**PRESS 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*, WC Docket No. 07-52

Would you be OK with the post office opening your mail, deciding they
didn't want to bother delivering it, and hiding that fact by sending it
back to you stamped "address unknown -- return to sender"? Or if they
opened letters mailed to you, 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.

We begin by affirming that the Commission can and will enforce the
Internet Principles. 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 the principles. 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." In fact, we've said this several times,
including specifically telling Comcast in the 2006 *Adelphia* Order that
the Commission would act on any complaints that it received about
blocking or degrading Internet content:

> "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, they 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 customers 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.
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 go a
long way to reducing 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 some marketplace agreements 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, these actions did not obviate
the need for us to act today.

First, we need to establish the important precedent that we will stop
the bad actors. We also establish a clear framework for how we will
conduct our fact-intensive inquiries if situations arise in the future.

Second, 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.

Third, particularly given the obfuscation Comcast engaged in to date, it
is important that we require Comcast to respond to many still-unanswered
questions:

-   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.

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.