Commission . . . , an
    administrative agency whose authority to regulate internet broadband
    access companies' services is well-established."[^110] The courts of
    equity have long frowned on a party making representations to one
    tribunal, benefiting from those representations, and then turning
    around to assert precisely the opposite claims to a second
    tribunal.[^111] We are similarly disturbed at Comcast's conduct here
    and find it all the more reason to dismiss Comcast's jurisdictional
    challenge as meritless.

24. Comcast makes one last point about our authority to enforce federal
    policy that turns us to a third federal policy inscribed in the Act:
    The policy "to preserve the vibrant and competitive free market that
    presently exists for the Internet and other interactive services,
    unfettered by Federal or State regulation."[^112] According to
    Comcast, this policy shows "the clear intent of Congress that the
    Internet not be regulated" and that the Commission has no legal
    authority to adjudicate the present dispute.[^113] Comcast places
    too much weight on the last few words of this federal policy, and we
    reject Comcast's construction of this language.

25. *First*, the policy embodied in this provision cannot reasonably be
    read to prevent *any* governmental oversight of providers of
    broadband Internet access services. As an historical matter, when
    this language was enacted, the "market that presently exist\[ed\]
    for the Internet and other interactive services" substantially
    consisted of dial-up Internet access service, provided over
    telephone networks. The Commission applied extensive common carrier
    regulation to the underlying telecommunications services. In
    addition, at that time facilities-based carriers were subject to
    regulation with respect to their enhanced services offering pursuant
    to the *Computer Inquiries* decisions.[^114] It is inconceivable
    that Congress was unaware of or intended to eliminate this
    regulatory framework given its stated purpose of "*preserv*\[*ing*\]
    the vibrant and competitive free market."[^115] Moreover, reading
    the provision to forbid any governmental oversight of providers of
    broadband Internet access services would conflict with numerous
    other policies in the Act. Look no further than section 230(d) of
    the Act, which requires providers of "interactive computer service"
    (including providers of "a service or system that provides access to
    the Internet"[^116]) to "notify \[a new\] customer" that certain
    technologies for filtering Internet content are commercially
    available.[^117]

26. *Second*, the Commission has previously rejected any reading of
    section 230(b)(2) that would place a flat-out ban on any government
    action that might affect the Internet and the market for broadband
    Internet access services. In the *VoIP Number Portability
    Order*,[^118] for example, the Commission noted that the "Act
    necessarily has many goals" and rejected a reading of section
    230(b)(2)'s policy that would prevent the imposition of local number
    portability on interconnected VoIP service providers, reasoning that
    that section was not meant to displace the policy of "preserv\[ing\]
    an efficient numbering administration system that fosters
    competition among all communications services in a competitively
    neutral and fair manner."[^119] Similarly, in the *VoIP CPNI
    Order*,[^120] the Commission rejected a reading of section 230(b)(2)
    that would have prevented the extension of consumer privacy
    protections to interconnected VoIP services.[^121] And in the *VoIP
    911 Order*,[^122] the Commission found that section 230(b)(2) was
    not a barrier to requiring interconnected VoIP providers to provide
    911 service to their end users.[^123]

27. Finally, we note that any doubt regarding our jurisdiction to
    adjudicate the Free Press Complaint is laid to rest because Comcast
    has waived the argument. Two years ago, in a merger proceeding
    involving Comcast, Adelphia, and Time Warner Cable, the Commission
    examined Free Press's allegations that the transaction would "likely
    result in anticompetitive conduct or interference with subscriber
    access to Internet content or applications on the part of either
    Time Warner or Comcast."[^124] Although we did not find the evidence
    sufficient to warrant the strictures Free Press sought on the
    resulting companies, we nevertheless provided that "\[i\]f in the
    future evidence arises that any company is willfully blocking or
    degrading Internet content, affected parties may file a complaint
    with the Commission,"[^125] and noted that Commission's *Internet
    Policy Statement* "contains principles against which the conduct of
    Comcast\[ and\] Time Warner . . . can be measured."[^126] Comcast
    did not petition the Commission to reconsider its ability to
    adjudicate such complaints, nor did it seek judicial review. Rather,
    it consummated the transaction as approved. As a result, the company
    is now barred from challenging our ability to adjudicate the
    complaint filed by Free Press, which is precisely the type of
    complaint discussed in the *Adelphia/Time Warner/Comcast
    Order*.[^127] This conclusion is particularly apt given that Free
    Press was a party to that proceeding and relied on these assurances
    in deciding not to seek reconsideration or judicial review.[^128] It
    would be entirely unfair for us to reverse course now in response to
    jurisdictional objections presented by another party to that
    proceeding, Comcast. Indeed, it would be akin to the famous example
    of Lucy pulling away the football just as Charlie Brown is about to
    kick it.

##  Our Approach to the Present Controversy

28. Congress has given federal agencies wide berth to determine how best
    to order their own proceedings,[^129] and Congress has specifically
    given the Commission the authority to "conduct its proceedings in
    such manner as will best conduce to the proper dispatch of business
    and to the ends of justice."[^130] Moreover, the Supreme Court has
    held:

> \[P\]roblems may arise in a case which the administrative agency could
> not reasonably foresee, problems which must be solved despite the
> absence of a relevant general rule. Or the agency may not have had
> sufficient experience with a particular problem to warrant rigidifying
> its tentative judgment into a hard and fast rule. Or the problem may
> be so specialized and varying in nature as to be impossible of capture
> within the boundaries of a general rule. In those situations, the
> agency must retain power to deal with the problems on a case-to-case
> basis if the administrative process is to be effective. There is thus
> a very definite place for the case-by-case evolution of statutory
> standards. And the choice made between proceeding by general rule or
> by individual, *ad hoc* litigation is one that lies primarily in the
> informed discretion of the administrative agency.[^131]

Given this broad authority, the Commission has often relied on
adjudications rather than rulemakings to enunciate and enforce new
federal policy. For example, the Commission first applied its 1965
policy on comparative broadcast hearings[^132] in an
adjudication[^133] --- an action later upheld by the D.C. Circuit.[^134]
Similarly, the Commission adopted the widely respected *Carterfone*
principles via adjudication[^135] and decided to refine its 1974 policy
on children's programming through individual adjudications rather than
through rules.[^136]

29. Turning to the case at hand, though we recognize that the "function
    of filling in the interstices of the Act should be performed, as
    much as possible, through th\[e\] quasi-legislative promulgation of
    rules,"[^137] we instead choose to adjudicate disputes regarding
    federal Internet policy on a case-by-case basis.[^138] Our reasons
    are threefold.

30. *First*, we proceed cautiously because the Internet is a new medium,
    and traffic management questions like the one presented here are
    relatively novel. In light of those circumstances, we decline to
    codify our "judgment into a hard and fast rule" at this time.[^139]
    Twelve years ago when Congress passed the Telecommunications Act of
    1996, the broadband industry was still in its infancy, and although
    the industry has begun to mature since then, much is still
    unsettled. For example, as late as 1998, some speculated that cable
    providers could never compete effectively with telecommunications
    carriers for the broadband Internet access service market,[^140] but
    now cable providers serve the majority of broadband users in the
    country.[^141] And while the packet-switched network of the Internet
    was once thought too unreliable for voice communications, the
    explosion of VoIP service in the last four years has put that myth
    to rest. We decline to adopt prophylactic rules at this time because
    confining our holdings to a particular set of facts should provide
    guidance to consumers and the industry without unduly tying our
    hands should the known facts change.

31. *Second*, not only is the Internet new and dynamic, but Internet
    access networks are complex and variegated. We thus think it
    possible that the network management practices of the various
    providers of broadband Internet access services are "so specialized
    and varying in nature as to be impossible to capture within the
    boundaries of a general rule."[^142] Comcast, for example, has not
    been fully forthcoming about its own practices in the present
    proceeding, and its fellow providers have also been cryptic as to
    their practices. More to the point, the majority of broadband
    Internet access services are offered not on a uniform configuration
    of fiber circuits but on legacy telephone and cable systems,
    upgraded for purposes of providing broadband, while others are
    provided over wireless connections or the electrical grid. This is
    not to say that general rules could not apply to all such systems,
    but only that, given the present record, we are not certain that a
    one-size-fits-all approach is good policy.[^143]

32. *Third*, we think a case-by-case, adjudicatory approach comports
    with congressional directives and Commission precedents. As
    discussed above,[^144] federal policy advocates the preservation of
    the "vibrant and competitive free market" for Internet and
    interactive computer services,[^145] and the Commission itself has
    recognized that "broadband services should exist in a minimal
    regulatory environment that promotes investment and innovation in a
    competitive market."[^146] Deciding to establish policy through
    adjudicating particular disputes rather than imposing broad,
    prophylactic rules comports with our policy of proceeding with
    restraint in this area at this time.[^147]

33. To be sure, Comcast correctly notes that the Commission's discretion
    to proceed by adjudication "is not unbounded"[^148] and that the
    Supreme Court has held that "there may be situations where \[an
    agency's\] reliance on adjudication would amount to an abuse of
    discretion."[^149] Comcast then sets forth the following standard to
    evaluate whether our reliance on adjudication here would amount to
    such an abuse:

    Courts have explained that "\[s\]uch a situation may present itself
    where the new standard, adopted by adjudication, departs radically
    from the agency's previous interpretation of the law, where the
    public has relied substantially and in good faith on the previous
    interpretation, where fines or damages are involved, *and* where the
    new standard is very broad and general in scope and prospective in
    application."[^150]

34. The instant proceeding clearly does not fall within this "narrow
    class of cases."[^151] Indeed, far from satisfying all four of the
    criteria defining this class, none of the criteria apply in this
    case. Most obviously, as explained below, we do not impose any fines
    or damages on Comcast here. In addition, our action today does not
    "depart\[\] radically from the agency's previous interpretation of
    the law" nor does it involve a situation "where the public has
    relied substantially and in good faith on \[a\] previous
    interpretation." When we established a more deregulatory framework
    for broadband Internet access services offered by wireline
    facilities-based providers, we made clear our commitment to take
    action to ensure compliance with the principles set forth in the
    *Internet Policy Statement*. "Should we see evidence that providers
    of telecommunications for Internet access or IP-enabled services are
    violating these principles, we will not hesitate to take action to
    address that conduct."[^152] This statement was part-and-parcel of
    our deregulatory decision as it provided a backstop in the event
    that providers engaged in abusive conduct.

35. Indeed, the claim that the Commission has departed "radically" from
    prior law and that the company had relied "substantially and in good
    faith" on that prior law is especially not well-taken coming from
    Comcast.[^153] As discussed above,[^154] in a proceeding involving
    allegations that an acquisition of Adelphia's cable systems by
    Comcast and Time Warner Cable would "likely result in
    anticompetitive conduct or interference with subscriber access to
    Internet content or applications on the part of either Time Warner
    or Comcast," we specifically warned both companies that "\[i\]f in
    the future evidence arises that any company is willfully blocking or
    degrading Internet content, affected parties may file a complaint
    with the Commission."[^155] And although that statement alone was
    clear enough to provide Comcast with fair notice, the Commission
    even went further and specifically reminded the company that
    Commission's *Internet Policy Statement* "contains principles
    against which the conduct of Comcast, Time Warner, and other
    broadband service providers can be measured."[^156] As a result,
    Comcast's complaint here that it has not been afforded fair notice
    and due process is quite remarkable.[^157]

36. Comcast's concern, that the Commission is adopting standards "very
    broad and general in scope"[^158] in the context of an adjudication,
    is similarly unproblematic. For one, as explained above and
    reiterated below, we tailor our analysis here to the particulars of
    the dispute at issue and do not adopt broad, prophylactic
    rules.[^159] For another, Comcast presents no evidence that we are
    attempting to avoid notice-and-comment rulemaking procedures by
    proceeding through adjudication. We have been forthright in seeking
    public comment on Comcast's network management practices[^160] and
    the public has been forthcoming in response.[^161] And besides,
    Comcast is hardly in a place to complain because it has had ample
    opportunity to refute Free Press's allegations and ample opportunity
    to make its case.[^162] Finally, we note that this factor alone is
    clearly not sufficient to render an agency's choice of adjudication
    an abuse of discretion. Indeed, Free Press notes that certain
    agencies, such as the National Labor Relations Board, "proceed
    through announcing policy almost exclusively through
    adjudication."[^163]

37. Comcast also suggests that proceeding by adjudication here is
    improper because the Commission has previously sought comment on
    establishing rules for providers of broadband Internet access
    services.[^164] But that suggestion ignores the fact that the
    Commission was asked to resolve a particular dispute "regardless of
    whether those standards previously had been spelled out in a general
    rule or regulation,"[^165] as well as the reasons discussed above
    for hesitating to adopt broad rules in this context.

38. And to the extent that Comcast implies that our ancillary authority
    does not extend to adjudications but rather must first be exercised
    in a rulemaking proceeding,[^166] it is simply wrong. The question
    of whether the Commission has jurisdiction to decide an issue is
    entirely separate from the question of how the Commission chooses to
    address that issue. Perhaps more to the point, the D.C. Circuit has
    affirmed the Commission's exercise of ancillary authority in an
    adjudicatory proceeding and in the absence of regulations
    before.[^167]

39. We also reject Comcast's argument that adjudication is improper here
    because "the Commission has a 27-year-old policy of leaving
    information services unregulated."[^168] As reviewed above, the
    Commission previously indicated that it would not hesitate to take
    action in the event that providers violated the principles set forth
    in the *Internet Policy Statement*.[^169] Moreover, the Commission
    repeatedly has stated its willingness to exercise the full range of
    its statutory authority to ensure that providers of cable modem
    service meet the public interest in a vibrant, competitive market
    for Internet-related services. For instance, in the *Wireline
    Broadband Order*, the Commission found that it had jurisdiction over
    providers of broadband Internet access services and stated that "we
    will not hesitate to adopt any non-economic regulatory obligations
    that are necessary to ensure consumer protection and network
    security and reliability in this dynamically changing broadband
    era."[^170] Specifically with regard to cable modem service, in the
    2002 *Cable Modem Declaratory Ruling* sustained by the Supreme Court
    in *Brand X*, the Commission sought comment on a wide range of
    statutory bases for exercising ancillary jurisdiction over cable
    modem service, including section 230(b) of the Act.[^171] The
    Commission also explicitly mentioned the blocking or impairing of
    subscriber access by a cable modem service provider as possible
    triggers for Commission "intervention."[^172] Moreover, in 2005, the
    Enforcement Bureau entered into a Consent Decree with Madison River,
    a provider of broadband Internet access services, which halted that
    provider's practice of blocking its users' ability to use
    VoIP.[^173] These and other pronouncements by the Commission[^174]
    render hollow Comcast's protestation that engaging in this
    adjudicative proceeding is somehow inconsistent with prior
    Commission policy.[^175]

40. Finally, we decline to foreclose the possibility of prescribing
    rules in this area, should future circumstances warrant such a step.
    Adjudicating the dispute in front of us does not preclude us from
    doing so --- our venerable *Carterfone* principles, for example,
    were first established via adjudication and then codified into
    rules.[^176] Thus, we will continue to oversee the practices of
    broadband Internet access service providers, and we stand prepared
    to take any action necessary to ensure the continued presence of an
    open and accessible Internet.

##  Resolving the Dispute

41. We now turn to whether Comcast's conduct runs afoul of federal
    Internet policy, and to whether we should therefore exercise our
    authority reviewed above to address it.[^177] The record leaves no
    doubt that Comcast's network management practices discriminate among
    applications and protocols rather than treating all equally.[^178]
    To reiterate: Comcast has deployed equipment across its networks
    that monitors its customers' TCP connections using deep packet
    inspection to determine how many connections are peer-to-peer
    uploads.[^179] When Comcast judges that there are too many
    peer-to-peer uploads in a given area, Comcast's equipment terminates
    some of those connections by sending RST packets.[^180] In other
    words, Comcast determines how it will route some connections based
    not on their destinations but on their contents; in laymen's terms,
    Comcast opens its customers' mail because it wants to deliver mail
    not based on the address or type of stamp on the envelope but on the
    type of letter contained therein.[^181] Furthermore, Comcast's
    interruption of customers' uploads by definition interferes with
    Internet users' downloads since "any end-point that is uploading has
    a corresponding end-point that is downloading."[^182] Also, because
    Comcast's method, sending RST packets to both sides of a TCP
    connection, is the same method computers connected via TCP use to
    communicate with each other, a customer has no way of knowing when
    Comcast (rather than its peer) terminates a connection.[^183]

42. This practice is not "minimally intrusive"[^184] but invasive and
    outright discriminatory. Comcast admits that it interferes with
    about ten percent of uploading peer-to-peer TCP connections,[^185]
    and independent evidence shows that Comcast's interference may be
    even more prevalent. In a test of over a thousand networks over the
    course of more than a million machine-hours, Vuze found that the
    peer-to-peer TCP connections of Comcast customers were interrupted
    more consistently and more persistently than those of any other
    provider's customers.[^186] Similarly, independent evidence suggests
    that Comcast may have interfered with forty if not seventy-five
    percent of all such connections in certain communities.[^187]
    Comcast also admits that even in its own tests, twenty percent of
    such terminated connections cannot successfully restart an uploading
    peer-to-peer connection within a minute.[^188] These statistics have
    real world consequences: We know, for example, that Comcast's
    conduct disconnected Adam Lynn, who uses peer-to-peer applications
    to watch movie trailers.[^189] We know that Comcast's conduct slowed
    Jeffrey Pearlman's connection "to a crawl" when he was using
    peer-to-peer protocols to update his copy of the World of Warcraft
    game.[^190] We know that David Gerisch and Dean Fox had to wait
    hours if not days to download open-source software over their
    peer-to-peer clients.[^191] And we know that Comcast's conduct
    entirely prevented Robert Topolski from distributing a "rare cache
    of Tin-Pan-Alley-era 'Wax Cylinder' recordings and other related
    musical memorabilia" over the Gnutella peer-to-peer network.[^192]
    These actual examples of interference confirm the observation that
    "\[i\]t is easy to imagine scenarios where content is unavailable
    for periods much longer than minutes."[^193]

43. On its face, Comcast's interference with peer-to-peer protocols
    appears to contravene the federal policy of "promot\[ing\] the
    continued development of the Internet"[^194] because that
    interference impedes consumers from "run\[ning\] applications . . .
    of their choice,"[^195] rather than those favored by Comcast,[^196]
    and that interference limits consumers' ability "to access the
    lawful Internet content of their choice,"[^197] including the video
    programming made available by vendors like Vuze.[^198] Comcast's
    selective interference also appears to discourage the "development
    of technologies" --- such as peer-to-peer technologies --- that
    "maximize user control over what information is received by
    individuals . . . who use the Internet"[^199] because that
    interference (again) impedes consumers from "run\[ning\]
    applications . . . of their choice,"[^200] rather than those favored
    by Comcast.[^201] Thus, Free Press has made a prima facie case that
    Comcast's practices do impede Internet content and
    applications,[^202] and Comcast must show that its network
    management practices are reasonable.[^203]

44. Comcast tries to avoid this result by arguing that it only delays
    peer-to-peer applications, and that the *Internet Policy Statement*,
    properly read, prohibits the blocking of user applications and
    content, but not mere delays. We do not agree with Comcast's
    characterization and instead find that the company has engaged in
    blocking. As one expert explains: "It is never correct to say that
    Comcast has delayed P2P packets or P2P sessions, because the P2P
    traffic will never flow again unless the end system initiates a new
    session to the same device, even though it now believes that device
    is unable to continue a transfer. The argument that terminating a
    P2P session is only delaying because a device may attempt to
    initiate a new session some time later is absurd. By this incorrect
    argument, there is no such thing as call blocking; there is only
    delaying."[^204] Indeed, under Comcast's logic virtually any
    instance of blocking could be recharacterized as a form of delay. We
    are likewise unpersuaded by Comcast's argument that terminating
    peer-to-peer connections does not equate to blocking access to
    content because Internet users may upload such content from other
    sources[^205] --- whether or not blocking content was Comcast's
    intent, Comcast's actions certainly had that effect in some
    circumstances.[^206] In any event, the semantic dispute of "delaying
    vs. blocking" is not outcome determinative here.[^207] Regardless of
    what one calls it, the evidence reviewed above shows that Comcast
    selectively targeted and terminated the upload connections of its
    customers' peer-to-peer applications and that this conduct
    significantly impeded consumers' ability to access the content and
    use the applications of their choice. These facts are the relevant
    ones here, and we thus find Comcast's verbal gymnastics both
    unpersuasive and beside the point.

45. Next, Comcast asserts that even if its practice is discriminatory,
    it qualifies as reasonable network management.[^208] However,
    experts in the field generally disagree strongly with Comcast's
    assertion that its network management practices are reasonable. The
    Internet Engineering Task Force, a repository for the standards and
    protocols that underlie the functioning of the Internet,[^209] has
    promulgated universal definitions for how the TCP protocol is
    intended to work.[^210] So far in the Internet's history, these
    standards have created "the equivalent of perfect competition . . .
    among applications and content . . . with a minimum interference by
    the network or platform owner."[^211] Significantly, Comcast's
    practices contravene those standards.[^212] Comcast's method of
    sending RST packets to interrupt and terminate TCP connections thus
    contravenes the established expectations of users and software
    developers for seamless and transparent communications across the
    Internet --- this practice, known as RST Injection, "violate\[s\]
    the expectation that the contents of the envelopes are untouched
    inside and between Autonomous Systems" and "potentially disrupt\[s\]
    systems and applications that are designed assuming the expected
    behavior of the Internet."[^213]

46. As such, numerous experts have condemned Comcast's practice as an
    unreasonable form of network management. For example, Professor Jon
    Peha of Carnegie Mellon termed Comcast's practices a "possible case
    of consumer fraud"[^214] and stated that he was "unaware of any
    technical literature that has proposed that ISPs adopt this
    particular practice as a way of dealing with congestion, or to use
    this practice to address any other issue that might be important in
    the context of 'network management.'"[^215] Indeed, he questioned
    whether Comcast's practices fell "within the realm of network
    management at all, much less reasonable network management."[^216]
    Professor David Reed of the Massachusetts Institute of Technology
    said that "\[n\]either Deep Packet Inspection nor RST Injection" ---
    Comcast uses both to manage its network --- "are acceptable
    behavior."[^217] Professor David Clark of the Massachusetts
    Institute of Technology testified that Comcast was in essence
    "imposing a value judgment on the consumer, and that is, in the end,
    looking at your customer and saying 'enemy.'"[^218] Professor Tim Wu
    of Columbia Law School said that "Comcast's methods aren't even in
    the same league" as reasonable network management and that Comcast
    was practicing a "form of censorship and filtering rather than
    management."[^219] And Professor Barbara van Schewick of Stanford
    Law School called Comcast's practices not only unreasonable but also
    "most harmful for application-level innovation and user
    choice."[^220]

47. Moreover, Comcast's practice selectively blocks and impedes the use
    of particular applications, and we believe that such disparate
    treatment poses significant risks of anticompetitive abuse. To the
    extent that a provider argues that such highly questionable conduct
    constitutes "reasonable network management," there must be a tight
    fit between its chosen practices and a significant goal.
    Accordingly, for Comcast's practice to qualify as reasonable network
    management, the company's justification for its practice must clear
    a high threshold.[^221] Its practice should further a critically
    important interest and be narrowly or carefully tailored to serve
    that interest. Comcast justifies its practice as a means of easing
    network congestion, and we will assume without deciding that this is
    a critically important interest.

48. We next must ask whether Comcast's means are carefully tailored to
    its interest in easing network congestion, and it is apparent that
    no such fit exists. As an initial matter, Comcast's practice is
    overinclusive for at least three independent reasons. First, it can
    affect customers who are using little bandwidth simply because they
    are using a disfavored application.[^222] Second, it is not employed
    only during times of the day when congestion is prevalent:
    "Comcast's current P2P management is triggered . . . regardless of
    the level of overall network congestion at that time, and regardless
    of the time of day."[^223] And third, its equipment does not appear
    to target only those neighborhoods that have congested
    nodes[^224] --- evidence suggests that Comcast has deployed some of
    its network management equipment several routers (or hops) upstream
    from its customers, encompassing a broader geographic and system
    area.[^225] With some equipment deployed over a wider geographic or
    system area, Comcast's technique may impact numerous nodes within
    its network simultaneously, regardless of whether any particular
    node is experiencing congestion. Furthermore, Comcast's practice
    suffers from the flaw of being underinclusive. A customer may use an
    extraordinary amount of bandwidth during periods of network
    congestion and will be totally unaffected so long as he does not
    utilize a disfavored application.[^226]

49. Moreover, Comcast has several available options it could use to
    manage network traffic without discriminating as it does. Comcast
    could cap the average users' capacity and then charge the most
    aggressive users overage fees.[^227] Or Comcast could throttle back
    the connection speeds of high-capacity users (rather than any user
    who relies on peer-to-peer technology, no matter how
    infrequently).[^228] Or Comcast can work with the application
    vendors themselves.[^229] As Comcast has touted in this very
    dispute, negotiations with Pando and BitTorrent, Inc. and other
    peer-to-peer application companies have advanced the creation of the
    P4P protocol, which promises "backbone bandwidth optimization" and
    "improve\[d\] P2P download performance."[^230] Although we do not
    endorse any of these particular solutions today, they all appear far
    better tailored to Comcast's basic complaint that a
    "disproportionately large amount of the traffic currently on
    broadband networks originates from a relatively small number of
    users."[^231]

50. Comcast and several other commenters maintain a continual refrain
    that "all network providers must manage bandwidth in some
    manner"[^232] and that providers need "flexibility to engage in the
    reasonable network management practices."[^233] We do not disagree,
    which is precisely why we do not adopt here an inflexible framework
    micromanaging providers' network management practices.[^234] We also
    note that because "consumers are entitled to access the *lawful*
    Internet content of their choice,"[^235] providers, consistent with
    federal policy, may block transmissions of illegal content (*e.g.*,
    child pornography) or transmissions that violate copyright
    law.[^236] To the extent, however, that providers choose to utilize
    practices that are not application or content neutral, the risk to
    the open nature of the Internet is particularly acute and the danger
    of network management practices being used to further
    anticompetitive ends is strong. As a result, it is incumbent on the
    Commission to be vigilant and subject such practices to a searching
    inquiry, and here Comcast's practice falls well short of being
    carefully tailored to further the interest offered by the company.

51. For all of the foregoing reasons, it is our expert judgment that
    Comcast's practices do not constitute reasonable network management,
    a judgment that is generally confirmed by experts in the
    field.[^237] Comcast's practices contravene industry standards and
    have significantly impeded Internet users' ability to use
    applications and access content of their choice. Moreover, the
    practices employed by Comcast are ill-tailored to the company's
    professed goal of combating network congestion. In sum, the record
    evidence overwhelmingly demonstrates that Comcast's conduct poses a
    substantial threat to both the open character and efficient
    operation of the Internet, and is not reasonable.

52. There is still one more factor we have yet to address: Comcast's
    failure to disclose its network management practices to its
    customers. Although we have not adopted (and we decline to adopt
    today) general disclosure requirements for the network management
    practices of providers of broadband Internet access services, the
    anticompetitive harm perpetuated by discriminatory network
    management practices is clearly compounded by failing to disclose
    such practices to consumers. Many consumers experiencing difficulty
    using only certain applications will not place blame on the
    broadband Internet access service provider, where it belongs, but
    rather on the applications themselves, thus further disadvantaging
    those applications in the marketplace.[^238] On the other hand,
    disclosure of network management practices to consumers in a manner
    that customers of ordinary intelligence would reasonably understand
    would enhance the "vibrant and competitive free market . . . for the
    Internet and interactive computer services"[^239] by allowing
    consumers to compare and contrast competing providers'
    practices.[^240]

53. Comcast's claim that it has always disclosed its network management
    practices to its customers is simply untrue. Although Comcast's
    Terms of Use statement may have specified that its broadband
    Internet access service was subject to "speed and upstream and
    downstream rate limitations,"[^241] such vague terms are of no
    practical utility to the average customer. Of course there are
    "limitations" on the speed and bitrate of a customer's Internet
    connection, but even the best-informed customer would not have
    inferred from these or Comcast's other terms of service that
    peer-to-peer protocols were disfavored on Comcast's networks. And
    although Comcast eventually disclosed some elements of its network
    management practices to customers, Comcast's first reaction to
    allegations of discriminatory treatment was not honesty, but at best
    misdirection and obfuscation.[^242] If Comcast actually believed its
    practices were reasonable, it should not have behaved in this
    manner. A hallmark of whether something is reasonable is whether a
    provider is willing to disclose to its customers what it is doing.
    To the extent that Comcast wishes to employ capacity limits in the
    future, it should disclose those to customers in clear terms.

54. *Remedy*. --- We finally turn to the issue of what action the
    Commission should take in this adjudicatory proceeding. Section 4(i)
    of the Act authorizes us to tailor a remedy to "best meet the
    particular factual situation before \[us\]."[^243] Our overriding
    aim here is to end Comcast's use of unreasonable network management
    practices, and our remedy sends the unmistakable message that
    Comcast's conduct must stop. We note that Comcast has committed in
    this proceeding to end such practices by the end of this year and
    instead to institute a protocol-agnostic network management
    technique.[^244] We also recognize the need for a reasonable
    transition period.[^245] In light of Comcast's past conduct,
    however, we believe that the Commission must take action to ensure
    that Comcast lives up to its promise and will therefore institute a
    remedy consistent with President Reagan's famous maxim "trust but
    verify." Specifically, in order to allow the Commission to monitor
    Comcast's compliance with its pledge, the company must within 30
    days of the release of this *Order*: (1) disclose to the Commission
    the precise contours of the network management practices at issue
    here, including what equipment has been utilized, when it began to
    be employed, when and under what circumstances it has been used, how
    it has been configured, what protocols have been affected, and where
    it has been deployed; (2) submit a compliance plan to the Commission
    with interim benchmarks that describes how it intends to transition
    from discriminatory to nondiscriminatory network management
    practices by the end of the year; and (3) disclose to the Commission
    and the public the details of the network management practices that
    it intends to deploy following the termination of its current
    practices, including the thresholds that will trigger any limits on
    customers' access to bandwidth.[^246] These disclosures will provide
    the Commission with the information necessary to ensure that Comcast
    lives up to the commitment it has made in this proceeding.

55. To the extent that Comcast fails to file the information required
    above within 30 days of the release of this *Order*, three steps
    will occur: (1) interim injunctive relief automatically will take
    effect requiring Comcast to suspend the network management practices
    described above within 35 days of the release of this *Order*;[^247]
    (2) the Enforcement Bureau will immediately issue an order directing
    Comcast to show cause why a permanent cease-and-desist order should
    not be issued against it; and (3) a hearing will be set for thirty
    days after Comcast's receipt of that order. Similarly, to the extent
    that Comcast does file the information required above within 30 days
    of the release of this *Order* but does not follow through on its
    commitment to end its discriminatory network management practices by
    the end of the year, three similar steps will occur: (1) interim
    injunctive relief automatically will take effect requiring Comcast
    to suspend immediately the network management practices described
    above; (2) the Enforcement Bureau will immediately issue an order
    directing Comcast to show cause why a permanent cease-and-desist
    order should not be issued against it; and (3) a hearing will be set
    for 30 days after Comcast's receipt of such show-cause order.

56. We invite Free Press and other members of the public to keep a
    watchful eye on Comcast as it carries out this relief. Using the
    information provided by Comcast pursuant to this *Order* as well as
    information submitted by the public, we will closely monitor the
    company's network management practices.[^248] Accordingly, we will
    not terminate this proceeding but rather retain jurisdiction over
    this matter.

# ORDERING CLAUSES

57. Accordingly, IT IS ORDERED that, pursuant to sections 1, 2(a), 4(i),
    4(j), 201(b), 230(b), 256, 257, 303(r), 403, and 601 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152(a),
    154(i), 154(j), 201(b), 230(b), 256, 257, 303(r), 403, 521, and
    section 706 of the Telecommunications Act of 1996, 47 U.S.C. § 157
    nt, the complaint filed by Free Press against Comcast Corporation on
    November 1, 2007 IS GRANTED TO THE EXTENT HEREIN DESCRIBED AND
    OTHERWISE DENIED.

58. IT IS FURTHER ORDERED that, pursuant to sections 1, 2(a), 4(i),
    4(j), 201(b), 230(b), 256, 257, 303(r), 403, and 601 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152(a),
    154(i), 154(j), 201(b), 230(b), 256, 257, 303(r), 403, 521, section
    706 of the Telecommunications Act of 1996, 47 U.S.C. § 157 nt, and
    section 1.2 of the Commission's rules, 47 C.F.R. § 1.2, the petition
    for a declaratory ruling filed by Free Press on November 1, 2007 IS
    GRANTED TO THE EXTENT HEREIN DESCRIBED AND OTHERWISE DENIED.

59. IT IS FURTHER ORDERED that, pursuant to sections 1, 2(a), 4(i),
    4(j), 201(b), 230(b), 256, 257, 303(r), 403, and 601 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152(a),
    154(i), 154(j), 201(b), 230(b), 256, 257, 303(r), 403, 521, and
    section 706 of the Telecommunications Act of 1996, 47 U.S.C. § 157
    nt, Comcast must take the steps set forth in paragraph 54 of this
    *Memorandum Opinion and Order*.

60. IT IS FURTHER ORDERED that this *Memorandum Opinion and Order* SHALL
    BE EFFECTIVE upon release.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

**APPENDIX**

**List of Commenters**

***Broadband Industry Practices*, WC Docket No. 07-52, Comment Sought on
Petition for Declaratory Ruling Regarding Internet Management Policies,
Public Notice, 23 FCC Rcd 340 (WCB 2008).**

**[Commenter]{.underline}** **[Abbreviation]{.underline}**

American Homeowners Grassroots Alliance AHGA

American Library Association ALA

AT&T Inc. AT&T

Richard Bennett Bennett

Center for Democracy & Technology CDT

Comcast Corporation Comcast

Competitive Enterprise Institute CEI

Computer & Communications Industry Association CCIA

CTIA f\--f The Wireless Association CTIA

Discovery Institute Discovery Institute

Distributed Computing Industry Association DCIA

Embarq Embarq

Dean Fox Fox

Fiber-to-the-Home Council FTTH Council

Free Press; Public Knowledge; Media Access Project; Free Press\
Consumer Federation of America; Consumers Union;\
New America Foundation; Participatory Culture Foundation

Free State Foundation Free State

Frontier Communications Frontier

Laurence Brett Glass d/b/a LARIAT LARIAT

David Gerisch Gerisch

Global Crossing North America, Inc. Global Crossing

Hands off the Internet Hands off the Internet

Health Tech Strategies, LLC HTS

Independent Telephone & Telephone Communications Alliance ITTA

Information Technology and Innovation Foundation ITIF

Information Technology Association of America ITAA

Institute for Policy Innovation IPI

Danny Ray Jackson Jackson

Labor Council for Latin American Advancement LCLAA

Nickolaus E. Leggett Leggett

Curtis L. Lowery, M.D., University of Arkansas for Medical Sciences
Lowery

Brad Lindaas *et al.*, Lindaas *et al.*\
Northwestern University Students for Net Neutrality

National Association of Realtors Nat'l Ass'n of Realtors

National Association of State Utility Consumer Advocates NASUCA

National Association of Telecommunications Officers and Advisors NATOA

National Black Chamber of Commerce NBCC

National Cable and Telecommunications Association NCTA

National Grange of the Order of Patrons of Husbandry National Grange

National Public Safety Telecommunications Council NPSTIC

National Telecommunications Cooperative Association NTCA

NBC Universal Inc. NBC Universal

New York Public Service Commission NYPSC

The OASIS Institute OASIS

Open Internet Coalition Open Internet Coalition

Organization for the Promotion and Advancement OPASTCO\
of Small Telecommunications Companies

George Ou Ou

Part-15 Organization Part-15.ORG

Progress and Freedom Foundation PFF

Qwest Communications International, Inc. Qwest

Recording Industry Association of America RIAA

SafeMedia Corporation SafeMedia

Small Business and Entrepreneurship Council SBE Council

Christopher Soghoian Soghoian

Sony Electronics, Inc. Sony

Telecommunication Industry Association TIA

Time Warner Cable, Inc. Time Warner

Steven Titch, The Reason Foundation Titch

Michael Trausch Trausch

Joseph Tucek Tucek

U.S. Chamber of Commerce US Chamber of Commerce

United States Internet Industry Association USIIA

United States Telecom Association USTelecom

Verizon and Verizon Wireless Verizon

Vonage Holdings Corp. Vonage

Vuze, Inc. Vuze

Women Impacting Public Policy WIPP

Wireless Communications Association International, Inc. WCA

**[Reply Commenter]{.underline}** **[Abbreviation]{.underline}**

Beth Ahern Ahern

Ad Hoc Telecom Manufacturer Coalition AdHoc

Advanced Communications Law & Policy Institute ACLPI\
at New York Law School

American Legislative Exchange Council, ALEC\
Telecommunications & Information Technology Task Force

AT&T Inc. AT&T

Richard Bennett Bennett

BeSafe Technologies Inc. BeSafe

Center for Democracy & Technology CDT

Christian Coalition of America; the CP80 Foundation; Christian Coalition
*et al.*\
Enough is Enough; and Stop Child Predators

Cisco Systems, Inc. Cisco

CTIA -- The Wireless Association CTIA

Comcast Corporation Comcast

Computer & Communications Industry Association CCIA

Consumer Federation of America and Consumers Union CFA/CU

Electronic Frontier Foundation EFF

Free Press; Public Knowledge; Media Access Project; Free Press\
Consumer Federation of America; Consumers Union;\
New America Foundation; Participatory Culture Foundation

Aaron G. Aaron G.

Hands Off the Internet Hands Off the Internet

Sean Kass Kass

Motion Picture Association of America MPAA

The National Grange of the Order of Patrons of Husbandry National Grange

New Jersey Division of Rate Counsel NJ Rate Counsel

National Association of State Utility Consumer Advocates NASUCA

National Black Chamber of Commerce; Labor Council NBCC Coalition\
for Latin American Advancement; Latinos in Information Sciences\
and Technology Association; League of Rural Voters; National\
Black Justice Coalition; National Council of Women's\
Organizations; and National Congress of Black Women

NBC Universal, Inc. NBC Universal

Barry Payne Payne

The Progress & Freedom Foundation PFF

Recording Industry Association of America RIAA

Songwriters Guild of America SGA

Sprint Nextel Corporation Sprint Nextel

Anthony Tarsia Tarsia

Telecommunications for the Deaf and Hard of Hearing, Inc. TDI

Telecommunications Industry Association TIA

S. Michael Telford Telford

Time Warner Cable Inc. Time Warner

Robert M. Topolski Topolski

U.S. Chamber of Commerce US Chamber of Commerce

U.S. Distance Learning Association USDLA

United States Hispanic Leadership Institute USHLI

United States Telecom Association USTelecom

Verizon and Verizon Wireless Verizon

Viacom Inc. Viacom

Vonage Holdings Corp. Vonage

Vuze, Inc. Vuze

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband
Industry Practices*, File No. EB-08-IH-1518, WC Docket No. 07-52

Would it be OK if the post office opened your mail, decided they didn't
want to bother delivering it, and hid that fact by sending it back to
you stamped "address unknown -- return to sender"? Or would it be OK,
when someone sends you a first class-stamped letter, if the post office
opened it, decided that because the mail truck is full sometimes,
letters to you could wait, and then hid both that they read your letters
and delayed them?

Unfortunately, that is exactly what Comcast was doing with their
subscribers' Internet traffic.

Last year, some broadband subscribers complained to the FCC that Comcast
was blocking and delaying their Internet traffic. Our investigation, and
the findings of several widely respected engineers, confirmed the
complaints. Comcast was delaying subscribers' downloads and blocking
their uploads. It was doing so 24/7, regardless of the amount of
congestion on the network or how small the file might be. Even worse,
Comcast was hiding that fact by making effected users think there was a
problem with their Internet connection or the application.

Today, the Commission tells Comcast to stop, and to disclose to its
subscribers how it is going to manage traffic on a going forward basis.
We therefore take another important step to ensure that all consumers
have unfettered access to the Internet.

Over the past decade, the Internet has had a powerful impact on the
economy and on the lives of American citizens. Thanks in large part to
the deregulatory approach the Commission has employed, we have witnessed
the fruits of increased innovation, entrepreneurship, and competition
that the Internet has helped deliver. As policymakers, we have a duty to
preserve and promote the vibrant and open character of the Internet
while maintaining infrastructure companies' incentive to invest in
providing faster broadband to more people.

The framework we adopt today will enable us to achieve this balance, and
will send a message to the industry that bad actors will be punished.
This is the same framework and approach that I proposed in my April
testimony before the Senate Committee on Science, Commerce, and
Transportation which is attached as an Appendix to this statement.[^249]

We begin by affirming that the Commission can and will enforce the
principle that consumers should be able to access any content and any
application. This should come as no surprise. Three years ago the
Commission declared that it would not hesitate to act if faced with
evidence that a provider was violating this principle by blocking
consumer access to content or applications. Last year the current
Commission unanimously reiterated that we have "the ability to adopt and
enforce the net neutrality principles ... announced in the Internet
Policy Statement." Regardless of the dissenting Commissioners'
intentions at the time, or their personal preference for a rulemaking
now, the full Commission clearly put broadband operators on notice that
we were ready, willing, and able to enforce the principles.

In fact, we've said this several times, including specifically telling
Comcast. In the 2006 *Adelphia* Order**,** which the dissenting
Commissioners voted for, the Commission clearly indicated it would act
on any complaints that it received about blocking or degrading Internet
content. Specifically, the Commission stated:

> "If in the future evidence arises that any company is willfully
> blocking or degrading Internet content, affected parties may file a
> complaint with the Commission."

In conducting such an analysis, we consider a variety of factors. The
Commission considers whether the network management practice is intended
to distinguish between legal and illegal activity.  The Commission's
network principles only recognize and protect user's access to legal
content.  The sharing of illegal content, such as child pornography or
content that does not have the appropriate copyright, is not protected
by our principles.  Similarly, applications that are intended to harm
the network are not protected.

The Commission also considers whether the network service provider
adequately disclosed its network management practices. A hallmark of
whether something is reasonable is whether an operator is willing to
disclose fully and exactly what they are doing.  Consumers need proper
disclosure so that they can make informed decisions when purchasing
broadband service.

Finally, if legal content is arbitrarily degraded or blocked, and the
defense is "network management," the broadband operator must show that
its network management practice is reasonable. We will look at whether
it furthers an important interest and is carefully tailored to serve
that interest. Also, the practice should be disclosed to consumers so
that they can make informed decisions when purchasing broadband service.

Applying this framework, we find that it was unreasonable for Comcast to
discriminate against particular Internet applications, including
BitTorrent.

While Comcast claimed its intent was to manage congestion, the evidence
told a different story:

-   Contrary to Comcast's claims, they blocked customers who were using
    very little bandwidth simply because they were using a disfavored
    application;

-   Contrary to Comcast's claims, they did not affect other customers
    who were also using an extraordinary amount of bandwidth even during
    periods of peak network congestion as long as he wasn't using a
    disfavored application;

-   Contrary to Comcast's claims, they delayed and blocked customers
    using a disfavored application even when there was no network
    congestion;

-   Contrary to Comcast's claims, the activity extended to regions much
    larger than where it claimed congestion occurred. 

In short, they were not simply managing their network; they had
arbitrarily picked an application and blocked their subscribers' access
to it. 

Comcast's lack of disclosure about its network management practices
compounded the harm. Customers that experience unexpected problems with
their connections may blame the connection or application. This is
particularly troubling when the application is used to provide services
that compete with the broadband operator's own services. Indeed, when
faced with a similar situation with Internet telephony, we took quick
action to stop a telecommunications carrier from blocking competitive
VoIP providers.

Consumers demand, and deserve, better.

Our action today is not about regulating the Internet. Indeed, I have
consistently opposed calls for legislation or rules to impose network
neutrality. Like many other policy makers and members of Congress, I
have said such legislation or rules are unnecessary, because the
Commission already has the tools it needs to punish a bad actor.
Instead, we take a cautious approach. Adopting broad regulations in this
area could have unintended consequences that could stifle technological
innovation. By acting on the complaints that we receive, we are able to
deal with actual problems and avoid creating others.

That is what we do today. The specific practice Comcast was engaging in
has been roundly criticized and not defended by a single other broadband
provider.

If we aren't going to stop a company that is looking inside its
subscribers' communications (reading the "packets" they send), blocking
that communication when it uses a particular application regardless of
whether there is congestion on the network, hiding what it is doing by
making consumers think the problem is their own, and lying about it to
the public, what would we stop? Failure to act here would have
reasonably led to the conclusion that new legislation and rules are
necessary.

We do not address pricing, unbundling, or other economic regulation.

We do not tell providers how to manage their networks. They might
choose, for instance, to prioritize voice-over-IP calls. In analyzing
whether Comcast violated federal policy when it blocked access to
certain applications, we conduct a fact-specific inquiry into whether
the management practice they used was reasonable. Based on many reasons,
including the arbitrary nature of the blocking, the lack of relation to
times of congestion or size of files, and the manner in which they hid
their conduct from their subscribers, we conclude it was not.

We do not limit providers' efforts to stop congestion. We do say
providers should disclose what they are doing to consumers.

We make clear that network operators can block any illegal content or
applications that are intended to harm the network. The Order makes
clear, for instance, that providers can block child pornography or
pirated video and music. Indeed, blocking illegal content could reduce
bandwidth congestion.

While concluding that the conduct at issue violates our policy was an
obvious step, our action today is nevertheless critically important.

I am pleased that Comcast has reached an agreement with the company
BitTorrent and has committed to implement a new "protocol-agnostic"
management technique by the end of the year. And I note that we have
decided not to issue a fine. But contrary to some claims, Comcast's
agreement with the company BitTorrent did not obviate the need for us to
act today.

First, BitTorrent was not a party to the proceeding. Consumer groups
brought the complaint -- not BitTorrent -- and they and Comcast have not
settled. As a basic issue of administrative law, we need to resolve the
complaint. Comcast's agreement with a single company that uses the
peer-to-peer protocol is not a substitute for addressing the consumer
groups' complaint.

Second, it is important for the Commission to establish the important
precedent that we will stop the bad actors. We establish a clear
framework for how we will conduct our fact-intensive inquiries if
situations arise in the future. If we had declined to act, as the
dissenting Commissioners would have preferred, we would have provided
certainty that broadband operators can block access and hide their
actions from their own customers.

Third, we need to protect consumers' access. While Comcast has said it
would stop the arbitrary blocking, consumers deserve to know that the
commitment is backed up by legal enforcement.

Finally, particularly given the previous obfuscation Comcast engaged in
to date, it is important that we require Comcast to respond to many
still-unanswered questions about their new management techniques:

-   What exactly do they mean by a "protocol agnostic" management
    technique?

-   Will there be bandwidth limits?

-   If so, what will they be?

-   Will they be hourly? Monthly?

-   How will consumers know if they are close to a limit?

-   If a consumers exceeds a limit, is his traffic slowed? Is it
    terminated? Is his service turned off?

The Commission needs to understand the answers. Perhaps more
importantly, Comcasts' subscribers deserve to know the answers.

These unanswered questions seem inconsistent with the disclosures that
even the dissenting Commissioners agree are necessary.

The dissenters argue that the Commission should have conducted an
investigation to find out the answers to these questions. We did. Our
Enforcement Bureau sent Comcast a letter asking the company to respond
to the allegations in the complaint and Comcast replied. Moreover, the
Commission sought comment on petitions by Vuze and Free Press, which
asked the Commission to rule on the same conduct at issue in the
complaint and received more than 6,500 comments in response. In
addition, the Commission held two public hearing on the complaint and
the petitions. In total, the record contains more than 60,000 pages
filling 15 banker boxes.

The fact that Comcast still has not come forward and disclosed the true
nature of its network management practices, despite numerous
opportunities to do so, cannot justify inaction on the complaint. Given
the voluminous record evidence that Comcast engaged in unreasonable
network management practices, it was incumbent upon us to order Comcast
to stop the practices and disclose them to us. That is precisely what we
are doing today.

In sum, by applying the framework we adopt today, the Commission will
remain vigilant in protecting consumers' access to content on the
Internet. Subscribers should be able to go where they want, when they
want, and generally use the Internet in any legal means. When providers
engage in practices truly designed to manage congestion, not cripple a
potential competitive threat, they should not be afraid to disclose
their practices to consumers.

**Written Statement**

**Of**

**The Honorable Kevin J. Martin**

**Chairman**

**Federal Communications Commission**

**Before the**

**United States Senate**

**Committee on Commerce, Science and Transportation**

**April 22, 2008**

Good morning Chairman Inouye, Vice Chairman Stevens, and Members of the
Committee. Thank you for inviting me here today to provide my thoughts
on the future of the Internet and the Commission's current role on some
of the issues being discussed today.

Over the past decade, the Internet has had a powerful impact on the
economy and on the lives of American citizens. We have witnessed the
fruits of increased innovation, entrepreneurship, and competition that
this technology has helped deliver. As policymakers, any rules of the
road in this area must maintain an open and dynamic Internet that will
allow it to continue to be an engine of productivity and innovation that
benefits all Americans.

I.  **FCC PRINCIPLES PROTECTING CONSUMER ACCESS TO THE INTERNET**

The Commission has a duty to preserve and promote the vibrant and open
character of the Internet as the telecommunications marketplace enters
the broadband age. In 2005, the Commission adopted an Internet Policy
Statement containing four principles. The Commission's goal was to
clarify how it would evaluate broadband Internet practices on a going
forward basis.

Specifically, the Commission established the following principles:

> To encourage broadband deployment and preserve and promote the open
> and interconnected nature of the public Internet,

-   Consumers are entitled to access the lawful Internet content of
    their choice;

-   Consumers are entitled to run applications and use services of their
    choice, subject to the needs of law enforcement;

-   Consumers are entitled to connect their choice of legal devices that
    do not harm the network;

-   Consumers are entitled to competition among network providers,
    application and service providers, and content providers.

The Commission explicitly noted that these principles were subject to
reasonable network management.

The Commission was seeking to protect consumers' access to the lawful
online content of their choice. The intent of these principles was to
foster the creation, adoption and use of broadband Internet content,
applications, and services, and to ensure that consumers benefit from
that innovation.

II. **FCC's ROLE IN PROTECTING CONSUMERS AND ENFORCING OUR PRINCIPLES**

As the expert communications agency, it was appropriate for the
Commission to adopt, and it is the Commission's role to enforce, this
Internet Policy Statement.

In fact, the Supreme Court in its Brand X decision specifically
recognized the Commission's ancillary authority to impose regulations as
necessary to protect broadband internet access.

I do not believe any additional regulations are needed at this time. But
I also believe that the Commission has a responsibility to enforce the
principles that it has already adopted. Indeed, on several occasions,
the entire Commission has reiterated that it has the authority and will
enforce these current principles.

For example, in 2006 when I appeared before this Committee, then
Chairman Stevens asked me whether the Commission had the existing
authority to take action if a problem developed. And I responded that
the Commission had authority under Title I to enforce consumers' access
to the internet.

Moreover, almost exactly one year ago, the Republican Majority of the
Commission, with the Democrat Commissioners concurring, committed to
enforcing our existing principles and the policy statement.
Specifically, in April 2007, the Commission expressly stated:

> The Commission, under Title I of the Communications Act, has the
> ability to adopt and enforce the net neutrality principles it
> announced in the Internet Policy Statement. The Supreme Court
> reaffirmed that the Commission "has jurisdiction to impose additional
> regulatory obligations under its Title I ancillary jurisdiction to
> regulate interstate and foreign communications." Indeed, the Supreme
> Court specifically recognized the Commission's ancillary jurisdiction
> to impose regulatory obligations on broadband Internet access
> providers.[^250]

Finally, the Commission has already taken enforcement action in response
to other complaints. In the Madison River complaint, the Commission
ordered a telephone company to stop blocking VoIP calls.

Contrary to some public claims about Commission's approach generally,
for the Commission to take enforcement action against a telephone
company for blocking and degrading a particular application but refuse
to pursue enforcement action against a cable company blocking or
degrading a particular application would unfairly favor the cable
industry.

I believe that the Commission must remain vigilant in protecting
consumers' access to content on the internet.  Thus, it is critically
important that the Commission take seriously and respond to complaints
that are filed about arbitrary limits on broadband access and potential
violations of our principles.  Indeed, I have publicly stated that the
Commission stands ready to enforce this policy statement and protect
consumers' access to the internet. 

III. **FRAMEWORK FOR EVALUATING REASONABLE NETWORK MANAGEMENT
     COMPLAINTS**

The Commission should address issues of appropriate network management
using a consistent framework.   There are several factors that I believe
the Commission should use when analyzing complaints and concerns about
network management practices by broadband operators. 

First, the Commission should consider whether the network management
practices are intended to distinguish between legal and illegal
activity.  The Commission's network principles only recognize and
protect user's access to legal content.  The sharing of illegal content,
such as child pornography or content that does not have the appropriate
copyright, is not protected by our principles.  Similarly, applications
that are intended to harm the network are not protected.

Second, the Commission should consider whether the network service
provider adequately disclosed its network management practices.  A
hallmark of whether something is reasonable is whether an operator is
willing to disclose fully and exactly what they are doing. 

Adequate disclosure of the particular traffic management tools and
techniques \-- not only to consumers but also to the designers of
various applications and entrepreneurs -- is critical.   

Application designers need to understand what will and will not work on
a particular network.  For example, does an application developer know
that the operator may actually insert reset packets during a session
masking the network operator's identity?

Consumers must be fully informed about the exact nature of the service
they are purchasing and any potential limitations associated with that
service.   For example, has the consumer been informed that certain
applications used to watch video will not work properly when there is
high congestion? 

           

Particularly as broadband providers begin providing more complex tiers
of service, it's critical to make sure that consumers understand whether
broadband network operators are able to deliver the speeds of service
that they are selling.  For example, if Internet access is sold as an
unlimited service, do consumers understand that if they use too much of
it they can still be cut-off?    

            Finally, the Commission should consider whether the network
management technique arbitrarily blocks or degrades a particular
application.  Is the network management practice selectively identifying
particular applications or content for differential treatment?   If so,
I believe that we should evaluate the practices with heightened
scrutiny, with the network operator bearing the burden of demonstrating
that the particular practice furthered an important interest, and that
it was narrowly tailored to serve that interest. 

Such an approach would not mean that any action taken against a
particular application would automatically be a violation.  Rather, it
would trigger a more searching review of both the particular concern and
whether that network management solution was tailored to resolve the
particular harm identified to the network in as narrow a manner as
possible. 

In a manner similar to the way in which restrictions on speech are
analyzed, network management solutions would need to further a
compelling or at least an important/legitimate  interest and would need
to be tailored to fit the exact interest.  Such practices should not be
overly broad in their application so that they become over or under
inclusive.  For example, if the concern is about stopping certain
illegal content, a network provider should not block a particular
application to all users if that application transmits both legal and
illegal content. 

Such an analysis would recognize the importance of legitimate network
management techniques while giving the Commission the framework to
analyze carriers actions on a case-by-case basis.   As we move into an
era in which network operators are taking particularized actions against
individual applications and content, the Commission should evaluate such
practices under sufficient scrutiny to ensure that whatever actions the
operators are taking are actually furthering a legitimate purpose and
are narrowly tailored to serving that legitimate purpose. 

IV. **PENDING COMCAST COMPLAINT**

Consumers have alleged that certain operators, and specifically Comcast,
are blocking and/or degrading consumers' access to the Internet by
distinguishing between applications.

The Commission has heard from several engineers and technical experts
who have raised questions regarding the network management techniques
used by Comcast for peer-to-peer traffic.

The Commission is still investigating these complaints and we have not
yet determined whether the actions violated our principles protecting
consumer access to the Internet.  However, Comcast appears to have
utilized Internet equipment from Sandvine or something similar that is
widely known to be a relatively inexpensive, blunt means to reduce
peer-to-peer traffic by blocking certain traffic completely. In
contrast, more modern equipment can be finely tuned to slow traffic to
certain speeds based on various levels of congestion.

Specifically, this equipment (1) blocks certain attempts by subscribers
to upload information using particular legal peer-to-peer applications
by pretending to be the subscriber's computer and falsifying a "reset"
packet to end the communication, and (2) degrades the corresponding
attempts to download information using the same peer-to-peer
applications. 

Based on the testimony we have received thus far, I think it is
important to clarify a few points. 

Contrary to some claims, it does not appear that cable modem subscribers
had the ability to do anything they wanted on the Internet. 
Specifically, based on the testimony we have received thus far, some
users were not able to upload anything they wanted and were unable to
fully use certain file sharing software from peer-to-peer networks.  

Contrary to some claims, it does not appear this network management
technique is "content agnostic."  Indeed, Comcast has publicly stated
that it will migrate to a "protocol" (content) agnostic approach to
traffic management in the future, and thus conceded that the techniques
currently in use are not "content agnostic."

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.  Indeed, 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. It appears that this equipment
blocks the uploads of at least a large portion of subscribers in that
part of the network, regardless of the actual levels of congestion at
that particular time.

Finally, contrary to some claims, it is not clear when they will
actually stop using their current approach.  They claim that they will
deploy this new solution by the end of the year but it is unclear
whether they will be finished deploying their solution or just starting
that migration.  Indeed the question is not when they will begin using a
new approach but if and when they are committing to stop using the old
one.  

V.  **NEXT STEPS**

As the Commission continues its investigation into the complaints before
it, the most important and first step that we can take in fulfilling our
responsibility is to make sure that we are fully informed. At the very
least, we need to obtain greater information to more fully understand
what is happening and what impact operators' actions are having so that
we may better evaluate the reasonableness of any network management
practices at issue.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

Re: *Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications*, File No.
EB-08-IH-1518; *Broadband Industry Practices*, *Petition of Free Press
et al. for Declaratory Ruling that Degrading an Internet Application
Violates the FCC's Internet Policy Statement and Does Not Meet an
Exception for "Reasonable Network Management,"* WC Docket No. 07-52

This is a landmark decision for the FCC---a meaningful stride forward on
the road to guaranteed openness of the Internet. It's taken a while for
us to get here, but that doesn't detract from the historic importance of
what the Commission does today. We recognize that protecting Internet
openness is like protecting the Internet's immune system, safeguarding
it from bugs and infections that could slow its circulation, make it
sick, maybe even kill it.

Let's be clear about what today's *Order* does and does not accomplish.
We ***do*** recognize that unreasonably impeding the performance of an
Internet application (like peer-to-peer file sharing)---and not just
outright blocking a particular website or program---violates the FCC's
Internet policies. We ***do*** require that Internet providers inform
their customers when they make important technical decisions that change
how the Internet works. And we ***do*** give consumers who feel their
Internet experience is being unreasonably interfered with a right to
seek help at the Commission. We do ***not**,* however, prohibit carriers
from reasonably managing their networks. And we do ***not*** prevent
engineers---either now or in the future---from coming up with new and
better ways to serve their customers.

In short, today's decision strikes a careful balance. The story of how
we got here is instructive. Back in 2003, before most people ever heard
the words "network neutrality," I gave a speech suggesting that the
Internet as we know it could be dying.  Some thought it was perhaps
something of a controversial claim at the time. But it was premised on
my belief that if a few large companies controlled the on-ramp to the
Internet, they could distort the development of technology,
opportunities for entrepreneurs and the choices available to consumers.
I predicted that technologies to allow such interference were already
appearing, with more to come. And I said we should act then to guarantee
the openness of the Net. At that time, the Commission was more
interested in re-categorizing telecommunications services as information
services and eliminating many of the social and economic
responsibilities of broadband service providers. I urged my colleagues
to at least adopt an Internet Policy Statement that contained the basic
rights of Internet end-users to access lawful content, run applications
and services, connect devices to the network and enjoy the benefits of
competition. They did that and it was a good step forward, for
sure---but the proof was always going to be in the pudding.

Network operators assured us nothing untoward was going on, but it
wasn't long before we heard rumblings that maybe things weren't running
so openly and smoothly. Examples of alleged interference were cited.
Then, in November 2007, leading public interest organizations and
advocates filed with the Commission a specific Complaint and a Petition
for a Declaratory Ruling. They alleged that one company, Comcast, was
degrading peer-to-peer protocols that consumers were utilizing to share
large files such as movies and television programs.

The FCC was suddenly at a crossroads. Down one path was a Commission
committed to preserve and honor the openness of the Internet by
breathing life into our Internet Policy Statement. Down the other road
was a Commission that, while celebrating the Internet, refused to apply
its principles and sat idly by while broadband providers amassed the
power and technical ability to dictate where we can go and what we can
do on the Internet. Today we choose the open road.

We began by taking the allegations and our responsibility to foster an
open Internet seriously. Then we took the time to gather, analyze and
assess the evidence. We heard from the leading engineers and experts in
the field and received 6,500 comments from a broad array of interested
parties. The Commission ventured beyond the Beltway and conducted two
*en banc* hearings that included numerous expert witnesses and extensive
opportunity for public testimony. This process allowed us to better
understand what in fact the case involved and who was impacted by the
practices in question. We did the requisite analysis and a majority
today moves forward.

Here, Comcast deployed equipment using deep packet inspection to
identify peer-to-peer uploads. Comcast determined when to send reset
packets to terminate a user's connection in order to manage its network.
The practice limited consumers' ability to access the lawful Internet
content of their choice. And, as the Commission correctly concludes, it
was discriminatory and not carefully tailored to address the company's
concerns about network congestion. (In fact, it prevented peer-to-peer
customers from making uploads regardless of whether there was network
congestion at that time.) Further, Comcast's level of disclosure to its
customers was clearly inadequate. As the Order finds, no one could
reasonably have known, prior to filing of the Complaint, that
peer-to-peer protocols were being discriminated against on Comcast's
network.

The Communications Act, as amended, gives the Commission ample authority
to act on this Complaint, and today's Order sets out in detail the legal
framework for this authority. I would also point out that the Commission
is free to address these issues through either adjudication or a
rulemaking.  Surely no one can credibly claim that this process has not
provided the parties ample opportunity to present their cases.

Let me emphasize again the cautious and well-considered approach the
majority takes in this proceeding about the future of the Internet. We
recognize that network architectures and network practices are
fast-changing and complex. We understand that Comcast and all the other
Internet service providers have real network management challenges to
overcome. And we appreciate that establishing a rigid rule prohibiting
all discriminatory network practices would go too far. There are network
management practices that most experts agree are reasonable and that are
important to the development of new technologies and Internet services.
I also emphasize that discrimination is not *per se* wrong. It is
***unreasonable*** discrimination that is wrong. Unreasonable
discrimination flies in the face of the Internet's genius and threatens
the most open, dynamic and opportunity-creating technology devised in
modern times.

We know that the technological capacity to impede the openness of the
Internet already exists. It's a slam dunk that as technology evolves, we
will see new tools coming online that could be used for purposes of
unreasonable discrimination. We also understand that some may see
commercial opportunity in applying such technological impediments.
History tells us that when technical capacity and commercial incentive
exist side-by-side, it's a good bet that someone will try to use them to
their own advantage. I'm not making a moral judgment here; it's just the
stuff of history.

So the trick is to find the fine line between reasonable management
techniques that allow the Net to flourish and unreasonable practices
that distort and deny its potential. I believe, and I have long
advocated, a case-by-case analysis of the facts in particular cases
brought before the Commission, based on a clear policy of "reasonable
network management only." Today's Order follows this path. The standard
set forth in our decision is a careful balance that establishes a high
threshold for demonstrating that a discriminatory network management
practice is reasonable, while recognizing that there are times when such
practices may indeed be both reasonable and necessary. In doing this, we
don't hamstring technology. But at the same time we say to the public
that there is a place, the FCC, where you can come to have allegations
of network neutrality violations heard and acted upon.

My friend and colleague Commissioner McDowell published a thoughtful
op-ed on this topic in the *Washington Post* earlier this week. We may
respectfully disagree on some of it, but he was certainly correct that
"regardless of what the ruling stipulates, the issue of what constitutes
appropriate Internet network management will be debated for some time."
The question I have, though, is the same as it was five years ago. Will
the Internet evolve out in the open, via standards groups, and with
consumers empowered to utilize the tremendous wonders of the dynamic
Internet, and with all stakeholders having input into how the future of
this technology will evolve? Or will network operators bring the
Internet under their control for their own purposes---which may not
always be the public's purposes? Will network operators deal with
legitimate network problems in a way that is sensitive to effects on the
rest of the Internet? Or will they be permitted to maximize their own
interests? Until the FCC opened this inquiry, important decisions about
the future of the Internet were being made in a black box where the
American people had precious little opportunity to peek. After today
they will hopefully be able to see things in a little brighter light.

It is brighter because we have made a strong statement---based upon the
four principles and rooted in our authority under the Communications
Act---that network operators must not manage traffic in an unreasonably
discriminatory manner. As a practical matter, we are moving closer to
taking a step I have long called for: to expressly incorporate a fifth
principle of non-discrimination into our existing Internet Policy
Statement.

While today's *Order* represents important movement forward, it is not a
full substitute for the fifth principle that I believe we must adopt. A
clearly-stated commitment of non-discrimination would make clear that
the Commission is not having a one-night stand with net neutrality, but
an affair of the heart and a commitment for life. That's what something
so precious as this technology deserves. A fifth principle will provide
the needed reminder to all---long after the details of this case become
blurry history---that the Commission's policy of network openness is
ongoing and its remedies are always available. It's a pretty safe bet
there will be other complaints about non-discrimination coming to the
Commission. A fifth principle would reassure those bringing such
complaints that they will receive the same kind of Commission attention
that the Comcast complainants received. A fifth principle should also,
in my opinion, apply to wireless as well as to wireline networks. In
sum, formal Commission adoption of a fifth principle of Internet
openness would proclaim and sustain Internet users' right to all the
freedom that network openness provides.

Mr. Chairman, thank you for your leadership on this matter. Thanks to
the Bureau and to our Office of General Counsel for their good
diligence, thanks to my colleagues for working so hard on this, and
thanks to the many interested stakeholders who provided information to
us. I look forward to working with my colleagues, with the many Members
of Congress who have expressed interest in this issue, and---most of
all---with the users and innovators of the Net as together we work to
unlock its vast potential.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

Re: *Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications, Broadband
Industry Practices; Petition of Free Press et al. for Declaratory Ruling
that Degrading an Internet Application Violates the FCC's Internet
Policy Statement and Does Not Meet an Exception for "Reasonable Network
Management"*, Memorandum Opinion and Order, File No. EB-08-IH-1518, WC
Docket No. 07-52

Three years ago, the Commission adopted its *Internet Policy
Statement*,[^251] articulating enduring principles to encourage
broadband deployment and preserve the open and interconnected nature of
the Internet. Today, I am pleased that we build on that critical step
with this landmark decision to enforce Federal law and the principles
behind the *Internet Policy Statement*. I am confident that today's
decision will reassure consumers that they will continue to enjoy
freedom on the Internet.

Consumers have come to expect --- and will continue to demand --- the
open and neutral character that has always been the hallmark of the
Internet. Broadband is redefining many aspects of the way we live. In an
age when traditional media markets are dominated by a handful of giant
conglomerates, there is optimism about the rise of broadband as an
outlet for creative expression and democracy. The Internet can restore
decentralized and entrepreneurial voices to the media landscape that are
reflective of the best aspects of the American tradition. This Order is
a vital step towards maintaining the potential and promise that the
Internet holds for enriching our economic, cultural and social
well-being.

This decision is seminal because, for the first time, we interpret the
specific provisions of the *Internet Policy Statement* and follow
through on our repeated promises to act on allegations of
misconduct.[^252] At the same time, it is also a narrow decision,
grounded firmly in the facts of the case before us. To that point,
rarely has this Commission conducted such intensive fact-finding. We
have witnessed nine months of filings and two hearings to glean
testimony from providers, legal experts, engineers, entrepreneurs,
scholars, consumer advocates, and many others. We have heard from
thousands of individual consumers who have filed comments with us.

A careful review of the record before us leads inexorably to the
conclusion that there has been a violation of Federal Internet policy.
The actions in question had the clear effect of impeding consumers'
ability to use particular file sharing applications. This Order takes
the next step of determining whether this approach fits within the
*Internet Policy Statement*'s provision for "reasonable network
management," and rightly concludes that it is not sufficiently targeted
to fit that exception.

In reaching this conclusion, I appreciate the challenges that providers
face in developing reasonable network management policies. Through
meetings with many providers, I have heard concern about the impact of
peer-to-peer applications on their networks. The Order acknowledges that
broadband providers will need to continue to manage their networks. It
also acknowledges that different approaches may be appropriate for
different technologies.

Yet, the record here shows Comcast's approach to be over-inclusive and
ill targeted to the purported goal.[^253] I found particularly
compelling the wide, even if not unanimous, consensus among network
engineers that these actions strayed from accepted Internet standards
and norms. Moreover, the problem was compounded by Comcast's lack of
adequate disclosure policies and the inaccurate response to initial
public questions. Considering all the factors, and balancing the
competing goals set out in the *Internet Policy Statement*, the
Commission appropriately finds the conduct to be unreasonable.

Going forward, this decision sets out a marker, making clear to
providers that discriminatory network management practices must be
carefully tailored and not unreasonable. As providers craft their
network management practices, the Order sends a strong signal about the
importance of engaging industry standard setting bodies, such as the
Internet Engineering Task Force, the Internet Architecture Board, and
the Internet Society, which offer the best forum for resolving network
management issues. It is certainly preferable for facilities-based
providers and applications providers to work collaboratively, in an open
and transparent manner, without the need for governmental intervention.
To the extent that engineers can work out these issues among themselves,
it obviates the need for Commission action. I am pleased such an effort
is now underway among these engineering bodies to tackle the issues
raised by peer-to-peer traffic, and that Comcast is an active
participant in those discussions. The Order makes clear, though, that
the Commission will not abdicate its role in preserving and promoting
the open and interconnected nature of the Internet. That open platform
has been the basis for unprecedented innovation and I am confident that
the approach we take today will, in the end, lead to the greatest
opportunities for continued innovation.

We have heard concerns about the Commission's legal authority to act in
this case and about the procedural choice of a legal vehicle. Having
carefully reviewed the legal arguments, I conclude that the Commission
is on solid footing. Our analysis starts with the strong finding of the
Supreme Court which, in upholding the FCC's very decision to adopt a
looser regulatory framework for broadband Internet access, observed that
"the Commission has jurisdiction to impose additional obligations on
\[information service providers\] under its Title I ancillary
jurisdiction to regulate interstate and foreign
communications . . . ."[^254] Following this direction from the Supreme
Court, the Order sets out the Commission's legal authority under Title I
of the Act, explaining that preventing unreasonable network
discrimination directly furthers the goal of making broadband Internet
access both "rapid" and "efficient."

The Order also includes a detailed and well-reasoned analysis of our
considerable additional legal authority for this decision. Notably, the
Order is firmly based on the Congressional policies set forth in Section
230 of the Act. Section 230 states that it is the "policy of the United
States" to "promote the continued development of the Internet" and to
"encourage the development of technologies which maximize user control
over what information is received by individuals . . . who use the
Internet...."[^255] Indeed, the Commission directly advanced these very
statutory goals in adopting the *Internet Policy Statement* and
confirming that "consumers are entitled to access the lawful Internet
content of their choice" and to "run applications and use services of
their choice." Were there any doubt, the Order also finds that resolving
this complaint is ancillary to our authority under Sections 201, 256,
257, 601, and 706 of the Act.

As the Order correctly concludes, taking action against discriminatory
practices advances federal law by encouraging the efficiency of the
public Internet, ensuring reasonable charges, and promoting competition,
pursuant to Section 1. It encourages the deployment of advanced
services, pursuant to Section 706. It ensures the reasonableness of
charges incurred by preventing providers from shifting costs to
customers who purchase DSL as a common carrier service, pursuant to
Section 201. It promotes the flow of information across public
telecommunications networks, pursuant to Section 256. It eliminates
barriers to entry for entrepreneurs, pursuant to Section 257. And, it
improves individuals' ability to access a diverse array of content over
the Internet, pursuant to Sections 257 and 601.

Having determined that the Commission has more than adequate statutory
authority to address this issue, we have clear discretion about whether
to act through rulemaking or adjudication.[^256] Recent Commission
practices, and my clear preference, would have been to address this
issue through the adoption of rules. Although I have urged the
Commission to adopt rules to address concerns about network
discrimination, the Commission's decision to resolve this case through
adjudication rests on firm legal ground. It is consistent with the
Commission's long history in which we have often issued major policy
decisions in the process of adjudications, as have other Federal
agencies.

More recently, the Commission has issued repeated statements on this
issue. For example, in the *Wireline Broadband Internet Access Order*
the Commission made clear that "\[s\]hould we see evidence that
providers of telecommunications for Internet access of IP-enabled
services are violating these principles, we will not hesitate to address
that conduct."[^257] Similarly, the Commission in the
*Comcast-Adelphia-Time Warner Merger Order* specifically warned the
applicants --- including the provider subject to this action --- that
"\[i\]f in the future evidence arises that any company is willfully
blocking or degrading Internet content, affected parties may file a
complaint with the Commission."[^258]

In many ways, today's approach should ameliorate the concerns of critics
who have argued that protecting Internet freedom will lead to overbroad
mandates that cannot anticipate changes in technology. First, it makes
clear that the protections of the *Internet Policy Statement* extend
only to lawful content; hence, this Order does nothing to prevent
providers from, for example, restricting access to child pornography or
content that violates copyright law. Second, here we limit our findings
to the narrow issues before us. Third, we choose a path that preserves
the Commission's flexibility to consider alterative approaches and
technologies. Even many opponents of legislation and rules in this area
have supported a case-by-case approach like the one adopted today.
Finally, through this adjudication, we have followed a thorough and open
process: seeking comment from all parties, conducting open hearings,
gathering information and analysis from all sides. Although I support
taking this action, I do appreciate my colleagues' willingness to craft
this item in a way that preserves the Commission's ability to adopt
rules at a later date, which was critical to my support of the item.

It is apparent that some parties want the Commission to have no role at
all. Such an approach, however, is not consistent with Federal law and
Internet policy and would abdicate our critical role in fulfilling
Congress' objectives. As this Order acknowledges, we must make it a
priority to ensure that the Internet remains open and that the broadband
market remains competitive.

For all these reasons, I approve this Order.

Finally, I would like to thank the Office of General Counsel and the
staffs of our Enforcement and Wireline Competition Bureaus for their
hard work in developing this case and bolstering our legal analysis. As
the process went on, this Order improved greatly. And I appreciate the
input of the many citizens who attended and participated in our public
hearings on this issue. The level of participation was remarkable and
fitting for an issue of this importance.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

Re: *Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband
Industry Practices, Memorandum Opinion and Order* (WC Docket No. 07-52)

Today's Order reiterates the fact that "reasonable minds truly can
differ." I viewed this proceeding as a normal enforcement review,
regarding a particular complaint within the confines of the specific
circumstances presented, using a "case by case" analysis; not the
pronouncement of a "monumental decision."

My general philosophy that guides my decision-making is that prior to
government pursuing regulatory remedies in the name of the public
interest, we should first carefully consider what the private sector is
doing to enhance, expand and enrich consumers' options, and proceed with
caution unless and until there is a clear, legal basis for government
intrusion into private business --- or in this case, engineering ---
decisions. Therefore, I plan to associate myself and this statement with
the procedural and substantive legal arguments of Commissioner Robert
McDowell. Presently, we are benefiting from over \$100 billion in
broadband investment, robust industry competition and cooperation and
unprecedented consumer options in this dynamic multi-platform
marketplace. Thus, regulatory action in this instance should yield.

However, while the Commission should refrain from regulating the digital
marketplace, we do have an important function in protecting the consumer
interest. In fact, rather than concentrating on 10% of the traffic by 5%
of the heaviest bandwidth users, we should be ensuring that the 95% of
ordinary subscribers are not negatively impacted as they use their
internet for their child's homework, shopping, getting news, sending
emails and watching TV and YouTube. Rather than assuming the role of
"world wide web enforcer," perhaps the best way for the FCC to fulfill
our duties under *Internet Policy Statement* would be to assume the role
of mediator or arbitrator, helping to facilitate agreements among the
various sectors of the broadband internet industry to create an
experience that benefits all users, rather than issuing broad mandates
to protect the few.

Most significantly in the present case, it is important to note that the
FCC played a key role in helping to resolve the Comcast-BitTorrent
controversy we are considering today.

In this particular case, the Commission undertook numerous efforts to
fulfill that role, including the initiation of two public proceedings,
and the holding of well-attended and educational public hearings at
Stanford, Harvard, and Carnegie Mellon Universities.

In the wake of these efforts, the two parties announced on March 27 an
agreement to collaborate in managing web traffic and to work together to
address network management and content distribution. First, Comcast
announced that it will migrate by year-end 2008 to a capacity management
technique that is protocol agnostic. Second, the two companies also
agreed to work with other ISPs, technology companies, and the Internet
Engineering Task Force to explore and develop new distribution
technologies for delivery of media content. It is also important to note
that BitTorrent acknowledged the need of ISP's to manage their networks
during times of peak congestion.

Outside of the agreement, other progress is being made. This spring,
Comcast and Pando Networks, Inc. announced plans to lead an
industry-wide effort to develop a P2P Users' Bill of Rights. This effort
is now seeing implementation under the Distributed Computing Industry
Association, which is focused on developing best practices to ensure an
optimum online consumer experience. Additionally, the P4P Working Group,
which includes Comcast, other major U.S. broadband providers, and
applications companies, continues to work together and participate in
trials focused on maximizing consumers' broadband experience.

Clearly these efforts in mitigation of the underlying issues of concern
were facilitated by the Commission's focus and attention. As a trained
mediator, I believe that resolving matters in this fashion is the best
way to serve the public interest and thus ensure an open internet for
*all* consumers, not just the petitioning few.

I also must stress the importance of disclosure and transparency for all
customers of internet service providers. Throughout our public hearings
concerns were raised regarding the lack of information being provided by
ISPs to their customers. It seems that there was a "communication gap"
between Comcast and its consumers in regard to how subscribers received
information on network management and what their service expectations
were. Clearly, the consumer disclosure documents that Comcast used were
not adequate notification of its practices. As someone who has spent
most of my career looking out for the best interests of the consumer,
this concerns me. With the explosive growth enjoyed by broadband
internet providers and its resulting increase in the competitive
landscape, consumers must be able to both know and understand what they
are getting and paying for.

ISP's must do better. Comcast's recent revision of its user policy and
the posting of network management "frequently asked questions" on its
website illustrate their recognition of the need for improvement. The
company is now alerting customers that it may, on a limited basis,
temporarily delay certain P2P traffic when that traffic has, or is
projected to have, an adverse effect on other customers' use of the
service. Comcast's efforts to improve its disclosures is another
positive result emanating from the Commission's oversight role, further
mitigating the need for additional government action. Other arms of
government are also spotlighting consumer disclosure from the FTC to
Congress so there is great impetus for even more improvement by the
private sector without a government mandate.

The FCC has an important function in protecting the consumer, and we
must remain vigilant to ensure that the private sector is responsible to
their concerns. We can use our role as public servants, educators and
the "bully pulpit" to shine a light on companies that fall short and
hold their feet to the fire and prompt industry to action. With
corporate revenues rising and customer satisfaction scores falling,
companies offering broadband service must make disclosure and
transparency a priority.

Lastly, but of immense importance to thousands of creators, researchers,
content producers and artists across this entire country, I would like
to address the fact that this order provides minimal substantive
discussion about the role network managers have in filtering and
guarding their platforms against the growing problem of illegal content
distribution, and the potentially adverse effect regulatory prescription
can have on stemming its growth.

As my colleagues on the Commission know, a long-time concern of mine has
been fighting the proliferation of online child pornography and
unauthorized illegal downloads of creative content. In fact, next week I
will be traveling to Tennessee to attend the launch of a partnership
between Connected Nation and iKeepSafe. Connected Nation provides
computers to children across the state of Tennessee and iKeepSafe
provides DVDs and other educational materials to teach children about
the risks associated with internet use and how they can protect
themselves online --- yet another example of a positive market and
industry driven public-private partnership to address a very real
problem: child online safety.

While I may be the only Commissioner raising these concerns, certainly
many Attorneys General, the National Coalition for Missing and Exploited
Children and even leaders in other countries share these concerns. If
the Commission interferes with the ISPs ability to manage their networks
by imposing a strict legal standard, will such regulation have a
freezing effect on the fight against illegal content? By requiring ISPs
to "carefully tailor" their network management practices, I am concerned
that we will potentially be stripping them of the important tools they
use --- and we need --- to purge their platforms of illegal content
which negatively impacts every type of intellectual property, from
software to pharmaceuticals to of course, songwriters and motion
pictures.

Further, as some in the content industry have rightly highlighted, all
four principles enumerated in the FCC's Internet Policy Statement relate
*only* to the protection of lawful content. None of these principles
protects unlawful conduct. Thus "any remedy that inadvertently
forecloses ISPs from pursuing and denying access to
[unlawful]{.underline} content would be inconsistent with the clear line
between lawful and unlawful content drawn in the FCC's policy."[^259]
Most parents would surely agree. The main point is that even if the
Commission *does not* *intend* to frustrate network managers' attempts
to guard against illegal content, the mandate of regulation in this
order can potentially reverse many of the significant strides the
private sector has made and continues to make to address this critically
important issue. With the U.S. Chamber of Commerce reporting that piracy
negatively costs the U.S. economy up to \$250 billion a year, this
hardly seems like the right path to follow.

Through innovative technology, unique public private partnerships and
collaborative solutions --- like another recent agreement between the
National Center for Missing and Exploited Children and the cable
industry to identify, block and ultimately report illegal activity to
law enforcement --- network managers are making great strides *without*
regulatory interference from the government.

Finally, it is important to highlight that effective network management
plays a key role in protecting customers from spam, phishing, computer
viruses and worms, Trojan horses, and denial of service attacks. If we
tie the hands of network managers, there is a good chance this type of
malware could neither be identified nor contained before affecting
users. If we are truly looking to improve the consumer online
experience, avoid network congestion and protect privacy, it does not
seem prudent to block internet service providers' ability to purge their
platforms of these technological plagues.

I applaud the Chairman for focusing the Commission's and the public's
attention on this issue, and for using it as a vehicle for hearings
around the country over the past year. In addition to educating
ourselves, I believe these forums have served an important role in
outreach and education of the public as they navigate this ever-changing
technological revolution. Through these efforts, the Commission has been
able to shine a light on particular practices and consumer concerns, and
the private sector has responded. Had we continued down our generally
deregulatory path regarding information services, we would have not
taken the more interventionist approach adopted in this item, which is
unnecessary given the industry-wide actions already underway, as well as
the specific, ameliorating steps taken by the company to address the
allegations in the complaint at hand. Therefore, I respectfully dissent.

**DISSENTING STATEMENT OF**

**COMMISSIONER ROBERT M. McDOWELL**

RE: *Formal Complaint of Free Press and Public Knowledge Against Comcast
Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband
Industry Practices,* *Petition of Free Press et al. for Declaratory
Ruling that Degrading an Internet Application Violates the FCC's
Internet Policy Statement and Does Not Meet an Exception for "Reasonable
Network Management,"* File No. EB-08-IH-1518, WC Docket No. 07-52

First, I'd like to thank the public interest groups who brought this
matter to our attention for doing so. I'd also like to thank the
Chairman for having us all focus on this case. Shining a spotlight on
these issues has helped raise awareness and spark a debate which has
been constructive, at times.

All of us can agree on a few things. The Internet should remain open and
free. Our policies, and the policies of all governments everywhere,
should promote such freedom. We can also agree that network operators
could do a better job of educating consumers regarding the limitations
of their networks and how those networks need to be managed to keep the
Internet functioning. We have seen a lot of improvement in that area in
the past couple of months due, in part, to this proceeding.

I also hope we can agree that applications providers could do a better
job of designing software that works more efficiently on networks that
were designed and built sometimes decades ago. The providers of certain
peer-to-peer (P2P) applications, for example, could do a better job of
making consumers aware that their applications require consumers'
computers to work 24 by 7 in ways that can tie up their computing power
and reduce broadband speeds for themselves and their neighbors.

I think we can also agree --- and in this I concur in Commissioner
Tate's statement --- that it is tremendously important for network
operators to be authorized to guard against unlawful Internet content
such as child pornography, for the Commission to act as a mediator
rather than a regulator when appropriate, and for network operators to
adequately disclose their terms of service.

In that spirit, I am concerned that we are witnessing a deepening
division between some in the application industry and some network
operators. Both sectors are indispensable to our burgeoning Internet
economy. History teaches us that we are all better off if we reject the
rhetoric of the extremes on both sides and resolve technological
disputes through collaboration and negotiation. Looking back through the
long lens of time, it is obvious that the Internet is the greatest
free-market success story of all time precisely because conflicts were
resolved in this manner. Continued escalation of rhetoric serves no one
well, least of all American consumers.

With those introductory remarks, it is time to move on to decide the
matter at hand. Independent administrative agencies are interesting
creatures. We are not part of the executive, legislative or judicial
branches of government, yet we have quasi-executive, -legislative and
-judicial powers. It is primarily our quasi-judicial powers we are
exercising today. Accordingly, we are compelled by statute to examine
the procedural issues before us as well as to weigh the facts against
the current state of the law. Commissioner Tate and I received the
current version of the order at 7 p.m. last night, with about half of
its content added or modified. As a result, even after my office
reviewed this new draft into the wee hours of the morning, I can only
render a partial analysis.

As a procedural matter, what we have before us today is an order
regarding a pleading that was filed as a "formal complaint." Our rules
mandate that formal complaints apply only to common carriers.[^260] As
the Supreme Court held in the *Brand X* case,[^261] and as the
Commission has held on numerous occasions since, cable modem service is
not common carriage but, rather, an information service under Title I of
the Act.[^262]

If the complaint survives this first step, we should next look to see if
we have jurisdiction to enforce our rules. I agree that we do have
jurisdiction, in general, over these areas.[^263] However, we do not
have any rules governing Internet network management to enforce. Since
the Supreme Court's decision in *Brand X*, we have been busy taking
broadband services out of the common carriage realm of Title II and
classifying them as largely *unregulated* Title I information
services.[^264] It does not take a law degree to understand that once we
did that, the rules of Title II would no longer apply to broadband
services.

Furthermore, the Commission did not intend for the Internet Policy
Statement to serve as enforceable rules but, rather, as a statement of
general policy guidelines.[^265] Based on their remarks at the time, at
least two of my colleagues in the majority agreed.[^266] Indeed, in the
*Wireline Broadband Order*, released the same day, the Commission
clearly contemplated initiating a rulemaking in response to allegations
of misconduct, emphasizing its "authority to promulgate
regulations"[^267] -- regulations not written at that time, or today.
Such intentions were, I thought, reinforced in 2007 when I voted to
adopt the *Broadband Industry Practices Notice*, the first step in a
*rulemaking* proceeding designed to determine whether rules governing
network management practices were necessary.[^268] As I stated at that
time, we were taking "a sensible, thoughtful and reasonable step that
should give the Commission a factual record upon which to make a
reasoned determination whether additional action is justified or not,
pursuant to the Commission's ancillary jurisdiction to regulate
interstate and foreign communications."[^269] The additional action I
contemplated was the logical move from an NOI to an NPRM --- not an
unprecedented, and likely unsustainable, jump to rulemaking by
adjudication. Like it or not, no notice of proposed rulemaking, with a
chance for public comment, was ever issued. Nothing regulating Internet
network governance has been codified in the Code of Federal Regulations.
In short, we have no rules to enforce. This matter would have had a
better chance on appeal if we had put the horse before the cart and
conducted a rulemaking, issued rules and *then* enforced them.

The majority's view of its ability to adjudicate this matter solely
pursuant to ancillary authority is legally deficient as well. Under the
analysis set forth in the order, the Commission apparently can do
*anything* so long as it frames its actions in terms of promoting the
Internet or broadband deployment. The fact that the D.C. Circuit has
affirmed the Commission's exercise of ancillary authority in very
different adjudicatory proceedings and in the absence of regulations is,
in my view, unpersuasive.[^270] The Commission in those cases was acting
pursuant to a provision of the statute that provides the Commission
express grant of authority[^271] or a statutory provision that imposed
an "explicit" obligation on a class of entities that legislative history
indicated was intended to be covered by the statute.[^272] In this case,
none of the sections of the Act identified in the order impose explicit
and relevant obligations on Comcast, or any other broadband network
operator. The Commission likewise overreaches in attempting to justify
this order by extension of sections 1, 201, 256, 257 or 604. The
majority presents no convincing argument that its regulation of a
broadband network operator's management practices is "reasonably
ancillary to the effective performance of the Commission's various
responsibilities" under those sections of the Act.[^273] Thus, in the
absence of rules, neither the general policy goals set forth in sections
230 and 706 of the Act nor the attempt to extend our authority in
sections 1, 201, 256, 257 or 604 provide enough of a legal basis for us
to act. If Congress had wanted us to regulate Internet network
management, it would have said so explicitly in the statute, thus
obviating any perceived need to introduce legislation as has occurred
during this Congress. In other words, if the FCC already possessed the
authority to do this, why have bills been introduced giving us the
authority we ostensibly already had?

For the same reasons, the majority's arguments that the *Adelphia/Time
Warner/Comcast* *Order* somehow constituted notice of the Commission's
intent to adjudicate the Policy Statement,[^274] and that Comcast's
consummation of the merger approved in the *Adelphia/Time
Warner/Comcast* *Order* constituted a waiver of its right to challenge
such an adjudication,[^275] fail. The Commission can not possibly be
seen to have given notice to Comcast (or any other party) of a
preference to adjudicate the Policy Statement because the Commission
lacks the authority to adjudicate the matter in the absence of rules.

Further, although it relies heavily on the Supreme Court's description
of an agency's adjudicatory authority in *Chenery II*, the majority
ignores that same court's admonition to avoid adjudications that may
have a "retroactive effect."[^276]

Additionally, today's order relies on the *Madison River* consent decree
of 2005 to justify today's actions.[^277] The *Madison River* case
differs in significant ways from what we have before us. For starters,
none of the parties involved settled their differences "out of court" as
Comcast and BitTorrent have done here. No arguments regarding network
congestion and management were at play, as they are here. And most
importantly, the Commission clearly relied on its Title II jurisdiction
over Madison River, a rural local exchange carrier, rather than whatever
ancillary jurisdiction it might have had under Title I.[^278]

Perhaps most puzzling of all is the Commission's use of a "strict
scrutiny" type standard to strike down the actions of a private party
engaged in management of its network. The majority is too clever to call
its standard of review "strict scrutiny," and with good reason. It is
unprecedented, and inappropriate, for the Commission to judge the
actions of a private actor by a standard that has generally been
reserved for determining whether the *government* has trampled on the
fundamental constitutional rights of *individuals*. The Commission
certainly has never used it to restrain private parties in their
interactions with other private parties. Using a strict scrutiny
standard in this context, especially one wearing a transparent disguise,
is sure to doom this order on appeal.

Even if the complaint was not procedurally deficient and we had rules to
enforce, the next step would be to look at the strength of the evidence.
The truth is, the FCC does not know what Comcast did or did not do. The
evidence in the record is thin and conflicting. All we have to rely on
are the apparently unsigned declarations of three individuals
representing the complainant's view, some press reports, and the
conflicting declaration of a Comcast employee.[^279] The rest of the
record consists purely of differing opinions and conjecture. As the
majority embarks on a regulatory journey into the realm of the
unknowable, the evidentiary basis of its starting point is tremendously
weak, to the point of being almost non-existent. In a proceeding of this
magnitude, I do not understand why, in the absence of strong evidence,
the Commission did not conduct its own factual investigation under its
enforcement powers. The Commission regularly takes such steps in other
contexts that, while important, do not have the sweeping effect of
today's decision.[^280]

Additionally, the majority does not address the issue of motive. The
allegations before us boil down to a suspicion that Comcast was
motivated not by a need to manage its network, but by a desire to
discriminate against BitTorrent and similar technologies for
anticompetitive reasons. If Comcast intended to harm its competitors,
would it not have targeted other online video providers? Americans
download more than eleven billion Internet videos per month, yet the
record contains no evidence that Comcast is interfering with sites like
YouTube which do not use pipe-clogging P2P software. The record also
does not speak to the fact that other prominent video sites, such as
Joost, use more efficient P2P software that does not cause the same
congestion problems as BitTorrent. As a result of their use of software
that works better on existing networks, virtually no network management
is needed. The majority's silence on this key exculpatory point is
deafening.

Finally, even if this case were not procedurally and legally deficient
in so many regards, we must address whether the policies the majority is
adopting today are in the public interest. And the answer is no.
Ironically, today's action by the FCC may actually result in *slower*
online speeds for 95 percent of America's Internet consumers. That is
because, up until this point, engineers made engineering decisions, not
unelected bureaucrats. Although I have a tremendous amount of respect
for each of my colleagues, none of us has an engineering degree.

As a result, the practical effect of today's order requires *all*
network operators -- cable, telcos and wireless providers -- to treat
all Internet traffic equally. That sounds good if you say it fast. But
the reality is that the Internet can function only if engineers are
allowed to *discriminate* among different types of traffic. Now, the
word "discriminate" carries with it extremely negative connotations, but
to network engineers it means "network management." Discriminatory
conduct, in the network management context, does not necessarily mean
anticompetitive conduct. And this is where a lot of the
misunderstandings come into play. As human beings, we do not tolerate
delay or interference when it comes to certain kinds of applications.
For instance, we expect our online movies to be clear and not distorted
by competing data coming over the same Internet connection. For us to
enjoy online video without interruption or distortion, video bits have
to be given priority over, say, email bits. But now that all traffic
must be treated equally, that is going to change. The new regime is
tantamount to a congested downtown area without stoplights. Gridlock is
likely to result.

The majority is creating regulatory uncertainty for engineers. Under the
new regulatory rubric of the undefined term "reasonable network
management," engineers do not know if they are allowed to manage your
Internet experience so you can watch online video without distortion,
pops, and hisses. Similarly, they now do not know what the government
will allow them to do, or not do, to manage the growing flood of
peer-to-peer applications. Here's the problem: If you use cable modem or
wireless broadband services, you may not know it, but you share
bandwidth with your neighbor. That's just the nature of these networks,
many of which were built long before P2P became popular. If your
neighbor uses more bandwidth, that leaves less for you to use. This is
especially true when your neighbor uses peer-to-peer applications. Many
P2P applications consume as much bandwidth as they can find. In fact,
only five percent of all Internet consumers are using 90 percent of the
bandwidth due to P2P. Some estimate that seventy-five percent of the
world's Internet traffic is P2P. As a result of increased P2P usage,
many consumers' "last mile" Internet connections are getting clogged.
These electronic traffic jams slow down the Internet for the vast
majority of consumers who do not use P2P software to watch videos on
YouTube or surf the Web. In short, this flood of data has created a
tyranny by a minority. By depriving engineers of the freedom to manage
these surges of information flow by having to treat all traffic equally
as the result of today's order, the Information Superhighway could
quickly become the Information Parking Lot. The regulatory law of
unintended consequences is sure to prevail.

While we at the FCC are trying to spur more competitive build-out of
vital last-mile facilities, especially fiber and wireless platforms,
this congestion problem will not be resolved merely by building fatter
and faster pipes. In fact, according to Japan's government, P2P
congestion is creating similar network management problems there even
though that country advertises broadband speeds far in excess of ours.

The Internet has faced several congestion "crises" like the current one
over the years. Each time, groups comprised of engineers, academics,
software developers, Internet infrastructure builders and others have
worked together to fix the problems of the day. Over time, some of these
groups have become more formalized such as the Internet Society, the
Internet Engineering Task Force and the Internet Architecture Board.
These groups have remained largely self-governing, self-funded and
non-profit -- with volunteers acting in their own capacities and not on
behalf of their employers. No government owns or regulates these groups;
rather, governments can act as observers and collaborative partners. The
Internet has been governed in a bottom-up "wiki" manner rather than a
top-down government-knows-best style. The Internet has flourished as a
result.

For quite some time now, these and other groups have been working on the
P2P congestion problem, and they have been producing positive results.
Since the Internet's inception, similar work has progressed without a
government mandate or regulatory framework. Now that era had ended.

For the first time, today our government is choosing regulation over
collaboration when it comes to Internet governance. The majority has
thrust politicians and bureaucrats into engineering decisions. It will
be interesting to see how the FCC will handle its newly created power
because, as an institution, we are incapable of deciding any issue in
the nanoseconds of Internet time. Furthermore, asking our government to
make these decisions will mean that every two to four years the ground
rules could change depending on election results. Internet engineers
will find it difficult, if not impossible, to operate in a climate like
that. Today's action is raising many questions across the globe. Is the
next step for the FCC to mandate that network owners must ask the
government for permission before serving their customers by managing
surges of information flow? As a result of today's actions, Internet
lawyers around the country are likely advising their clients to do just
that. Will the FCC be able to handle *that* case load? Will other
countries like China follow suit and be able to regulate American
companies' network management practices, with effects that could be felt
here? How do we know where to draw the line given that the Internet is
an interconnected global network of networks? Given the Internet's
interconnectivity, are we now starting a global race to the lowest
common denominator of maximum government regulation all in the name,
ironically, of Internet *freedom*? Keep in mind that societies that
regulate the Internet less tend to be more democratic, while regimes
that regulate it more tend to be less democratic.

I am being asked these and many other questions, and I don't have
answers to them. No one does. But two things are for sure, this debate
will continue, and the FCC has generated more questions than it has
answered.

A better model for the majority to have adopted today would have been to
allow the long-standing and time-tested collaborative Internet
governance groups to continue to produce the fine work they have
successfully put forth for years. If they find themselves unable to
agree (which has never happened -- not even in this case before us),
then the government should examine the situation and act accordingly.
Perhaps the FCC could have created a new role for itself by spotlighting
complaints of potentially nefarious network practices and conveying them
to the IETF for collaborative review and action. Sometimes merely
shining sunlight on controversies can produce amazingly beneficial
effects.

In that vein, some have argued that without the complaint, the
Comcast/BitTorrent matter would never have been settled last March. They
may be correct. In the law, we call this a litigation strategy. Courts
encourage litigants to settle their disputes before trial. Once settled,
courts dismiss cases as part of a policy to encourage future
settlements. Here the majority is doing the opposite. Even though
Comcast and BitTorrent settled and pled for no further "government
intervention," the majority has gone forward with this adjudication. The
net effect punishes those that settle and discourages future
settlements.

So today, for the first time in Internet history, we say "goodbye" to
the era of collaboration that served the Internet community and
consumers so well for so long; and we say "hello" to unneeded regulation
and all of its unintended consequences. Accordingly, I respectfully
dissent.

[^1]: *See* RFC 793/Internet Standard STD 7, *available at*
    http://tools.ietf.org/html/rfc793 (last visited July 31, 2008). "TCP
    is the dominant transport-layer protocol on the Internet today,
    carrying more than 90% of all data traversing backbone links."
    Letter from Jack Zinman, General Attorney, AT&T Services, Inc., to
    Marlene H. Dortch, Secretary, FCC, Attach. at 1 (Apr. 25, 2008)
    (AT&T RST Packet *Ex Parte*) (all letters were filed in WC Docket
    No. 07-52 unless otherwise noted). Other common protocols for
    packet-encapsulated data include User Datagram Protocol and
    Encapsulating Security Payload. *See* *Broadband Industry
    Practices*, WC Docket No. 07-52, Notice of Inquiry, 22 FCC Rcd 7894,
    7896 n.16 (Apr. 16, 2007) (*Broadband Industry Practices Notice*).
    Internet users rely on the Internet Protocol to perform the
    lower-level function of routing packets from one computer to the
    next. *IP-Enabled Services*, WC Docket No. 04-36, Notice of Proposed
    Rulemaking, 19 FCC Rcd 4863, 4866, para. 4 (2004) (*IP-Enabled
    Services Notice*).

[^2]: *IP-Enabled Services Notice*, 19 FCC Rcd at 4866 n.12.

[^3]: AT&T RST Packet *Ex Parte*, Attach. at 2; *see also* EFF Reply
    Comments, Attach. at 1 ("When received, RST packets will generally
    cause ordinary networking software to close its side of the
    connection in response.").

[^4]: *See Appropriate Framework for Broadband Access to the Internet
    over Wireline Facilities; Review of Regulatory Requirements for
    Incumbent LEC Broadband Telecommunications Services; Computer III
    Further Remand Proceedings: Bell Operating Company Provision of
    Enhanced Services, 1998 Biennial Review --- Review of Computer III
    and ONA Safeguards and Requirements; Inquiry Concerning High-Speed
    Access to the Internet Over Cable and Other Facilities; Internet
    Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for
    Broadband Access to the Internet Over Cable Facilities; Broadband
    Industry Practices*, CC Docket Nos. 02-33, 01-337, 95-20, 98-10, GN
    Docket No. 00-185, CS Docket No. 02-52, WC Docket No. 07-52,
    Petition for Declaratory Ruling of Free Press, Public Knowledge,
    Media Access Project, Consumer Federation of America, Consumers
    Union, Information Society Project at Yale Law School, Professor
    Charles Nesson, Co-Director of the Berkman Center for Internet &
    Society, Harvard Law School, Professor Barbara van Schewick, Center
    for Internet & Society, Stanford Law School, at 7 (Nov. 1, 2007)
    (Free Press Petition).

[^5]: *Broadband Industry Practices*, WC Docket No. 07-52, Petition to
    Establish Rules Governing Network Management Practices by Broadband
    Network Operators of Vuze, Inc., at 7 (Nov. 14, 2007) (Vuze
    Petition) ("Torrent technologies leverage the power of many
    individual computers by enabling each computer interested in a piece
    of content to obtain small pieces of it from multiple other
    computers, and simultaneously play the same role to others who seek
    the same content in the future.").

[^6]: *Id.*; *see also* *id.* at 7--8 ("\[T\]orrent technology uses
    fewer resources than traditional non-P2P protocols such as HTTP
    because distributed computing permits uploads and downloads to be
    resumed mid-way rather than restarted, and transmission errors can
    easily be fixed without resending an entire file."); Trausch
    Comments at 2 ("\[BitTorrent's\] protocol is far more efficient at
    transferring files which are in high demand than conventional
    client-server file and resource distribution mechanisms . . . .").

[^7]: The infamy of the Pirate Bay --- "the most notorious, most hunted
    digital-piracy outfit in the world" --- largely stems from its
    assisting BitTorrent users in downloading a vast array of videos in
    violation of copyright laws. *See* Dan Mitchell, *Pirates Take
    Sweden*, New York Times, Aug. 19, 2006, *available at*
    http://www.nytimes.com/2006/08/19/business/19online.html (last
    visited July 31, 2008).

[^8]: *See* Vuze Petition at 7 n.8.

[^9]: *See* *id.* at 5.

[^10]: *See* *id.* at 8.

[^11]: Free Press Comments at 48.

[^12]: *See id*. at 48--52. For example, Comcast's pay-per-view revenue
    increased 22% in 2007. *See* Comcast Press Release, "Comcast Reports
    2007 Results and Provides Outlook for 2008," at 3 (Feb. 14, 2008).

[^13]: Free Press Comments at 51.

[^14]: *See, e.g.*, Ernesto, *Comcast Throttles BitTorrent Traffic,
    Seeding Impossible*, TorrentFreak, Aug. 17, 2007, *available at*
    http://torrentfreak.com/comcast-throttles-bittorrent-traffic-seeding-impossible/
    (last visited July 31, 2008); Scott Gilbertson, *It's Comcastic: Is
    Comcast Blocking Users from Seeding Torrents?*, Wired Monkey_Bites,
    Aug. 20, 2007, *available at*
    http://blog.wired.com/monkeybites/2007/08/its-comcastic-i.html.

[^15]: Marguerite Reardon, *Comcast Denies Monkeying with BitTorrent
    Traffic*, CNETNews.com News Blog, August 21, 2007, *available at*
    http://www.news.com/8301-10784_3-9763901-7.html (last visited July
    31, 2008).

[^16]: *Id*.

[^17]: Peter Svensson, *Comcast Blocks Some Internet Traffic, AP Testing
    Shows*, Associated Press, Oct. 19, 2007.

[^18]: *Id.*

[^19]: *Id.*

[^20]: *Id*.

[^21]: *Id.*

[^22]: *Id.*

[^23]: *See* EFF Reply Comments, Attach. at 2 ("EFF's tests corroborated
    \[the Associated Press'\] results --- comparisons of packet logs
    between two communicating parties showed that an intervening
    computer (almost certainly Comcast's) was injecting forged RST
    packets into the communications, effectively telling both ends of
    the connection to stop communicating."). Given the current state of
    the record, we decline to address EFF's allegations that Comcast may
    have interfered with TCP connections using other non peer-to-peer
    protocols, such as hyper text transfer protocol (HTTP). *Id.* at 3.

[^24]: *See id*. at 5.

[^25]: Comcast Comments at 27--28.

[^26]: Defendants' Memorandum of Law in Support of Motion for Judgment
    on the Pleadings at 6, *Hart v. Comcast of Alameda*, No.
    C-07-06350-PJH (N.D. Cal. Mar. 14, 2008) (Comcast Motion for
    Judgment).

[^27]: Comcast Comments at 31.

[^28]: Letter from Mary McManus, Senior Director of FCC and Regulatory
    Policy, Comcast Corporation, to Kris A. Monteith, Chief, Enforcement
    Bureau, File No. EB-08-IH-1518, at 5 (Jan. 25, 2008) (Comcast
    Response Letter).

[^29]: Topolski Comments at 3--4 (Feb. 25, 2008).

[^30]: *Id.* at 4.

[^31]: Comcast's statements in its comments and response to Free Press's
    complaint raise troubling questions about Comcast's candor during
    this proceeding. *See* 47 C.F.R. § 1.17.

[^32]: Letter from Kathryn A. Zachem, Vice President of Regulatory
    Affairs, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC,
    at 5 (July 10, 2008) (Comcast Technical *Ex Parte*).

[^33]: Formal Complaint of Free Press and Public Knowledge against
    Comcast Corporation for Secretly Degrading Peer-to-Peer
    Applications, File No. EB-08-IH-1518 (Nov. 1, 2007) (Free Press
    Complaint). Free Press sought, among other remedies, a permanent
    injunction because such a remedy would redress society's "loss of
    unpredictable innovation" and would "encourage innovation in
    Internet applications and content, as well \[as\] promot\[e\] the
    deployment and uptake of high-speed Internet access." *Id.* at 33;
    *see also* Jonathan L. Zittrain, *The Generative Internet*, 119
    Harv. L. Rev. 1974, 1987--94 (2006) (discussing the open Internet's
    importance in sparking innovation).

[^34]: Free Press Petition at i; *see also* *Appropriate Framework for
    Broadband Access to the Internet over Wireline Facilities; Review of
    Regulatory Requirements for Incumbent LEC Broadband
    Telecommunications Services;* Computer III *Further Remand
    Proceedings: Bell Operating Company Provision of Enhanced Services;
    1998 Biennial Regulatory Review --- Review of Computer III and ONA
    Safeguards and Requirements; Inquiry Concerning High-Speed Access to
    the Internet Over Cable and Other Facilities; Internet Over Cable
    Declaratory Ruling; Appropriate Regulatory Treatment for Broadband
    Access to the Internet Over Cable Facilities*, CC Docket Nos. 02-33,
    01-337, 98-10, 95-20, GN Docket No. 00-185, CS Docket No. 02-52,
    Policy Statement, 20 FCC Rcd 14986 (2005) (*Internet Policy
    Statement*).

[^35]: Requests from Numerous Parties, File No. EB-08-IH-1518
    (aggregation of 22,284 requests sent to fccinfo@fcc.gov from
    November 1, 2007, through January 14, 2008).

[^36]: *See* Letter from Kris A. Monteith, Chief, Enforcement Bureau, to
    Mary McManus, Senior Director of FCC and Regulatory Policy, Comcast
    Corporation, File No. EB-08-IH-1518 (Jan. 11, 2008).

[^37]: *See* Comcast Response Letter.

[^38]: Free Press Petition at i.

[^39]: Vuze Petition at ii.

[^40]: *Broadband Industry Practices*, WC Docket No. 07-52, Comment
    Sought on Petition for Declaratory Ruling Regarding Internet
    Management Policies, Public Notice, 23 FCC Rcd 340 (WCB 2008);
    *Broadband Industry Practices*, WC Docket No. 07-52, Comment Sought
    on Petition for Rulemaking to Establish Rules Governing Network
    Management Practices by Broadband Network Operators, 23 FCC Rcd 343
    (WCB 2008). A list of commenters to the *Free Press Petition* is
    attached as an Appendix. Because the questions addressed in the Free
    Press Complaint and in the Free Press Petition are substantially
    similar and because Free Press and Comcast have used WC Docket No.
    07-52 as the vehicle for filings related to both the Complaint and
    the Petition, we address both here and consolidate the records of
    the two proceedings. We also note that the Free Press Petition could
    be considered in part an informal complaint pertaining to Comcast's
    conduct. *See, e.g.*, Free Press Petition at 7--14.

[^41]: 47 U.S.C. § 230(a)(2).

[^42]: 47 U.S.C. § 230(a)(4).

[^43]: 47 U.S.C. § 230(b)(1).

[^44]: 47 U.S.C. § 230(b)(3).

[^45]: *See* *Vonage Holdings Corporation Petition for Declaratory
    Ruling Concerning an Order of the Minnesota Public Utilities
    Commission*, WC Docket No. 03-211, Memorandum Opinion and Order, 19
    FCC Rcd 22404, 22426, para. 35 (2004) (*Vonage Order*) ("While we
    acknowledge that the title of section 230 refers to 'offensive
    material,' the general policy statements regarding the Internet and
    interactive computer services contained in the section are not
    similarly confined to offensive material.").

[^46]: 20 FCC Rcd 14986.

[^47]: *Id.* at 14987, paras. 2--3. *See also* *National Cable &
    Telecomms. Ass'n v. Brand X Internet Services*, 545 U.S. 967, 996
    (2005) ("\[T\]he Commission remains free to impose special
    regulatory duties on facilities-based ISPs under its Title I
    ancillary jurisdiction."); *Broadband Industry Practices Notice*, 22
    FCC Rcd at 7896, para. 4 ("The Commission, under Title I of the
    Communications Act, has the ability to adopt and enforce the net
    neutrality principles it announced in the *Internet Policy
    Statement*.").

[^48]: *Internet Policy Statement*, 20 FCC Rcd at 14988, para. 4
    (emphasis omitted).

[^49]: *Id.*

[^50]: *Id.* at 14988, n.15.

[^51]: *Id*. at 14988, para. 5.

[^52]: *Id*.

[^53]: *Appropriate Framework for Broadband Access to the Internet Over
    Wireline Facilities; Universal Service Obligations of Broadband
    Providers; Review of Regulatory Requirements for Incumbent LEC
    Broadband Telecommunications Services;* Computer III *Further Remand
    Proceedings: Bell Operating Company Provision of Enhanced Services;
    1998 Biennial Regulatory Review --- Review of* Computer III *and ONA
    Safeguards and Requirements; Conditional Petition of the Verizon
    Telephone Companies for Forbearance Under 47 U.S.C. § 160(c) with
    regard to Broadband Services Provided via Fiber to the Premises;
    Petition of the Verizon Telephone Companies for Declaratory Ruling
    or, Alternatively, for Interim Waiver with Regard to Broadband
    Services Provided via Fiber to the Premises; Consumer Protection in
    the Broadband Era*, WC Docket No. 04-242, 05-271, CC Docket Nos.
    95-20, 98-10, 01-337, 02-33, Report and Order and Notice of Proposed
    Rulemaking, 20 FCC Rcd 14853, 14853, para. 1 (2005) (*Wireline
    Broadband Order*), *petitions for review denied*, *Time Warner
    Telecom, Inc. v. FCC*, 507 F.3d 205 (3d Cir. 2007).

[^54]: *Id*. at 14907, para. 96.

[^55]: *See* Brief for the Respondents States and Consumer Groups in
    Opposition to Petitioners at 36, 38--39, *Brand X*, 545 U.S. 967
    (2005) (Nos. 04-277, 04-281); Brief of the National Association Of
    Regulatory Utility Commissioners as Amicus Curiae Supporting
    Respondents and Affirmance of the Decision Below at 9, *Brand X*,
    545 U.S. 967 (2005) (Nos. 04-277, 04-281).

[^56]: 545 U.S. at 976.

[^57]: *Id*. at 996.

[^58]: Comcast Comments at 53; *see also* Comcast Response Letter at
    13--15; Time Warner Reply Comments at 15 ("\[T\]he Commission's
    authority to regulate broadband providers' network management
    practices is uncertain as a general matter.").

[^59]: *United States v*. *Southwestern Cable Co.*, 392 U.S. 157, 172
    (1968) (*Southwestern Cable Co.*).

[^60]: *AT&T Corp. v. Iowa Utils. Bd.*, 525 U.S. 366, 380 (1999).

[^61]: 47 U.S.C. § 152(a).

[^62]: *Southwestern Cable Co.*, 392 U.S. at 178.

[^63]: *See* *Midwest Video Corp. v. FCC*, 571 F.2d 1025, 1040 (8th Cir.
    1978) ("To be 'reasonably ancillary,' the Commission's rules must be
    reasonably ancillary to something."), *aff'd*, *FCC v. Midwest Video
    Corp.*, 440 U.S. 689, 696 (1979) (*Midwest Video II*).

[^64]: 47 U.S.C. § 230(b). The requirements that a subject falls with
    the Commission's general jurisdictional grant under Title I and that
    the regulations are reasonably ancillary to the effective
    performance of one of the Commission's statutory responsibilities
    have been a solid foundation for the Commission's ancillary
    authority for forty years. *See* *Southwestern Cable Co.*, 392 U.S.
    at 178; *American Library Ass'n v. FCC*, 406 F.3d 689, 691--92 (D.C.
    Cir. 2005).

[^65]: *See* Telecommunications Act of 1996, Pub. L. 104-104, § 509, 110
    Stat. 56, 137 (1996) ("Title II of the Communications Act of 1934
    (47 U.S.C. 201 *et seq*.) is amended by adding at the end the
    following new section . . . .").

[^66]: 47 U.S.C. § 151; *Midwest Video II.*, 440 U.S. at 696 ("The
    Commission derives its regulatory authority from the Communications
    Act of 1934."); *Southwestern Cable Co.*, 392 U.S. at 168 ("\[The
    Commission is the\] single Government agency with unified
    jurisdiction and regulatory power over all forms of electrical
    communication." (internal quotation marks omitted)).

[^67]: *Id.* (The Commission "shall" perform these functions.); 47
    U.S.C. § 152(a) ("The provisions of this act shall apply to all
    interstate and foreign communications by wire or radio . . . .").

[^68]: 47 U.S.C. § 154(i); *see also* 47 U.S.C. § 303(r) (authorizing
    the Commission "from time to time, as public convenience, interest,
    or necessity requires . . . \[to\] prescribe such restrictions and
    conditions, not inconsistent with law, as may be necessary to carry
    out the provisions of this Act."); *cf.* *Southwestern Cable Co.*,
    392 U.S. at 182 (White, J., concurring in the result) ("\[T\]he
    Commission is authorized to regulate wire communications to
    implement the *ends* of §§ 301 and 303 . . . ." (emphasis added)).

[^69]: We reject Comcast's argument that "Congress chose a specific tool
    for implementing" the policy set forth in section 230(b)(3) ---
    "civil immunity from damages for service providers and users that
    restrict access to certain content, in this case objectionable
    material" --- and that the alleged choice of that tool somehow
    restricts the Commission's authority to act here. Letter from
    Kathryn A. Zachem, Vice President of Regulatory Affairs, Comcast
    Corporation, to Marlene H. Dortch, Secretary, FCC, Attach. at 35
    (July 10, 2008) (Comcast *Ex Parte*) (citing 47 U.S.C. § 230(c)).
    Section 230(b) sets out the "policy of the United States" rather
    than the purpose of a particular section, *see, e.g.*, 47 U.S.C.
    § 628(a), suggesting that the policies of section 230(b) go beyond
    the procedures detailed in sections 230(c)--(d). Indeed, we have
    twice before specifically relied on this authority to strike state
    regulations that conflict with federal policy, *see* *Vonage Order*,
    19 FCC Rcd at 22426, para. 35 ("In the case of section 230, Congress
    articulated a very broad policy regarding the 'Internet and other
    interactive computer service' without limitation to content-based
    services. Through codifying its Internet policy in the Commission's
    organic statute, Congress charged the Commission with the ongoing
    responsibility to advance that policy consistent with our other
    statutory obligations"); *Petition for Declaratory Ruling that
    Pulver.com's Free World Dialup is Neither Telecommunications nor a
    Telecommunications Service*, WC Docket No. 03-45, Memorandum Order
    and Opinion, 19 FCC Rcd 3307, 3318--19, para. 18 (2004).
    Furthermore, Comcast's assertion that the statute, read as a whole,
    is designed to maximize the ability of "network operators to employ
    mechanisms to *restrict* access to . . . certain content," Comcast
    *Ex Parte* at 35, falls wide of the mark given the statute's
    emphasis on "maximiz\[ing\] user control" and "empower\[ing\]"
    parents. 47 U.S.C. § 230(b)(3)--(4). Indeed, Comcast's argument is
    particularly inapt in a case, such as this, in which the network
    operator impedes customers' access to content without even informing
    those customers of its practices.

[^70]: 47 U.S.C. § 151.

[^71]: 47 U.S.C. § 201.

[^72]: 47 U.S.C. § 157 nt.

[^73]: 47 U.S.C. § 256.

[^74]: 47 U.S.C. § 601.

[^75]: 47 U.S.C. § 151.

[^76]: Despite Comcast's argument that the Commission's authority must
    be ancillary to a "specified statutorily mandated responsibility,"
    Comcast *Ex Parte* at 28, and that section 1 imposes no such
    responsibility on the Commission, *id.* at 29--30, the Commission
    has previously relied on section 1 as the "something" to which our
    ancillary authority must be ancillary. Perhaps more to the point,
    the D.C. Circuit also disagrees with Comcast. That court has noted
    that "\[o\]ne of \[the Commission's\] *responsibilities* is to
    assure a nationwide system of wire communications services at
    reasonable prices," *Computer & Communications Industry Ass'n v.
    FCC*, 693 F.2d 198, 212--13 (D.C. Cir. 1982) (emphasis added), and
    that circuit and others have consequently upheld actions premised on
    our section 1 ancillary authority. *See* *id.*; *Rural Tel. Coal. v.
    FCC*, 838 F.2d 1307, 1315 (D.C. Cir. 1988) (holding that the
    Commission acted reasonably when it adopted a universal service
    funding mechanism pursuant to its authority under section 1); *GTE
    Serv. Corp. v. FCC*, 474 F.2d 724, 730--31 (2d Cir. 1973) (upholding
    Commission's section 1 authority, and noting that the "courts . . .
    have uniformly and consistently interpreted the Act to give the
    Commission broad and comprehensive rule-making authority in the new
    and dynamic field of electronic communication"); *Gen. Tel. Co. of
    the Southwest v. United States*, 449 F.2d 846, 854--55 (5th Cir.
    1971) (upholding regulation of cable ownership based on the
    Commission's "overriding responsibility" to carry out section 1's
    goals); *see also* *IP-Enabled Services, E911 Requirements for
    IP-Enabled Service Providers*, WC Docket Nos. 04-36, 05-196, First
    Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd
    10245, 10262--63, para. 29 (2005) (*VoIP E911 Order*) (finding that
    Title I satisfies both prongs of the standard for asserting
    ancillary jurisdiction, in this case to impose 911 obligations on
    providers of interconnected VoIP service).

    Contrary to Comcast's suggestion, the Supreme Court has never
    rejected section 1 as a basis for our ancillary jurisdiction --- at
    issue in *FCC v. Midwest Video Corp.*, 440 U.S. 689 (1979), was a
    regulation that the Commission had promulgated as ancillary to its
    broadcasting responsibilities (Title III), and the Court struck down
    that regulation because it effectively imposed a common carrier
    regime on cable systems, which Congress had "outright reject\[ed\]"
    in other statutory provisions, *id.* at 708--09. Comcast's reliance
    on other cases for the same point is similarly flawed. *See* *Motion
    Picture Ass'n of Am. v. FCC*, 309 F.3d 796, 804--05 (D.C. Cir. 2002)
    (holding that section 1 does not encompass regulation of program
    content); *Am. Library Ass'n*, 406 F.3d at 700 (holding that
    ancillary authority "does not encompass the regulation of consumer
    electronics products . . . when those devices are not engaged in the
    process of radio or wire transmission").

[^77]: *See* *infra* para. 48.

[^78]: *See* Testimony of David Reed, Adj. Professor, Massachusetts
    Institute of Technology, Broadband Network Management Practices En
    Banc Public Hearing, at 2 (Feb. 25, 2008) (Reed Testimony) (noting
    that the Internet's "congestion control techniques can only work
    well if they are standardized across the entire Internet.").

[^79]: 47 U.S.C. § 201(a).

[^80]: In the *Wireline Broadband Order*, the Commission permitted
    certain facilities-based carriers to choose whether to offer the
    transmission portion of wireline broadband Internet access service
    as non-common carriage or common carriage. 20 FCC Rcd at 14902,
    para. 94; *Petition of ACS of Anchorage, Inc. Pursuant to Section 10
    of the Communications Act of 1934, as Amended (47 USC Section
    160(c)), for Forbearance from Certain Dominant Carrier Regulation of
    Its Interstate Access Services, and for Forbearance from Title II
    Regulation of its Broadband Services, in the Anchorage, Alaska,
    Incumbent Local Exchange Carrier Study Area*, WC Docket No. 06-109,
    Memorandum Opinion and Order, 22 FCC Rcd 16304, 16339--40, paras.
    75, 80 (2007).

[^81]: Comcast notes that the Commission has not interpreted section 706
    to constitute an independent grant of authority. *See* Comcast *Ex
    Parte* at 31 (citing, *inter alia*, *Deployment of Wireline Services
    Offering Advanced Telecommunications Capability; Petition of Bell
    Atlantic Corporation for Relief from Barriers to Deployment of
    Advanced Telecommunications Services; Petition of U.S. West
    Communications, Inc. for Relief from Barriers to Deployment of
    Advanced Telecommunications Services; Petition of Ameritech
    Corporation to Remove Barriers to Investment in Advanced
    Telecommunications Technology; Petition of the Alliance for Public
    Technology Requesting Issuance of Notice of Inquiry and Notice of
    Proposed Rulemaking to Implement Section 706 of the 1996
    Telecommunications Act; Petition of the Association for Local
    Telecommunications Services (ALTS) for a Declaratory Ruling
    Establishing Conditions Necessary to Promote Deployment of Advanced
    Telecommunications Capability under Section 706 of the
    Telecommunications Act of 1996; Southwestern Bell Telephone Company,
    Pacific Bell, and Nevada Bell Petition for Relief from Regulation
    Pursuant to Section 706 of the Telecommunications Act of 1996 and 47
    U.S.C. § 160 for ADSL Infrastructure and Service*, CC Docket Nos.
    98-147, 98-11, 98-26, 98-32, 98-15, 98-78, 98-91, RM 9244,
    Memorandum Opinion and Order, and Notice of Proposed Rulemaking, 13
    FCC Rcd 24012, 24047--48, para. 77 (1998)). Although this is
    accurate, section 706 does impose a responsibility on the Commission
    to "encourage the deployment . . . of advanced telecommunications
    capability," 47 U.S.C. § 157 nt, and the Commission may use its
    ancillary authority to execute that responsibility and promote that
    objective. *See* *infra* para. 22.

[^82]: 47 U.S.C. § 157 nt.

[^83]: *Id.*

[^84]: *Id*.

[^85]: Letter from Marvin Ammori, General Counsel, Free Press, to
    Marlene H. Dortch, Secretary, FCC, Attach. 1 at 22 (June 12, 2008)
    (Free Press *Ex Parte*).

[^86]: 47 U.S.C. § 256.

[^87]: 47 U.S.C. § 256(a).

[^88]: 47 U.S.C. § 256(b)(1).

[^89]: 47 U.S.C. § 256(b)(2).

[^90]: *Wireline Broadband Order*, 20 FCC Rcd at 14919, para. 120.

[^91]: 47 U.S.C. § 256(a)(2).

[^92]: 47 U.S.C. §§ 257(a), (c).

[^93]: 47 U.S.C. § 257(b).

[^94]: Testimony of Lawrence Lessig, C. Wendell and Edith M. Carlsmith
    Professor of Law, Stanford Law School, Senate Committee on Commerce,
    Science and Transportation Hearing on "Network Neutrality," at 1
    (Feb. 7, 2006); *see also, e.g.*, *id*. at 4 ("\[I\]f you consider
    some of the most important innovations in this history of the
    Internet --- from the development of the World Wide Web by a Swiss
    researcher at CERN, to the first peer-to-peer instant messaging chat
    service, ICQ, developed by a young Israeli, to the first web based
    (or HTML-based) email, HoTMaiL, developed by an Indian immigrant ---
    these are all innovations by kids or non-Americans: outsiders to the
    network owners. This diversity of innovators is no accident. By
    minimizing the control by the network itself, the 'end-to-end'
    design maximizes the range of competitors who can innovate for the
    network. Rather than concentrating the right to innovate in a few
    network owners, the right to innovate is open to anyone, anywhere.
    That architecture, in turn, has created an astonishing range of
    important and economically valuable innovation. Here, as in many
    other contexts, competition has produced growth. And that
    competition was assured by the network's design."); Testimony of
    Vinton G. Cerf, Vice President and Chief Internet Evangelist,
    Google, Inc., Senate Committee on Commerce, Science, and
    Transportation Hearing on "Network Neutrality," at 2 (Feb. 7, 2006)
    ("The Internet's open, neutral architecture has proven to be an
    enormous engine for market innovation, economic growth, social
    discourse, and the free flow of ideas. The remarkable success of the
    Internet can be traced to a few simple network principles ---
    end-to-end design, layered architecture, and open standards ---
    which together give consumers choice and control over their online
    activities."); Testimony of Lawrence Lessig, C. Wendell and Edith M.
    Carlsmith Professor of Law, Stanford Law School, Senate Committee on
    Commerce, Science and Transportation Hearing on "The Future of the
    Internet," at 3 (Apr. 22, 2008) ("The original Internet achieved
    this architecture of competition unintentionally. The framers of the
    network's original design were not economists. They were not focused
    on building an engine of economic growth. Yet that was the
    consequence of a technical design intended to facilitate development
    flexibility. A network designed to enable anyone to develop new
    applications to run was also a network designed to maximize
    competition among applications and content.").

[^95]: Reed Testimony at 1--3.

[^96]: *See, e.g.*, Vuze Petition at 11; Vuze Reply Comments at 7--8;
    EFF Reply Comments at 5--6.

[^97]: 47 U.S.C. § 521(4).

[^98]: *See* Free Press *Ex Parte* at 31.

[^99]: *See* 47 U.S.C. § 522(6) (defining "cable service" as "(A) the
    one-way transmission to subscribers of (i) video programming, or
    (ii) other programming service, and (B) subscriber interaction, if
    any, which is required for the selection of use of such video
    programming or other programming service").

[^100]: Cable Television Consumer Protection and Competition Act of
    1992, Pub. L. 102-385, § 2(a)(6), 106 Stat. 1460, 1461 (Oct. 5,
    1992), *codified at* 47 U.S.C. § 521 nt (emphasis added).

[^101]: *See also* *Inquiry Concerning High-Speed Access to the Internet
    over Cable and Other Facilities; Internet Over Cable Declaratory
    Ruling; Appropriate Regulatory Treatment for Broadband Access to the
    Internet Over Cable Facilities*, GN Docket No. 00-185, CS Docket No.
    02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC
    Rcd 4798, 4855, para. 115 (2002) (*Cable Modem Declaratory Ruling*)
    (citing, *inter alia*, 47 U.S.C. § 521 as part of the legal basis
    for determination that cable modem service was properly classified
    as an "interstate information service," rather than a "cable
    service"); *id*. at 4860, para. 133 (same).

[^102]: 406 U.S. 649 (1972).

[^103]: *Id.* at 669 n.28.

[^104]: *Id.*

[^105]: 693 F.2d 198 (D.C. Cir. 1982).

[^106]: *Id.* at 213; *see also* *Rural Tel. Coal.*, 838 F.2d at 1315.

[^107]: Hands Off the Internet Comments at 7--14.

[^108]: *Id.* at 3. Hands Off the Internet also refers to the "FCC's
    clear ability to regulate these issues within its existing authority
    under Title I of the Communications Act." *Id.*

[^109]: Comcast Motion for Judgment at 10; Defendants' Reply Memorandum
    in Support of Motion for Judgment on the Pleadings at 3, *Hart v.
    Comcast of Alameda*, No. C-07-06350-PJH (N.D. Cal. May 28, 2008)
    (Comcast Reply Motion) ("\[The\] claims that Comcast's network
    management practices are 'unfair' or that they are 'unlawful'
    because they violate . . . the FCC's Internet Policy Statement . . .
    are squarely in the heartland of the FCC's primary jurisdiction.").

[^110]: Order Granting Request to Stay at 2--3, *Hart v. Comcast of
    Alameda*, No. C-07-06350-PJH (N.D. Cal. June 25, 2008).

[^111]: *See, e.g.*, *Zedner v. United States*, 547 U.S. 489, 504 (2006)
    ("\[W\]here a party assumes a certain position in a legal
    proceeding, and succeeds in maintaining that position, he may not
    thereafter, simply because his interests have changed, assume a
    contrary position." (quoting *Davis v. Wakelee*, 156 U.S. 680, 689
    (1895)).

[^112]: 47 U.S.C. § 230(b)(2), *quoted in* Comcast Comments at 53 n.153,
    54; *see also* Time Warner Comments at 26; Comcast Reply Comments at
    42--43; Letter from David L. Cohen, Executive Vice President,
    Comcast, to Kevin J. Martin, Chairman, FCC, at 2 (Mar. 7, 2008)
    (Comcast Letter on Authority), *attached to* Letter from Kathryn A.
    Zachem, Vice President of Regulatory Affairs, Comcast, to Marlene H.
    Dortch, Secretary, FCC (Mar. 11, 2008).

[^113]: Comcast Letter on Authority at 2; *see also* Katherine A.
    Zachem, Vice President of Federal Regulatory Affairs, Comcast
    Corporation, to Marlene H. Dortch, Secretary, FCC, Attach. at 17
    (Feb. 26, 2008) (Comcast Hearing Remarks) (terming this provision
    the government's "deregulatory policy for the Internet").

[^114]: *See* *Amendment of Section 64.702 of the Commission's Rules and
    Regulations*, Docket No. 20828, Final Decision, 77 FCC 2d 384
    (1980); *Amendment of Section 64.702 of the Commission's Rules and
    Regulations*, Docket No. 20828, Memorandum Opinion and Order, 84 FCC
    2d 50 (1980); *Amendment of Section 64.702 of the Commission's Rules
    and Regulations*, Docket No. 20828, Memorandum Opinion and Order on
    Further Reconsideration, 88 FCC 2d 512 (1981) (collectively,
    *Computer II* rules); *see generally Computer & Commc'ns Indus.
    Ass'n*, 693 F.2d 198 (upholding *Computer II* rules); *Wireline
    Broadband Order*, 20 FCC Rcd at 14866--73, paras. 21--31.

[^115]: 47 U.S.C. § 230(b)(2) (emphasis added).

[^116]: 47 U.S.C. § 230(f)(2).

[^117]: 47 U.S.C. § 230(d).

[^118]: *Telephone Number Requirements for IP-Enabled Services
    Providers; Local Number Portability Porting Interval and Validation
    Requirements; IP-Enabled Services; Telephone Number Portability;
    CTIA Petitions for Declaratory Ruling on Wireline-Wireless Porting
    Issues; Numbering Resource Optimization*, WC Docket Nos. 07-243,
    07-244, 04-36, CC Docket Nos. 95-116, 99-200, Report and Order,
    Declaratory Ruling, Order on Remand, and Notice of Proposed
    Rulemaking, 22 FCC Rcd 19531 (2007), *petition for review pending*.

[^119]: *Id.* at 19548 n.101.

[^120]: *Implementation of the Telecommunications Act of 1996:
    Telecommunications Carriers' Use of Customer Proprietary Network
    Information and Other Customer Information; IP-Enabled Services*, CC
    Docket No. 96-115, WC Docket No. 04-36, Report and Order and Further
    Notice of Proposed Rulemaking, 22 FCC Rcd 6927 (2007).

[^121]: *Id.* at 6957 n.188.

[^122]: *VoIP E911 Order*, 20 FCC Rcd 10245.

[^123]: *Id.* at 10262, para. 29 n.95; *see also Universal Service
    Contribution Methodology et al.*, WC Docket Nos. 06-122, 04-36, CC
    Docket Nos. 96-45, 98-171, 90-571, 92-237, 99-200, 95-116, 98-170,
    NSD File No. L-00-72, Report and Order and Notice of Proposed
    Rulemaking, 21 FCC Rcd 7518, 7543 n.166 (2006) (rejecting a similar
    idea in imposing universal service contribution obligations on
    providers of interconnected VoIP), *pet. for review granted in part
    and order vacated in part on other grounds sub nom. Vonage Holdings
    Corp. v. FCC*, 489 F.3d 1232 (D.C. Cir. 2007).

[^124]: *Applications for Consent to the Assignment and/or Transfer of
    Control of Licenses, Adelphia Communications Corporation, (and
    Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner
    Cable Inc. (Subsidiaries), Assignees, Adelphia Communications
    Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors
    and Transferors, to Comcast Corporation (Subsidiaries), Assignees
    and Transferees, Comcast Corporation, Transferor, to Time Warner
    Inc., Transferee, Time Warner Inc., Transferor, to Comcast
    Corporation, Transferee*, MB Docket No. 05-192, Memorandum Opinion
    and Order, 21 FCC Rcd 8203, 8298, para. 220 (2006) (*Adelphia/Time
    Warner/Comcast Order*). In that order, the Commission approved the
    acquisition of Adelphia cable systems by Comcast and Time Warner.

[^125]: *Id.* at 8298, para. 220.

[^126]: *Id.* at 8299, para. 223.

[^127]: *Cf.* 47 C.F.R. § 1.110.

[^128]: *See* Letter from Harold Feld, Media Access Project, to the
    Commission, at 9--10 (July 22, 2008) (Media Access Project serves as
    counsel for Free Press in this proceeding and served as counsel for
    Free Press in the Adelphia proceeding).

[^129]: *See* *SEC v. Chenery Corp.* (*Chenery II*), 332 U.S. 194, 203
    (1947); *Qwest Services Corp. v. FCC*, 509 F.3d 531, 536 (D.C. Cir.
    2007) ("Most norms that emerge from a rulemaking are equally capable
    of emerging (legitimately) from an adjudication, *NLRB v. Bell
    Aerospace Co.*, 416 U.S. 267, 294--95 (1974), and accordingly
    agencies have 'very broad discretion whether to proceed by way of
    adjudication or rulemaking,' *Time Warner Entertainment Co. v. FCC*,
    240 F.3d 1126, 1141 (D.C. Cir. 2001)."); *Am. Airlines, Inc. v.
    Dep't of Transp.*, 202 F.3d 788, 797 (5th Cir. 2000) ("Agencies have
    discretion to choose between adjudication and rulemaking as a means
    of setting policy."); *City of Chicago v. FCC*, 199 F.3d 424, 429
    (7th Cir. 1999) ("An agency can, of course, promulgate its policy
    through individual adjudicative proceedings rather than
    rulemaking."); *Am. Gas Ass'n v. FERC*, 912 F.2d 1496, 1519 (D. C.
    Cir. 1990) ("\[A\]gency discretion is at its peak in deciding such
    matters as whether to address an issue by rulemaking or
    adjudication."); *see also* *Vermont Yankee Nuclear Power Corp. v.
    NRDC*, 435 U.S. 519, 524 (1978) ("\[F\]ormulation of procedures was
    basically to be left within the discretion of the agencies to which
    Congress had confided the responsibility for substantive
    judgments.").

[^130]: 47 U.S.C. § 154(j).

[^131]: *Chenery II*, 332 U.S. at 202--03 (citing *Columbia Broadcasting
    Sys., Inc. v. United States*, 316 U.S. 407, 421 (1942)).

[^132]: *See* Policy Statement on Comparative Broadcast Hearings, 1 FCC
    2d 393 (1965).

[^133]: *Applications of Lorain Community Broadcasting Co., Lorain,
    Ohio; Allied Broadcasting, Inc., Lorain, Ohio; Midwest Broadcasting
    Co., Lorain, Ohio for Construction Permits*, Docket No. 16876 File
    No. BP-16940; Docket No. 16877 File No. BP-17297; Docket No. 16878
    File No. BP-17302, Order, 18 FCC 2d 686 (1969).

[^134]: *Allied Broadcasting, Inc., v. FCC*, 435 F.2d 68 (D.C. Cir.
    1970).

[^135]: *Use of the Carterfone Device in Message Toll Telephone Service;
    Thomas F. Carter and Carter Electronics Corp., Dallas, Tex.
    (Complainants), v. American Telephone and Telegraph Co., Associated
    Bell System Companies, Southwestern Bell Telephone Co., and General
    Telephone Co. of the Southwest (Defendants)*, Docket Nos. 16942,
    17073, Decision, 13 FCC 2d 420 (1968) (*Carterfone Order*).

[^136]: *See* *Petition of Action for Children's Television (ACT) for
    Rulemaking Looking Toward the Elimination of Sponsorship and
    Commercial Content in Children's Programming and the Establishment
    of a Weekly 14-Hour Quota of Children's Television Programs*, Docket
    No. 19142, Children's Television Report and Policy Statement, 50 FCC
    2d 1 (1974), *petition for review denied in* *Action for Children's
    Television v. FCC*, 564 F.2d 458 (D.C. Cir. 1977).

[^137]: *Chenery II*, 332 U.S. at 202; *see also* Comcast Comments at
    44.

[^138]: It is our intent to adjudicate future complaints in this area
    with dispatch.

[^139]: *Chenery II*, 332 U.S. at 202.

[^140]: *See* Comcast Comments at 6 & nn.9--10.

[^141]: *See* Industry Analysis and Technology Division, Wireline
    Competition Bureau, High-Speed Services for Internet Access: Status
    as of June 2007, Table 2 (Mar. 2008), available at
    http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-280906A1.pdf
    (last visited July 31, 2008).

[^142]: *Chenery II*, 332 U.S. at 203.

[^143]: For similar reasons, we also expect to refine further our
    adjudicative standards in future cases.

[^144]: *See* *supra* paras. 24--26.

[^145]: 47 U.S.C. § 230(b)(2).

[^146]: *Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4802, para. 5.

[^147]: To the extent that Comcast still sees a conflict between our
    "numerous, consistent, and successful precedents regarding the
    reasons why 'broadband services should exist in a minimal regulatory
    environment'" and any "exercise of Title I authority over network
    management practices," Comcast Comments at 44, our reasoned
    explanation is this: Our adjudicatory approach allows us to minimize
    government intervention in the broadband market without wholly
    forsaking our responsibility to enforce the other federal policies
    of section 230(b) of the Act.

[^148]: Comcast *Ex Parte* at 13.

[^149]: *NLRB v. Bell Aerospace Co. Div. of Textron Inc.*, 416 U.S. 267,
    294 (1974) ("\[An agency's\] judgment that adjudication best serves
    \[its\] purpose is entitled to great weight.").

[^150]: Comcast *Ex Parte* at 13 (quoting *Pfaff v. U.S. Dep't of Hous.
    & Urban Dev.*, 88 F.3d 739, 748 (9th Cir. 1996) (emphasis added)).

[^151]: *Pfaff*, 88 F.3d at 748.

[^152]: *Wireline Broadband Order*, 20 FCC Rcd at 14907, para. 96.

[^153]: Because Comcast has long had actual notice of the Commission's
    *Internet Policy Statement*, its further complaint that the
    statement was "not published in the Federal Register," Comcast *Ex
    Parte* at 5, is irrelevant. *See* 5 U.S.C. § 552(a)(1).

[^154]: *See* *supra* para. 27.

[^155]: *Adelphia/Time Warner/Comcast Order*, 21 FCC Rcd at 8298, para.
    220.

[^156]: *Id*. at 8299, para. 223.

[^157]: The complaint of the dissent that we should not adjudicate here
    because our action may have a retroactive effect is meritless.
    First, "\[r\]etroactivity is the norm in agency adjudications no
    less than in judicial adjudications." *AT&T Inc. v. FCC*, 454 F.3d
    329, 332 (D.C. Cir. 2006). Second, in criticizing our citation to
    *Pfaff*, which indeed was a case relied upon by Comcast, the dissent
    confuses the question of whether an agency may proceed by
    adjudication or rulemaking with the distinct question of whether an
    adjudication may have retroactive effect. And third, any retroactive
    effect here would not come close to working a "manifest injustice."
    *Clark-Cowlitz Joint Operating Agency v. FERC*, 826 F.2d 1074, 1081
    (D.C. Cir. 1987) (en banc) (setting forth manifest injustice
    standard). Although our remedy may have some retroactive effect, its
    primary purpose is prospective: To ensure that the Commission knows
    exactly what Comcast is doing and will be doing as it transitions
    away from its current network management practices --- something
    Comcast has already promised to do --- and to monitor Comcast's
    compliance with that commitment. As discussed below, we do not
    impose any fine or damages on Comcast. Moreover, as discussed in the
    text, Comcast is hardly in a position to claim that it "relied on
    \[a\] former rule" or that our action "represents an abrupt
    departure from well established practice," *Retail, Wholesale &
    Dep't Store Union, AFL-CIO v. NLRB*, 466 F.2d 380, 390 (D.C. Cir.
    1972), in light of the Commission's warnings, among other places, in
    the *Adelphia/Time Warner/Comcast Order*. Finally, as discussed
    above, our decision today advances weighty statutory interests.
    *See* *Retail, Wholesale & Dep't Store Union*, 466 F.2d at 390.

[^158]: *Pfaff*, 88 F.3d at 748.

[^159]: *See* *supra* para. 28--32; *infra* para. 41--53. Thus Comcast
    is wrong to suggest that we are "'attempt\[ing\] to propose
    legislative policy by an adjudicative order.'" Comcast *Ex Parte* at
    16 n. 110 (quoting *First Bancorporation v. Board of Governors of
    the Federal Reserve System*, 728 F.2d 434, 438 (10th Cir. 1984)). In
    *First Bancorporation*, the court struck the agency policy only
    because "the \[agency's\] order contain\[ed\] no adjudicative facts
    having any particularized relevance to the petitioner." 728 F.2d at
    438.

[^160]: *See* *supra* para. 11.

[^161]: The Commission has received over 6,500 comments since the
    Wireline Competition Bureau sought comment on January 14, 2008 in
    Docket No. 07-52. *Cf.* *New York State Comm'n*, 749 F.2d at 815
    ("\[T\]o remand solely because the Commission labeled the action a
    declaratory ruling would be to engage in an empty formality: the
    Commission gave adequate notice and received comments from over 25
    interested parties. The arguments raised in the proceedings
    below . . . provided the Commission with both sufficient quantity
    and diversity of information upon which to decide the questions
    presented.").

[^162]: *Cf.* *NLRB v.* *Wyman-Gordon Co.*, 394 U.S. 759, 766 (1969)
    (holding that regulated party was bound to furnish an employment
    list "\[b\]ecause the \[agency\] in an adjudicatory proceeding
    directed the respondent itself to" do so, even though the
    requirement had not been properly made into a formal rule).

[^163]: Free Press July 20, 2008, *Ex Parte* at 2.

[^164]: Comcast Comments at 44--45.

[^165]: *Chenery II*, 332 U.S. at 201.

[^166]: Comcast Comments at 49--51.

[^167]: *See* *CBS*, *Inc. v. FCC*, 629 F.2d 1, 26--27 (1980) (reasoning
    that the Commission had, in the context of an adjudication,
    reasonably construed its ancillary authority to encompass television
    networks), *aff'd*, 453 U.S. 367 (1981); *Complaint of
    Carter-Mondale Presidential Committee, Inc. against The ABC, CBS and
    NBC Television Networks*, Memorandum Opinion and Order, 74 FCC 2d
    631, para. 25 n.9 (1979) ("Our power to adjudicate complaints
    involving requests for access to the networks is surely 'reasonably
    ancillary to the effective performance of the Commission's various
    responsibilities.'" (quoting *Southwestern Cable Co*., 392 U.S. at
    178)); *see also* *New York State Comm'n on Cable Television v.
    FCC*, 749 F.2d 804, 815 (D.C. Cir. 1984) (upholding adjudicatory
    decision that preempted certain state and local satellite television
    regulations under Commission's ancillary authority);
    *Negrete-Rodriguez v. Mukasey*, 518 F.3d 497, 504 (7th Cir. 2008)
    ("An agency is not precluded from announcing new principles in an
    adjudicative proceeding rather than through notice-and-comment
    rule-making.").

[^168]: Comcast Comments at 44.

[^169]: Furthermore, in the *Broadband Industry Practices Notice*, the
    Commission said that "\[t\]he Commission, under Title I of the
    Communications Act, has the ability to adopt and enforce the net
    neutrality principles it announced in the Internet Policy
    Statement." 22 FCC Rcd at 7896, para. 4.

[^170]: 20 FCC Rcd at 14915, para. 111.

[^171]: *See* *Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4842,
    para. 79 ("*We seek comment on any explicit statutory provisions,
    including expressions of congressional goals that would be furthered
    by the Commission's exercise of ancillary jurisdiction over cable
    modem service.* One possibility is the Commission's basic purpose
    'to make available, so far as possible, to all the people of the
    United States . . . a rapid, efficient, Nation-wide, and world-wide
    wire and radio communication service with adequate facilities at
    reasonable charges.' *Other statutory grounds might include the
    goals stated in section 230(b) of the Act*, the Title VI goal of
    assuring 'that cable communications provide and are encouraged to
    provide the widest possible diversity of information sources and
    services to the public,' and section 706 of the 1996 Act." (emphases
    added)).

[^172]: *Id*. at 4846, para. 92 ("Would a finding that subscriber access
    to Internet content or services may be blocked or impaired, as
    compared to other content or services, particularly that provided by
    the cable operator or its affiliate, support regulatory
    intervention?").

[^173]: *Madison River Communications, LLC and Affiliated Companies*,
    File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (EB 2005) (*Madison
    River Order*).

[^174]: *See, e*.*g*., *Internet Policy Statement*, 20 FCC Rcd at 14988,
    para. 4 ("\[C\]onsumers are entitled to run applications and use
    services of their choice . . . ."); *id*. ("\[C\]onsumers are
    entitled to connect their choice of legal devices that do not harm
    the network . . . ."); *id*. para. 2 (Although information services
    providers "are not subject to mandatory common-carrier regulation
    under Title II, . . . the Commission . . . 'has jurisdiction to
    impose additional regulatory obligations under its Title I ancillary
    jurisdiction to regulate interstate and foreign communications.'"
    (quoting *Brand X*, 545 U.S. at 976)); *id*. para. 2 n.12 (citing
    2005 Enforcement Bureau consent decree in which the VoIP provider
    agreed "not \[to\] block ports used for VoIP applications or
    otherwise prevent customers from using VoIP applications," *Madison
    River Order*, 20 FCC Rcd at 4297, para. 5).

[^175]: As discussed above, *see* *supra* para. 27, we find that Comcast
    has waived its challenge to our choice of an adjudication rather
    than a rulemaking to resolve the present dispute. We informed
    Comcast of our chosen approach in the *Adelphia/Time Warner/Comcast
    Order*, and Comcast forfeited its opportunity to challenge that
    approach when it consummated the transaction approved therein.

[^176]: *See* *Carterfone Order*, 13 FCC 2d 420; *Proposals for New or
    Revised Classes of Interstate and Foreign Message Tolls Telephone
    Service (MTS) and Wide Area Telephone Service (WATS)*, Docket No.
    19528, First Report and Order, 56 FCC 2d 593 (1975) (codifying
    *Carterfone* principles as Part 68 of our rules).

[^177]: We do not credit Comcast's argument that Free Press has shifted
    legal theories and should be "bound by its original allegations."
    Comcast *Ex Parte* at 9--10. Rather, we agree with Free Press that
    its Complaint is reasonably interpreted to rest on the statutory
    provisions interpreted in and cited by the *Internet Policy
    Statement*. *See* Free Press *Ex Parte*, Memorandum 2 at 3. In any
    event, Comcast has had a more than adequate opportunity to respond
    to the arguments set forth by Free Press in its June 12, 2008
    memoranda, as evidenced by the company's lengthy filing of July 10,
    2008, *see* Comcast *Ex Parte*, and the Commission furthermore is
    not bound by allegations contained within the four corners of the
    Free Press Complaint. *See* 47 U.S.C. § 403. We also reject
    Comcast's contention that we cannot act because Free Press styled
    its original submission to us a "formal complaint" but that
    submission does not comply with the requirements for such a filing.
    Comcast Response Letter at 12--13. When information comes to
    Commission's attention suggesting that there has been a violation of
    the agency's rules or policies, the Commission can take action,
    regardless of the title the submitting party puts on its submission.
    *See, e.g.*, *Complaints Against Various Television Licensees
    Concerning Their Feb. 25, 2003 Broadcast of the Program "NYPD
    Blue"*, 23 FCC Rcd 3147, 3156, para. 12 & n.68 (2008) (complaint
    need not be "letter perfect" to prompt Commission inquiry into rule
    violation), *petition for review pending* (2d Cir. 08-0841).

[^178]: Although we require Comcast to "disclose to the Commission the
    precise contours of the network management practices at issue here"
    so that we may monitor Comcast's transition away from its current
    practices, *infra* para. 54, the evidence in the record and
    Comcast's own admissions provide ample support for our adjudication
    of the dispute at issue and our findings here.

[^179]: Reed Testimony at 3; EFF Reply Comments at 10--12, Attach. at 1
    (discussing the events that exposed Comcast's practice).

[^180]: *See* Comcast Technical *Ex Parte* at 5.

[^181]: *See* Letter from Robert M. Topolski to David Cohen, Comcast
    Corporation, at 5--6 (Apr. 3, 2008) (Topolski Letter); EFF Reply
    Comments, Attach. at 5 ("Comcast is essentially behaving like a
    telephone operator that interrupts a phone conversation,
    impersonating the voice of each party to tell the other that 'this
    call is over, I'm hanging up.'").

[^182]: Letter from Marvin Ammori, General Counsel, Free Press, to
    Marlene H. Dortch, Secretary, FCC, at 9 (July 17, 2008) (Free Press
    Technical *Ex Parte*).

[^183]: Peha Comments at 5 (Apr. 7, 2008); Peha Comments at 4 (Apr. 4,
    2008) (characterizing Comcast's practice as a variant on the "man in
    the middle" attack, a maneuver computer hackers use to intercept and
    control communications over a network).

[^184]: Letter from Kathryn A. Zachem, Vice President of Regulatory
    Affairs, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC,
    at 2 (July 22, 2008) (Comcast Second Technical *Ex Parte*).

[^185]: *See* Letter from Kathryn A. Zachem, Vice President of
    Regulatory Affairs, Comcast Corporation, to Marlene H. Dortch,
    Secretary, FCC, at 3 (July 10, 2008) (Comcast Technical *Ex Parte*).

[^186]: Letter from Henry Goldberg, Counsel, Vuze, Inc., to Marlene H.
    Dortch, Secretary, FCC, Attached Report at 2--3 (Apr. 22, 2008).

[^187]: *See* Topolski Comments at 4 (Feb. 25, 2008); *see also* Max
    Planck Institute, "Glasnost: Results from Tests for BitTorrent
    Traffic Blocking," (Max Planck Institute Report) *available at*
    http://broadband.mpi-sws.mpg.de/transparency/results/ (last visited
    July 31, 2008) (finding that Comcast terminated between twenty and
    eighty percent of peer-to-peer uploading TCP connections, depending
    on the time of day); Free Press Technical *Ex Parte* at 10.

[^188]: *See* Comcast Technical *Ex Parte* at 3.

[^189]: Free Press Complaint, Declaration of Adam Lynn (attached).

[^190]: Free Press Complaint, Declaration of Jeffrey Pearlman
    (attached).

[^191]: Gerisch Comments at 1--2; Fox Comments at 1.

[^192]: Topolski Comments at 3 (Feb. 25, 2008); *see also* Topolski
    Letter at 4 ("The OpenOffice (Open Source) suite I attempted to
    upload to the EFF was blocked. The Holy Bible (Public Domain) was
    blocked."); Letter from Robert M. Topolski to Marlene H. Dortch,
    Secretary, FCC, at 3 (July 23, 2008) (Topolski *Ex Parte*) ("I have
    been unable to upload *anything* on BitTorrent on my connection in
    any test run since February.").

[^193]: Peha Comments at 3; *see also* Ou Comments at 2 (Apr. 28, 2008)
    (noting that "a TCP reset can in some cases trigger a complete
    temporary blockage"); Vuze Reply Comments at 10 (contending that
    "even if Comcast does not completely block traffic associated with
    Vuze, it is not necessary actually to block Vuze's service to
    undermine its business. . . . To a company like Vuze whose
    tech-savvy users have little patience for slow performance or
    unreliable service, slowing of its traffic or otherwise making its
    service unreliable, if successful, can be as . . . damaging as
    outright blocking.").

[^194]: 47 U.S.C. § 230(b)(1).

[^195]: *Internet Policy Statement*, 20 FCC Rcd at 14988, para. 4.

[^196]: *See* Tim Wu, *Network Neutrality, Broadcast Discrimination*, 2
    J. Telecomm. & High Tech. L. 141, 151 (2003) (discussing the social
    and economic losses from "unjustified discrimination").

[^197]: *Id.*

[^198]: *See* Open Internet Coalition Comments at 3 (stating that
    Comcast's actions "negatively affects the ability of all Internet
    users to access content using applications that use BitTorrent and
    other P2P protocols stifled by Comcast"); Topolski Letter at 8
    ("Comcast users often find themselves with that unique piece of data
    necessary to complete an upload. In that case, the Comcast user must
    successfully upload his unique data before other users give up on
    ever completing the transfer.").

[^199]: 47 U.S.C. § 230(b)(3); *see also* Testimony of Vinton G. Cerf,
    Vice President and Chief Internet Evangelist, Google, Inc., Senate
    Committee on Commerce, Science, and Transportation Hearing on
    "Network Neutrality," at 2 (Feb. 7, 2006) ("The Internet was
    designed to maximize user choice and innovation, which has led
    directly to an explosion in consumer benefits.").

[^200]: *Internet Policy Statement*, 20 FCC Rcd at 14988, para. 4.

[^201]: As described in more detail above, Comcast's discriminatory
    network management practices also run afoul of federal policy
    because they reduce the rapidity and efficiency of the public
    Internet, *see* *supra* para. 16, *cf.* 47 U.S.C. § 151, impede
    competition, *see* *supra* para. 16, *cf.* 47 U.S.C. § 151, inhibit
    the deployment of advanced technologies, *see* *supra* para. 18,
    *cf.* 47 U.S.C. § 157 nt, improperly shift traffic (and hence costs)
    to providers who offer DSL as a common carrier service, *see*
    *supra* para. 17, *cf.* 47 U.S.C. § 201, prevent the seamless and
    transparent flow of information across public telecommunications
    networks, *see* *supra* para. 19, *cf.* 47 U.S.C. § 256, erect
    barriers to entry for entrepreneurs, *see* *supra* para. 20, *cf.*
    47 U.S.C. § 257, and degrade an individual's ability to access a
    diverse array of content over the Internet, *see* *supra* paras.
    20--21, *cf.* 47 U.S.C. §§ 257, 521(4).

[^202]: We only rule on Comcast's particular conduct at issue. We
    specifically do not decide today whether other actual or potential
    conduct, such as giving real-time communications packets (*e.g.*,
    VoIP) higher priority than other packets or giving higher priority
    to packets of a particular, unaffiliated content provider pursuant
    to an arms-length agreement, would violate federal policy.

[^203]: We are not persuaded by the First Amendment concerns cited by
    Time Warner Cable. *See, e.g.*, Time Warner Cable Comments at
    26--27; Time Warner Cable Reply Comments at 15--16. Our purpose in
    this *Order* is to promote the dynamic benefits of an open and
    accessible Internet. As described in more detail elsewhere, we find
    that Comcast may not, consistent with this purpose, interfere with
    its customers' use of peer-to-peer networking applications in the
    manner at issue here. This prohibition does not prevent Comcast from
    communicating with its customers or others. Nor do we find Time
    Warner Cable's analogy of a broadband provider to a newspaper to be
    apt. *See, e.g.*, Time Warner Cable Comments at 27 (arguing that
    broadband providers have the same First Amendment rights as
    newspapers and that prohibiting Comcast from interfering with its
    customers' connections, the Commission would be compelling Comcast
    to speak). For one, the Commission is not dictating the content of
    any speech. Nor are we persuaded that Comcast's customers would
    attribute the content delivered by peer-to-peer applications to
    Comcast, rather than attributing them to the other parties with whom
    they have chosen to interact through those applications. Under these
    circumstances, we find that our actions do not raise First Amendment
    concerns. In addition, we note that Verizon Wireless raised certain
    similar concerns with respect to our rules regarding the 700 MHz
    auction, and we reject Time Warner Cable's arguments for many of the
    same reasons cited there. *See generally* *Service Rules for the
    698--746, 747--762, and 777--792 MHz Bands; Revision of the
    Commission's Rules to Ensure Compatibility with Enhanced 911
    Emergency Calling Systems; Section 68.4(a) of the Commission's Rules
    Governing Hearing Aid-Compatible Telephones; Biennial Regulatory
    Review --- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline
    and Harmonize Various Rules Affecting Wireless Radio Services;
    Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses
    and Revisions to Part 27 of the Commission's Rules; Implementing a
    Nationwide, Broadband, Interoperable Public Safety Network in the
    700 MHz Band; Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Communications Requirements Through the Year 2010; Declaratory
    Ruling on Reporting Requirement under Commission's Part 1
    Anti-Collusion Rule*, WT Docket Nos. 07-166, 06-169, 06-150, 01-309,
    03-264, 96-86, CC Docket No. 94-102, PS Docket No. 06-229, Second
    Report and Order, 22 FCC Rcd 15289, 15369--70, paras. 217--20 (2007)
    (*700 MHz Second Report and Order*). Indeed, as we similarly noted
    in the 700 MHz proceeding, we believe that taking action to preserve
    the open character of the Internet "promotes rather than restricts
    expressive freedom" because it provides consumers with greater
    choice in the applications they may use to communicate and the
    content they may access. *See* *id.* at 15369, para. 217. We
    therefore believe that our action today furthers First Amendment
    values; as the Supreme Court has stated, the First Amendment "rests
    on the assumption that the widest possible dissemination of
    information from diverse and antagonistic sources is essential to
    the welfare of the public." *Associated Press v. United States*, 326
    U.S. 1, 20 (1945).

[^204]: Peha Comments at 3; *see also* *id.* at 2--3 ("It is factually
    incorrect to say that the process described \[by Comcast\] merely
    delays P2P traffic."); Open Internet Coalition Comments at 7
    (arguing that when "traffic is degraded sufficiently . . . it
    amounts to blocking --- when files that should take minutes to
    transfer take several hours, the effect is the same as blocking");
    EFF Reply Comments, Attach. at 3--5 (concluding that, with couple of
    exceptions, Comcast's practice makes certain peer-to-peer
    applications "simply not work").

[^205]: *See, e.g.*, Comcast Comments at 33 ("Comcast's network
    management practices do not, have not, and will not prevent its
    subscribers from accessing the Internet content of their
    choice . . . .").

[^206]: *See* *supra* para. 42.

[^207]: *See* Free Press Comments at 36--38 (addressing the semantic
    debate of whether Comcast's practices are "blocking" or "delaying").

[^208]: Free Press requests that we declare that a broadband Internet
    service access provider's selective interference with a particular
    protocol or application be a per se unreasonable network management
    practice. *See* Free Press Petition at 28. Because we prefer a more
    nuanced approach to the issue at this time, we decline Free Press's
    request.

[^209]: *See* Internet Engineering Task Force, *available at*
    http://www.ietf.org/ (last visited July 31, 2008).

[^210]: *See, e.g.*, RFC 793/Internet Standard STD 7, *available at*
    http://tools.ietf.org/html/rfc793 (last visited July 31, 2008)
    (defining the Transmission Control Protocol, or TCP); *see also*
    Topolski *Ex Parte* at 3 (noting the common set of Internet
    standards, RFC 5000/STD 1).

[^211]: Testimony of Lawrence Lessig, C. Wendell and Edith M. Carlsmith
    Professor of Law, Stanford Law School, Senate Committee on Commerce,
    Science and Transportation Hearing on "The Future of the Internet,"
    at 2 (Apr. 22, 2008).

[^212]: *See* Reed Testimony at 3 (citing Sally Floyd, *Inappropriate
    TCP Resets Considered Harmful*, Internet RFC 3360 (Aug. 2002),
    *available at* http://www.ietf.org/rfc/rfc3360.txt?number=3360);
    Free Press Technical *Ex Parte* at 2 (arguing that Comcast's
    practices deviate from accepted standards); Center for Democracy and
    Technology Comments at 10; Topolski *Ex Parte* at 3 (arguing that
    Comcast's practices transgress Internet standards); J.H. Saltzer,
    D.P. Reed, & D.D. Clark, *End-to-End Arguments in System Design*, 2
    ACM Transactions on Computer Systems 277 (1984); Lawrence Lessig &
    Mark A. Lemley, *The End of End-to-End: Preserving the Architecture
    of the Internet in the Broadband Era*, 48 UCLA L. Rev. 925, 931
    (2001) (arguing that, according to the Internet's design,
    "communications protocols themselves (the 'pipes' through which
    information flows) should be as simple and as general as possible"),
    *cited in* EFF Reply Comments, Attach. at 6. *See generally* Wu,
    *supra* note Error: Reference source not found.

[^213]: Reed Testimony at 3.

[^214]: Peha Comments at 5.

[^215]: *Id.* at 4.

[^216]: *Id.*

[^217]: Reed Testimony at 2. We agree that Comcast's use of Deep Packet
    Inspection here was unacceptable. However, we make no judgment on
    the use of this method for different purposes, such as
    distinguishing legal from illegal content. *See* *infra* para. 50.

[^218]: Webcast of Feb. 25, 2008 Broadband Network Management Practices
    En Banc Public Hearing, Harvard Law School, Cambridge, MA, at
    3:31:36--51, *available at*
    http://www.fcc.gov/realaudio/mt022508v.ram (last visited July 31,
    2008).

[^219]: Testimony of Tim Wu, Professor of Law, Columbia University,
    First Public En Banc Hearing on Broadband Network Management
    Practices, at 2 (Feb. 25, 2008).

[^220]: Testimony of Barbara van Schewick, Assistant Professor of Law,
    Stanford Law School, Second Public En Banc Hearing on Broadband
    Network Management Practices, at 3 (Apr. 17, 2008) (van Schewick
    Testimony); *see also*; Part-15.Org Comments at 6 ("\[S\]pecifically
    targeting a specific type of IP protocol would not be in keeping
    with open-access."); Aaron G. Comments at 2 ("Reasonable traffic
    shaping . . . only slows \[traffic\] down or re-queues it to such an
    extent that the high priority traffic gets the share it needs.");
    NATOA Comments at 4--5 ("There is no plausible technical or economic
    reason to suggest that blocking particular applications is a
    reasonable way to manage a network, particularly because network
    providers have numerous nondiscriminatory ways to manage the
    network.").

[^221]: *Cf.* *Filing and Review of Open Network Architecture Plans*, CC
    Docket No. 88-2, Memorandum Opinion and Order, 6 FCC Rcd 7646,
    7667--68, para. 47 (1991) (concluding that, in light of the
    competitive importance of enhanced service providers' access to Bell
    Operating Companies' operations support systems, it would examine
    "with a heightened level of scrutiny" the progress reports of those
    Bell Operating Companies that had not demonstrated significant
    progress); *Southwestern Bell Corp. v. FCC*, 896 F.2d 1378, 1381
    (D.C. Cir. 1990) (upholding the Commission's accounting rules for
    affiliate transactions, noting that the petitioners themselves
    "admit that affiliate transactions call for 'heightened regulatory
    scrutiny'" to protect against possible cost misallocation between
    regulated and nonregulated activities); *Maine v. Taylor*, 477 U.S.
    131, 138 (1986) ("\[O\]nce a state law is shown to discriminate
    against interstate commerce 'either on its face or in practical
    effect,' the burden falls on the State to demonstrate both that the
    statute 'serves a legitimate local purpose,' and that this purpose
    could not be served as well by available nondiscriminatory means."
    (quoting *Hughes v. Oklahoma*, 441 U.S. 322, 336 (1986)).

[^222]: *See* EFF Reply Comments, Attach. at 7 ("Furthermore, in our
    testing, we saw no evidence that Comcast was targeting their jamming
    efforts at customers based on their individual consumption of
    bandwidth. . . . If Comcast had carefully engineered its
    interventions to prevent certain users from contributing
    disproportionately to network con­gestion, we would expect to see
    jamming only after subscribers consumed large amounts of bandwidth,
    or when they were participating in large numbers of connections in a
    short period of time."); Free Press Comments at 35 ("Comcast's
    actions do not merely affect bandwidth hogs but affect all users of
    a particular set of protocols."); Letter from Angela M. Simpson,
    President, Voice on the Net Coalition, to Marlene H. Dortch,
    Secretary, FCC, at 3--4 (Mar. 14, 2008) (arguing that peer-to-peer
    VoIP applications generally represent just a "trickle" in today's
    growing broadband pipes and that Comcast's practice unfairly lumps
    such applications in with more intensive bandwidth users).

[^223]: Comcast Technical *Ex Parte* at 5; *see also* Topolski Comments
    at 4 (Feb. 25, 2008) (citing evidence that Comcast interfered with
    peer-to-peer connections "regardless of the time of day or night,
    regardless of the day of the week, and the presumable differences in
    network congestion during prime time and non-prime time hours of
    use"); Max Planck Institute Report, *cited in* Free Press Technical
    *Ex Parte* at 10.

[^224]: *See* Topolski Letter at 4 ("\[I\]t needs to be noted that
    Comcast's installation of Sandvine is at the metropolitan area's
    aggregation point"); Free Press Technical *Ex Parte* at 11 (citing
    evidence that Comcast's network management techniques are deployed
    not at the neighborhood level but "on \[the\] access routers . . .
    where the metropolitan area meets 'the backbone'"); Comcast
    Technical *Ex Parte* at 5 & n.16 (admitting that although "Comcast's
    network management *generally* occurs at the data node level," "two
    small \[data nodes\] near each other may be managed by a single
    device" (emphasis added)).

[^225]: This evidence may be summarized roughly as follows: Packets sent
    over the Internet include TTL or Time-To-Live counters that decrease
    each time the packet hops to a new destination (*i.e.*, passes
    another network router). Knowing this, Robert Topolski tested
    several peer-to-peer TCP connections. RST packets interrupted
    eighteen of those tests. Using the "trace" application, Topolski
    determined that each of these interruptions occurred after the
    connecting packet's TTL had decreased by five, *i.e.*, after that
    packet had traveled past four separate routers and was headed out of
    Comcast's network. *See* Comments, "DSLReports: Comcast is using
    Sandvine to manage P2P Connections" (Aug. 23--24, 2007), *available
    at* http://www.dslreports.com/forum/r18936691-SandvineBoxFound (last
    visited July 31, 2008); *see also* Topolski *Ex Parte* at 4--5. That
    the connecting packets traveled so far before being interrupted
    suggests that Comcast's network management equipment is not located
    at the neighborhood level.

[^226]: *See* Payne Reply Comments at 7--8 ("By singling out and
    controlling particular sources of high volume use to control
    congestion claimed 'caused' by these sources, Comcast is giving a
    free ride to all other users during peak periods who contribute
    equally to congestion . . . ."); Comcast Hearing Remarks at 13 ("Our
    network management does not 'discriminate' based on . . . the
    identity of the provider or customer using the P2P
    protocols . . . ."); Topolski Letter at 5 ("If a Comcast user
    chooses a Client-Server application to transfer files, such as a
    web-based browser client or an FTP client, the sessions are allowed
    unmolested. However, if a Comcast user chooses a Peer-to-Peer
    application . . . the communications by that application are
    eventually met with Comcast's forged-injected RST
    interference . . . ."); *see also* Peha Comments at 4 ("When there
    is congestion on the beltway (i.e. the ring of highways around
    Washington DC), it would be ridiculous to assert that this
    congestion is caused only by the blue cars, even at times when
    removing the blue cars would end the congestion. Every car that
    travels on the busiest roadways during peak hours contributes to
    congestion, and every car suffers from that congestion. Similarly,
    when the total traffic on a link within Comcast's network is too
    high, all of the traffic on that link is contributing to
    congestion.").

[^227]: We have noted that discriminatory network management is
    generally an unreasonable response to increased congestion, given
    the alternatives of "feasible facility improvements or
    technology-neutral capacity pricing that does not discriminate
    against subscribers using third-party devices or applications."
    *See* *700 MHz Second Report and Order*, 22 FCC Rcd at 15371, para.
    222. Although Comcast rejects a metering solution as incomplete and
    potentially unviable, Comcast Reply Comments at 17--18, it is a
    solution embraced by at least one competitor. *See* Time Warner
    Cable Comments at 24; Brian Stelter, *To Curb Traffic on the
    Internet, Access Providers Consider Charging by the Gigabyte*, New
    York Times (June 15, 2008) ("Time Warner Cable, began a trial of
    'Internet metering' in one Texas city early this month, asking
    customers to select a monthly plan and pay surcharges when they
    exceed their bandwidth limit."), *available at*
    http://www.nytimes.com/2008/06/15/technology/15cable.html (last
    visited July 31, 2008); *see also* Information Technology and
    Innovation Foundation Comments at 9 ("Metered pricing and data caps
    for broadband services are common in many nations.").

[^228]: Hughes apparently follows such a practice. *See* Comcast
    Comments at 21. And one commenter suggests that Comcast's promised
    non-discriminatory network management practices follow this
    approach. *See* Letter from George Ou, Senior Analyst, Information
    Technology and Innovation Foundation, to the Commission, at 9 (July
    15, 2008) ("\[Comcast's\] new system will attempt to fairly
    distribute bandwidth amongst users instead of amongst protocols so
    that it can be completely accurate and fair.").

[^229]: Several commenters recommend just this solution. *See, e.g.*,
    Soghoian Comments at 2 (If Comcast made "available information on
    what it considers the peak periods of network traffic . . . it
    would . . . not be difficult for the authors of BitTorrent
    applications to modify their programs to query a Comcast server to
    determine what is the best time to upload/download data.").

[^230]: Letter from Kathryn A. Zachem, Vice President of Regulatory
    Affairs, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC,
    Attach. at 4 (May 16, 2008); *see also* *id.* at 1 (describing
    Comcast's efforts with the Distributed Computing Industry
    Association to come up with best practices for peer-to-peer
    applications); AT&T Comments at 16--18 (describing AT&T's efforts in
    the same vein); DCIA Comments at 5--6 (stating that the P4P working
    group "seeks to create a framework to enable better ISP and P2P
    coordination" that improves throughput to P2P users, enables ISPs to
    manage link utilization, reduces the number of links transited by
    content, and transitions traffic from links having limited capacity
    links to links with available capacity).

[^231]: Comcast Comments at 25.

[^232]: *Id.* at 17.

[^233]: Comcast Reply Comments at 14.

[^234]: Some commenters cite supposedly similar, or more restrictive,
    policies regarding peer-to-peer traffic of other entities, such as
    colleges and universities. *See, e.g.*, Letter from Daniel L.
    Brenner, Senior Vice President, Law & Regulatory Policy, NCTA, to
    Marlene H. Dortch, Secretary, FCC, at 1 (July 24, 2008). Other
    commenters respond that there are additional distinguishing factors
    in those cases. *See, e.g.*, Letter from Mark Luker, Vice President,
    EDUCAUSE, to Marlene H. Dortch, Secretary, FCC, at 1--3 (July 25,
    2008) (claiming, among other things, different legal and policy
    implications for management of private networks such as those
    operated by colleges and universities); Letter from Robert W. Quinn,
    Senior Vice President-Federal Regulatory, AT&T, to Robert M.
    McDowell, Commissioner, FCC, at 1--2 (July 25, 2008) (distinguishing
    between enforceable terms in contracts with end-users and the use of
    network management technologies, and discussing technological
    characteristics of mobile wireless networks). Given the case-by-case
    approach that we set forth in this item, we do not (and need not)
    opine here on other policies and practices.

[^235]: *Internet Policy Statement*, 20 FCC Rcd at 14988, para. 4
    (emphasis added).

[^236]: *Cf.* Bryan H. Choi, *The* Grokster *Dead End*, 19 Harv. J. L. &
    Tech. 393, 410--11 (2006) (arguing that secondary liability suits
    are a "dead-end" for preventing violations of copyright law).

[^237]: *See* *supra* para. 45.

[^238]: *See* Peha Comments at 5 ("For example, users who saw problems
    would be likely to incorrectly attribute them to faults in their own
    hardware or software, even when those problems are entirely caused
    by Comcast's secret MITM \["man in the middle"\] attacks. In
    addition to P2P users, this is reportedly what happened to users of
    Lotus Notes, whose traffic was allegedly similarly affected by
    Comcast practices. Incidents like these can be frustrating,
    time-consuming, and costly for those affected."); *cf.* James
    Fallows, *The Connection Has Been Reset*, The Atlantic Monthly (Mar.
    2008) (explaining that the Chinese government's Internet management
    practices "leave the Chinese Internet public unsure about where the
    off-limits line will be drawn on any given day. . . . In China, the
    connection just times out. Is it your computer's problem? The
    firewall? Or maybe your local Internet provider, which has decided
    to do some filtering on its own? You don't know. 'The
    unpredictability of the firewall actually makes it more effective,'
    another Chinese software engineer \[said\]. 'It becomes much harder
    to know what the system is looking for, and you always have to be on
    guard.'").

[^239]: 47 U.S.C. § 230(b)(2).

[^240]: *See* van Schewick Testimony at 3 ("\[D\]isclosed information
    must provide enough detail to enable customers to make an informed
    decision and to enable them to adjust their behavior. Comcast's
    current acceptable use policy falls short of these goals."); EFF
    Reply Comments at 3--4 (arguing that Comcast's failure to disclose
    its practices prevented consumers from expressing their preferences
    by "voting with their wallets").

[^241]: Comcast Comments at 40.

[^242]: *See* *supra* para. 6. Although Comcast and certain other
    commenters contend that competition among broadband Internet access
    providers is sufficient to address any concerns regarding network
    management practices, they do not address the effects of this
    information asymmetry between the broadband Internet access provider
    and its customers and competitors. *See, e.g.*, Comcast Comments at
    54--55; Comcast Reply Comments at 38--39; Qwest Comments at 5;
    Verizon Comments at 10. For the same reasons, we likewise are
    unconvinced that a vocal minority will provide a sufficient
    constraint on broadband Internet access providers' network
    management practices. *See, e.g.*, Qwest Comments at 5; Verizon
    Comments at 5.

[^243]: *Ashtabula Cable TV, Inc. v. Ashtabula Tel. Co.*, Docket No.
    17482, Decision, 17 FCC 2d 113, 119, para. 116 (1969).

[^244]: *See* Letter from Kathryn A. Zachem, Vice President of
    Regulatory Affairs, Comcast Corporation, to Marlene H. Dortch,
    Secretary, FCC, at 2 (July 10, 2008) ("We reiterate here that the
    entire Comcast network will be migrated to \[a\] new
    protocol-agnostic management technique by December 31, 2008."
    (emphasis omitted)); Letter from David L. Cohen, Executive Vice
    President, Comcast Corporation, to Kevin J. Martin, Chairman, FCC,
    at 2 (Mar. 28, 2008).

[^245]: Accordingly, we deny Free Press's request for both a preliminary
    injunction and a permanent injunction that would require immediate
    compliance with federal policy, *see* Free Press Complaint at
    24--33, as well as various citizen requests for such "immediate"
    action. *See* *supra* para. 10.

[^246]: In the event that Comcast has not finalized the details of the
    network management practices that it intends to deploy following
    termination of its current practices in time to meet this deadline,
    it may instead submit to the Commission a certification to this
    effect. Should Comcast submit such a certification, Comcast will be
    required to disclose to the Commission and the public the details of
    the network management practices that it intends to deploy following
    the termination of its current practices at least two weeks prior to
    instituting those new practices.

[^247]: The Supreme Court affirmed the Commission's authority to impose
    interim injunctive relief pursuant to section 4(i) in *Southwestern
    Cable*, *see* 392 U.S. at 181, and the Commission has utilized such
    authority in the past. *See* *Time Warner Cable, A Division of Time
    Warner Entertainment Company, L.P.*, MB Docket No. 06-151, Order, 21
    FCC Rcd 8808 (2006); *AT&T Corp. v. Ameritech Corp.*, File No.
    E-98-41, Memorandum Opinion and Order, 13 FCC Rcd 14508 (1998); *see
    also* *Implementation of the Telecommunications Act of 1996;
    Amendment of Rules Governing Procedures to be Followed When Formal
    Complaints Are Filed Against Common Carriers*, CC Docket No. 96-238,
    Report and Order, 12 FCC Rcd 22497, 22566, para. 159 & n.464 (1997)
    (stating that the Commission has authority under section 4(i) of the
    Act to award injunctive relief).

[^248]: We decline, at this time, to assess any forfeitures against
    Comcast, cognizant of concerns that have been expressed about fining
    Comcast in our first adjudication in this area. *See* *supra* para.
    34.

[^249]: Written Statement of the Honorable Kevin J. Martin, Chairman,
    Federal Communications Commission, Before the United States Senate
    Committee on Commerce, Science and Transportation (April 22, 2008)
    (attached as an Appendix).

[^250]: *Broadband Industry Practices*, WC Docket No. 07-52, Notice of
    Inquiry, 22 FCC Rcd 7894, 7896, para. 4 (2007) (internal footnotes
    omitted).

[^251]: *Appropriate Framework for Broadband Access to the Internet over
    Wireline Facilities; Review of Regulatory Requirements for Incumbent
    LEC Broadband Telecommunications Services; Computer III Further
    Remand Proceedings: Bell Operating Company Provision of Enhanced
    Services; 1998 Biennial Regulatory Review --- Review of Computer III
    and ONA Safeguards and Requirements; Inquiry Concerning High-Speed
    Access to the Internet Over Cable and Other Facilities; Internet
    Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for
    Broadband Access to the Internet Over Cable Facilities*, CC Docket
    Nos. 02-33, 01-337, 98-10, 95-20, GN Docket No. 00-185, CS Docket
    No. 02-52, Policy Statement, 20 FCC Rcd 14986 (2005) (*Internet
    Policy Statement*).

[^252]: *See, e.g.*, *Appropriate Framework for Broadband Access to the
    Internet Over Wireline Facilities; Universal Service Obligations of
    Broadband Providers; Review of Regulatory Requirements for Incumbent
    LEC Broadband Telecommunications Services; Computer III Further
    Remand Proceedings: Bell Operating Company Provision of Enhanced
    Services; 1998 Biennial Regulatory Review --- Review of Computer III
    and ONA Safeguards and Requirements; Conditional Petition of the
    Verizon Telephone Companies for Forbearance Under 47 U.S.C. § 160(c)
    with regard to Broadband Services Provided via Fiber to the
    Premises; Petition of the Verizon Telephone Companies for
    Declaratory Ruling or, Alternatively, for Interim Waiver with Regard
    to Broadband Services Provided via Fiber to the Premises; Consumer
    Protection in the Broadband Era*, WC Docket No. 04-242, 05-271, CC
    Docket Nos. 95-20, 98-10, 01-337, 02-33, 20 FCC Rcd 14853 (2005)
    (*Wireline Broadband Internet Access Order*).

[^253]: I note that while the Order describes several alternatives that
    may be better tailored to meet Comcast's purported goal, it stops
    short of specifically endorsing any particular approach. In this
    respect, I withhold judgment on the impact of such practices on
    consumers.

[^254]: *National Cable & Telecomms. Ass'n v. Brand X Internet
    Services*, 545 U.S. 967, 996 (2005).

[^255]: 47 U.S.C. § 230(b)(1), (3).

[^256]: *See SEC v. Chenery Corp.,* 332 U.S. 194, 203 (1947)
    (*Chenery*); *NLRB v. Bell Aerospace Co.,* 416 U.S. 267, 292 (1974).

[^257]: *Wireline Broadband Internet Access Order*, 20 FCC Rcd at 14907,
    para. 96.

[^258]: *Applications for Consent to the Assignment and/or Transfer of
    Control of Licenses, Adelphia Communications Corporation, (and
    Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner
    Cable Inc. (Subsidiaries), Assignees, Adelphia Communications
    Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors
    and Transferors, to Comcast Corporation (Subsidiaries), Assignees
    and Transferees, Comcast Corporation, Transferor, to Time Warner
    Inc., Transferee, Time Warner Inc., Transferor, to Comcast
    Corporation, Transferee*, MB Docket No. 05-192, Memorandum Opinion
    and Order, 21 FCC Rcd 8203, 8298, para. 220 (2006) (*Adelphia/Time
    Warner/Comcast Order*). *See also Broadband Industry Practices,* WC
    Docket No. 07-52, Notice of Inquiry, 22 FCC Rcd 7894, 7896, para. 4
    (2007) (*Broadband Industry Practices Notice*) (concluding that
    "\[t\]he Commission, under Title I of the Communications Act, has
    the ability to adopt and enforce the net neutrality principles it
    announced in the Internet Policy Statement").

[^259]: Comments of the Recording Industry Association of America, In
    the Matter of the Petition of Vuze, Inc. for Rulemaking to Establish
    Rules Governing Network Management Practices By Broadband Network
    Operators, p8.

[^260]: *See* 47 USC § 208 (". . .complaining of anything done or
    omitted to be done by any common carrier subject to this Act . . .
    ."); 47 C.F.R. § 1.711.

[^261]: *National Cable & Telecoms. Ass'n v. Brand X Internet Services*,
    545 U.S. 967 (2005) (*Brand X*).

[^262]: *Id.*, 545 U.S. at 968. I also note that the format and content
    of the complaint were deficient in a number of ways, including a
    failure to cite to any sections "of the Communications Act and/or
    order and/or regulation of the Commission alleged to have been
    violated." *See* 47 C.F.R. § 1.721(a)(4). Additionally, our rules
    require dismissal in instances such as this one where a "document
    purporting to be a formal complaint . . . does not state a cause of
    action under the Communications Act." 47 C.F.R. § 1.728(a). The
    complaint does not state a cause of action under the Communications
    Act because the Commission does not, in this case, have the
    authority to act in the absence of relevant rules.

[^263]: *See Brand X*, 545 U.S. at 976, 996.

[^264]: *See, e.g.*, *Appropriate Framework for Broadband Access to the
    Internet Over Wireline Facilities; Universal Service Obligations of
    Broadband Providers; Review of Regulatory Requirements for Incumbent
    LEC Broadband Telecommunications Services;* Computer III *Further
    Remand Proceedings: Bell Operating Company Provision of Enhanced
    Services; 1998 Biennial Regulatory Review --- Review of* Computer
    III *and ONA Safeguards and Requirements; Conditional Petition of
    the Verizon Telephone Companies for Forbearance Under 47 U.S.C. §
    160(c) with regard to Broadband Services Provided via Fiber to the
    Premises; Petition of the Verizon Telephone Companies for
    Declaratory Ruling or, Alternatively, for Interim Waiver with Regard
    to Broadband Services Provided via Fiber to the Premises; Consumer
    Protection in the Broadband Era*, WC Docket Nos. 04-242, 05-271, CC
    Docket Nos. 95-20, 98-10, 01-337, 02-33, Report and Order and Notice
    of Proposed Rulemaking, 20 FCC Rcd 14853 (2005) (*Wireline Broadband
    Order*), *petitions for review denied*, *Time Warner Telecom, Inc.
    v. FCC*, 507 F.3d 205 (3d Cir. 2007).

[^265]: *Appropriate Framework for Broadband Access to the Internet over
    Wireline Facilities; Review of Regulatory Requirements for Incumbent
    LEC Broadband Telecommunications Services;* Computer III *Further
    Remand Proceedings: Bell Operating Company Provision of Enhanced
    Services; 1998 Biennial Regulatory Review --- Review of Computer III
    and ONA Safeguards and Requirements; Inquiry Concerning High-Speed
    Access to the Internet Over Cable and Other Facilities; Internet
    Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for
    Broadband Access to the Internet Over Cable Facilities*, CC Docket
    Nos. 02-33, 01-337, 98-10, 95-20, GN Docket No. 00-185, CS Docket
    No. 02-52, Policy Statement, 20 FCC Rcd 14986 (2005) (*Internet
    Policy Statement*).

[^266]: *See* Chairman Kevin J. Martin, Comments On Commission Policy
    Statement, News Release (rel. Aug. 5, 2005) ("While policy
    statements do not establish rules nor are they enforceable
    documents, today's statement does reflect core beliefs that each
    member of this Commission holds regarding how broadband Internet
    access should function."); *Wireline Broadband Order,* 20 FCC Rcd at
    14980, Statement of Michael J. Copps, Concurring ("While I would
    have preferred a rule that we could use to bring enforcement action,
    this is a critical step. And with violations of our policy, I will
    take the next step and push for Commission action.").

[^267]: *See* *Wireline Broadband Order*, 20 FCC Rcd at 14904 n. 287
    ("Federal courts have long recognized the Commission's authority to
    promulgate regulations to effectuate the goals and accompanying
    provisions of the Act in the absence of explicit regulatory
    authority, if the regulations are reasonably ancillary to the
    effective performance of the Commission's various
    responsibilities*"*).

[^268]: *Broadband Industry Practices*, WC Docket No. 07-52, Notice of
    Inquiry, 22 FCC Rcd 7894 (Apr. 16, 2007) (*Broadband Industry
    Practices Notice*).

[^269]: *See* *id.*, 22 FCC Rcd at 7909, Statement of Robert M.
    McDowell.

[^270]: *See* Order n. 163.

[^271]: *See, e.g., New York State Comm'n on Cable Television v. FCC*,
    749 F.2d 804 (D.C. Cir. 1984) (*New York State Comm'n on Cable
    Television*). *New York State Comm'n on Cable Television* noted that
    the Commission based its authority on the federal interest in "the
    unfettered development of interstate transmission of satellite
    signals," which in turn was found to flow from Title III of the Act.
    *See id.* at 808 (*citing Earth Satellite Communications, Inc.*,
    Declaratory Ruling, 95 FCC 2d 1223 at paras. 15-16 (1983).

[^272]: *CBS, Inc. v. FCC*, 629 F.2d 1, 26 (1980).

[^273]: *United States v*. *Southwestern Cable Co.*, 392 U.S. 157, 178
    (1968).

[^274]: Order at para. 35 (citing *Applications for Consent to the
    Assignment and/or Transfer of Control of Licenses, Adelphia
    Communications Corporation, (and Subsidiaries,
    Debtors-In-Possession), Assignors, to Time Warner Cable Inc.
    (Subsidiaries), Assignees, Adelphia Communications Corporation, (and
    Subsidiaries, Debtors-In-Possession), Assignors and Transferors, to
    Comcast Corporation (Subsidiaries), Assignees and Transferees,
    Comcast Corporation, Transferor, to Time Warner Inc., Transferee,
    Time Warner Inc., Transferor, to Comcast Corporation, Transferee*,
    MB Docket No. 05-192, Memorandum Opinion and Order, 21 FCC Rcd 8203,
    8298, para. 220 (2006) (*Adelphia/Time Warner/Comcast Order*)).

[^275]: *See* Order at para. 27.

[^276]: Further, "such retroactivity must be balanced against the
    mischief of producing a result which is contrary to statutory design
    or to legal and equitable principles." *SEC v. Chenery Corp.*, 332
    U.S. 194, 203 (1947) (*Chenery II*). *See also Heckler v. Cmty.
    Health Servs. of Crawford County, Inc.*, 467 U.S. 51, 60 n. 12
    (1984) (recognizing that "an administrative agency may not apply a
    new rule retroactively when to do so would unduly intrude upon
    reasonable reliance interests"). The D.C. Circuit, the court to
    which this order most likely will be appealed, has identified five
    non-exclusive factors useful for determining when the retroactive
    effect of an adjudicatory decision is invalid. *See Retail,
    Wholesale and Department Store Union, AFL-CIO v. NLRB*, 466 F.2d
    380, 390 (D.C. Cir. 1972) ("(1) whether the particular case is one
    of first impression, (2) whether the new rule represents an abrupt
    departure from well established practice or merely attempts to fill
    a void in an unsettled area of law, (3) the extent to which the
    party against whom the new rule is applied relied on the former
    rule, (4) the degree of the burden which a retroactive order imposes
    on a party, and (5) the statutory interest in applying a new rule
    despite the reliance of a party on the old standard.") The
    majority's application of the criteria described by the 9^th^
    Circuit in *Pfaff* is thus arguably inappropriate and, I believe,
    incorrect. *See* Order at paras. 33-36 (*citing Pfaff v. U.S. Dep't
    of House. & Urban Dev.*, 88 F.3d 739, 748 (9th Cir. 1996)).

[^277]: *Madison River Communications, LLC and Affiliated Companies*,
    File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (2005) (*Madison
    River*).

[^278]: *Id.*, 20 FCC Rcd at 4296, para. 1 ("The Investigation was
    undertaken pursuant to sections 4(i), 4(j), 218, and 403 of the
    Communications Act."). It is also worth noting that the consent
    decree did "not constitute either an adjudication on the merits or a
    factual or legal finding regarding any compliance or noncompliance
    with the requirements of the Act and the Commission's orders and
    rules." Id., 20 FCC Rcd. at 4298, para. 10.

[^279]: The only signed declaration in either File No. EB-08-IH-1518 or
    WC Docket 07-52 is that of a Comcast employee. *See* Declaration of
    Mitch Bowling, Senior Vice President & General Manager of Online
    Services and Operations, Comcast Cable Communications, LLC, *filed
    with* Letter from Kathryn A. Zachem, Vice President, Regulatory
    Affairs, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC
    (July 21, 2008).

[^280]: *See e.g., Zaria*, Order to Show Cause, Notice of Opportunity
    for Hearing and Hearing Designation Order, EB Docket No. 03-152, 18
    FCC Rcd 14938 (2003) (Commission field offices conducted
    investigations to determine veracity of allegations made in informal
    objections to broadcast license renewal applications); *New Jersey
    Broadband, LP and New Jersey Broadband, LLC*, File Number
    EB-05-PA-12621, Consent Decree, 21 FCC Rcd 12466, 12468 (Enf. Bur.
    2006) (Enforcement Bureau investigation of potential violations of
    the Act and Commission rules included "inspections" and "direction
    finding measurements").