Federal Communications Commission FCC 08-183
1
Before the
Federal Communications Commission
Washington, D.C.  20554
In the Matters of
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 FCCs Internet Policy Statement and Does Not 
Meet an Exception for Reasonable Network 
Management
)
)
)
)
)
)
)
)
)
)
)
)
File No. EB-08-IH-1518
WC Docket No. 07-52
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
I. 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 companys discriminatory and arbitrary practice unduly squelches the dynamic benefits of an 
open and accessible Internet and does not constitute reasonable network management.  Moreover, 
Comcasts failure to disclose the companys practice to its customers has compounded the harm.  
Accordingly, we institute a plan that will bring Comcasts 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.
Federal Communications Commission FCC 08-183
2
II. 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 Comcasts practice affects Internet users.
3. When an Internet user opens a webpage, sends an email, or shares a document with a 
colleague, the users computer usually establishes a connection with another computer (such as a server or 
another end users 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 users 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 
  
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) 
Federal Communications Commission FCC 08-183
3
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 BitTorrent8 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 Comcasts 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 
nations second largest provider of broadband Internet access services  misleadingly disclaimed any 
responsibility for the customers problems.  For example, a Comcast spokesman stated:  Were not 
     
(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 78 ([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 
([BitTorrents] 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 4852.  For example, Comcasts 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, Its 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.
Federal Communications Commission FCC 08-183
4
blocking any access to any application, and we dont throttle any traffic.15 Rather, he indicated that 
Comcasts 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  
Comcasts 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 Comcasts 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, Comcasts servers (through which its 
users packets of data must pass) send to each users computer an RST packet that looks like it comes 
from the other [users] computer and terminates the connection.22 One month after the APs 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 Comcasts 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, Comcasts 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 
  
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 (EFFs tests corroborated [the Associated Press] results  comparisons 
of packet logs between two communicating parties showed that an intervening computer (almost certainly 
Comcasts) 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 EFFs 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 2728.
Federal Communications Commission FCC 08-183
5
predetermined level.26 In all, Comcast claimed that it sent RST packet only during periods of peak 
network congestion27 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 customers Gnutella upload requests were thwarted and approximately 40% of 
all his BitTorrent established upload connections were reset.  In short, the customer concluded that for 
Comcasts 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 Comcast33
and asked the Commission to declare that an Internet service provider violates the [Commissions] 
Internet Policy Statement when it intentionally degrades a targeted Internet application.34 Thereafter, 
over twenty thousand Americans similarly complained of Comcasts 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 Commissions Enforcement Bureau requested a 
response from Comcast,36 and Comcast responded two weeks later.37
  
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 34 (Feb. 25, 2008).
30 Id. at 4.
31 Comcasts statements in its comments and response to Free Presss complaint raise troubling questions about 
Comcasts 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 societys 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, 198794 (2006) (discussing the open Internets 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).
Federal Communications Commission FCC 08-183
6
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 FCCs 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 Commissions Wireline Competition Bureau sought comment on Free Presss 
petition and Vuzes 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.
III. DISCUSSION
A. 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 Internets dynamic potential, Congress set forth the federal 
policies of promot[ing] the continued development of the Internet43 and of encourag[ing] the 
development of technologies [that] maximize user control over what information is received by 
individuals . . . who use the Internet44 as part of the Telecommunications Act of 1996.45
     
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 Comcasts conduct.  See, e.g., Free Press Petition at 714.
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.).
Federal Communications Commission FCC 08-183
7
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 Commissions 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 Commissions classification of 
cable modem service would render the Commission powerless to safeguard consumer interests,55 the 
  
46 20 FCC Rcd 14986.
47 Id. at 14987, paras. 23.  See also National Cable & Telecomms. Assn 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, 3839, Brand X, 
545 U.S. 967 (2005) (Nos. 04-277, 04-281); Brief of the National Association Of Regulatory Utility Commissioners 
Federal Communications Commission FCC 08-183
8
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.] 151161,56 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 authority59 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 Comcasts 
broadband Internet access service are undoubtedly a form of communication by wire,61 so the subject 
matter at issue here clearly falls within the Commissions general jurisdictional grant under Title I.  And 
though our exercise of authority must be reasonably ancillary to the effective performance62 of the 
Commissions 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 Act65  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 
     
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 1315; Time Warner Reply Comments at 15 
([T]he Commissions 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 
Commissions rules must be reasonably ancillary to something.), affd, 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 Commissions general jurisdictional grant 
under Title I and that the regulations are reasonably ancillary to the effective performance of one of the 
Commissions statutory responsibilities have been a solid foundation for the Commissions ancillary authority for 
forty years.  See Southwestern Cable Co., 392 U.S. at 178; American Library Assn v. FCC, 406 F.3d 689, 69192 
(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)).
Federal Communications Commission FCC 08-183
9
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 230s placement within the Act, we think that the Commissions 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 
  
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 Comcasts 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 
Commissions 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 Commissions 
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.coms Free World Dialup is 
Neither Telecommunications nor a Telecommunications Service, WC Docket No. 03-45, Memorandum Order and 
Opinion, 19 FCC Rcd 3307, 331819, para. 18 (2004).  Furthermore, Comcasts 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 statutes emphasis on maximiz[ing] user 
control and empower[ing] parents.  47 U.S.C.  230(b)(3)(4).  Indeed, Comcasts 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 Comcasts argument that the Commissions 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 2930, 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 
Federal Communications Commission FCC 08-183
10
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 
Comcasts 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 carriers network, such as a computer of a 
DSL customer.  The DSL provider may be offering the broadband service itself as a common carrier 
     
court has noted that [o]ne of [the Commissions] responsibilities is to assure a nationwide system of wire 
communications services at reasonable prices, Computer & Communications Industry Assn v. FCC, 693 F.2d 198, 
21213 (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, 73031 (2d Cir. 1973) (upholding 
Commissions 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, 85455 (5th Cir. 1971) 
(upholding regulation of cable ownership based on the Commissions overriding responsibility to carry out section 
1s 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, 1026263, 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 Comcasts 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 70809.  Comcasts reliance on other cases for the same point is similarly flawed.  
See Motion Picture Assn of Am. v. FCC, 309 F.3d 796, 80405 (D.C. Cir. 2002) (holding that section 1 does not 
encompass regulation of program content); Am. Library Assn, 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 Internets 
congestion control techniques can only work well if they are standardized across the entire Internet.).
79 47 U.S.C.  201(a).
Federal Communications Commission FCC 08-183
11
service, in addition to offering other services as common carrier services.80 In that circumstance, 
Comcasts 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, Comcasts actions 
would have implications for the DSL providers 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 companys 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 
  
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, 1633940, 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, 2404748, 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.
Federal Communications Commission FCC 08-183
12
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 provisions 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 Comcasts 
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, Comcasts network management 
practices have the effect of shifting traffic to other carriers telecommunications networks.  It is therefore 
a reasonable exercise of the Commissions 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.
  
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).
Federal Communications Commission FCC 08-183
13
20. In addition, exercising authority over the complaint is reasonably ancillary to the 
Commissions 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 Comcasts particular network management practices  a task 
made all the more difficult by the companys obfuscation regarding its actual practices.96 By exercising 
authority over this complaint, we are able to ensure that Comcasts 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 Acts 
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 
  
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 networks 
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 
Internets 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 networks 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 13.
96 See, e.g., Vuze Petition at 11; Vuze Reply Comments at 78; EFF Reply Comments at 56.
Federal Communications Commission FCC 08-183
14
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 Comcasts 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 Commissions 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 
Comcasts.  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 Assn v. FCC,105 the Commissions 
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 Comcasts jurisdictional argument is that even many of Comcasts 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 
  
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 714.
Federal Communications Commission FCC 08-183
15
act consistently with the Commissions 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 Comcasts P2P management is unlawful falls 
squarely within the FCCs subject matter jurisdiction.109 And following Comcasts lead, the court 
granted Comcasts request for a stay, finding that the reasonableness of a broadband providers 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 
Comcasts conduct here and find it all the more reason to dismiss Comcasts 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 Comcasts 
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 
  
108 Id. at 3.  Hands Off the Internet also refers to the FCCs 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 Comcasts network management practices are unfair or that they are unlawful 
because they violate . . . the FCCs Internet Policy Statement . . . are squarely in the heartland of the FCCs primary 
jurisdiction.).
110 Order Granting Request to Stay at 23, 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 4243; 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 governments deregulatory policy for the Internet).
114 See Amendment of Section 64.702 of the Commissions Rules and Regulations, Docket No. 20828, Final 
Decision, 77 FCC 2d 384 (1980); Amendment of Section 64.702 of the Commissions Rules and Regulations, Docket 
No. 20828, Memorandum Opinion and Order, 84 FCC 2d 50 (1980); Amendment of Section 64.702 of the 
Federal Communications Commission FCC 08-183
16
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 
Internet116) 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 
Presss allegations that the transaction would likely result in anticompetitive conduct or interference with 
     
Commissions 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 & Commcns 
Indus. Assn, 693 F.2d 198 (upholding Computer II rules); Wireline Broadband Order, 20 FCC Rcd at 1486673, 
paras. 2131.
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).
Federal Communications Commission FCC 08-183
17
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 Commissions 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.
B. 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.  
  
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 910 (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, 29495 (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. Dept 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 Assn 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).
Federal Communications Commission FCC 08-183
18
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 hearings132 in an adjudication133  an action later upheld by the D.C. Circuit.134  
Similarly, the Commission adopted the widely respected Carterfone principles via adjudication135 and 
decided to refine its 1974 policy on childrens 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 
  
131 Chenery II, 332 U.S. at 20203 (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 Childrens Television (ACT) for Rulemaking Looking Toward the Elimination of 
Sponsorship and Commercial Content in Childrens Programming and the Establishment of a Weekly 14-Hour 
Quota of Childrens Television Programs, Docket No. 19142, Childrens Television Report and Policy Statement, 
50 FCC 2d 1 (1974), petition for review denied in Action for Childrens 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.910.
Federal Communications Commission FCC 08-183
19
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 Commissions discretion to proceed by 
adjudication is not unbounded148 and that the Supreme Court has held that there may be situations 
where [an agencys] 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 agencys previous interpretation of 
  
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. 2426.
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 agencys] judgment that 
adjudication best serves [its] purpose is entitled to great weight.).
Federal Communications Commission FCC 08-183
20
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 agencys 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 
Adelphias 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 Commissions 
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, Comcasts complaint here that it has 
not been afforded fair notice and due process is quite remarkable.157
  
150 Comcast Ex Parte at 13 (quoting Pfaff v. U.S. Dept 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 Commissions 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 Comcasts compliance 
Federal Communications Commission FCC 08-183
21
36. Comcasts concern, that the Commission is adopting standards very broad and general in 
scope158 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 Comcasts network management practices160 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 Presss allegations and ample opportunity to make its case.162  
Finally, we note that this factor alone is clearly not sufficient to render an agencys 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. 
     
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 & Dept Store Union, AFL-CIO v. 
NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972), in light of the Commissions 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 & Dept Store Union, 466 F.2d at 390.
158 Pfaff, 88 F.3d at 748.
159 See supra para. 2832; infra para. 4153.  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 [agencys] 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 Commn, 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 4445.
165 Chenery II, 332 U.S. at 201.
166 Comcast Comments at 4951.
Federal Communications Commission FCC 08-183
22
Circuit has affirmed the Commissions exercise of ancillary authority in an adjudicatory proceeding and 
in the absence of regulations before.167
39. We also reject Comcasts 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 providers practice of blocking its users ability to use VoIP.173 These and other pronouncements by 
  
167 See CBS, Inc. v. FCC, 629 F.2d 1, 2627 (1980) (reasoning that the Commission had, in the context of an 
adjudication, reasonably construed its ancillary authority to encompass television networks), affd, 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 Commissions various responsibilities.  (quoting Southwestern Cable Co., 392 U.S. at 178)); see also New 
York State Commn 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 Commissions 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 Commissions 
exercise of ancillary jurisdiction over cable modem service. One possibility is the Commissions 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).
Federal Communications Commission FCC 08-183
23
the Commission174 render hollow Comcasts 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.
C. Resolving the Dispute
41. We now turn to whether Comcasts 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 Comcasts 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 
  
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 Comcasts argument that Free Press has shifted legal theories and should be bound by its 
original allegations.  Comcast Ex Parte at 910.  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 companys 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 Comcasts 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 1213.  When information comes to 
Commissions attention suggesting that there has been a violation of the agencys 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 Comcasts transition away from its current practices, infra para. 54, 
the evidence in the record and Comcasts own admissions provide ample support for our adjudication of the dispute 
at issue and our findings here.
Federal Communications Commission FCC 08-183
24
connections are peer-to-peer uploads.179 When Comcast judges that there are too many peer-to-peer 
uploads in a given area, Comcasts 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 laymens 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, Comcasts 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 Comcasts 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 intrusive184 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 Comcasts 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 providers 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 Comcasts conduct disconnected 
Adam Lynn, who uses peer-to-peer applications to watch movie trailers.189 We know that Comcasts 
conduct slowed Jeffrey Pearlmans connection to a crawl when he was using peer-to-peer protocols to 
  
179 Reed Testimony at 3; EFF Reply Comments at 1012, Attach. at 1 (discussing the events that exposed Comcasts 
practice).
180 See Comcast Technical Ex Parte at 5.
181 See Letter from Robert M. Topolski to David Cohen, Comcast Corporation, at 56 (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, Im 
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 Comcasts 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 23 
(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).
Federal Communications Commission FCC 08-183
25
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 Comcasts 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, Comcasts interference with peer-to-peer protocols appears to contravene the 
federal policy of promot[ing] the continued development of the Internet194 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 Comcasts 
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 Internet199 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 
  
190 Free Press Complaint, Declaration of Jeffrey Pearlman (attached).
191 Gerisch Comments at 12; 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 Vuzes 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 Comcasts 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, Comcasts 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 
Federal Communications Commission FCC 08-183
26
prima facie case that Comcasts 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 Comcasts 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 Comcasts logic virtually any instance of blocking could be 
     
barriers to entry for entrepreneurs, see supra para. 20, cf. 47 U.S.C.  257, and degrade an individuals ability to 
access a diverse array of content over the Internet, see supra paras. 2021, cf. 47 U.S.C.  257, 521(4).
202 We only rule on Comcasts 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 2627; Time Warner Cable Reply Comments at 1516.  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 Cables 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 Comcasts 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 Cables arguments for many of the same reasons cited 
there.  See generally Service Rules for the 698746, 747762, and 777792 MHz Bands; Revision of the 
Commissions Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the 
Commissions 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 Commissions 
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 
Commissions 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, 1536970, 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 23 (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 35 (concluding that, with couple of exceptions, 
Comcasts practice makes certain peer-to-peer applications simply not work).
Federal Communications Commission FCC 08-183
27
recharacterized as a form of delay.  We are likewise unpersuaded by Comcasts argument that terminating 
peer-to-peer connections does not equate to blocking access to content because Internet users may upload 
such content from other sources205  whether or not blocking content was Comcasts intent, Comcasts 
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 Comcasts 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 Comcasts 
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 Internets 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, Comcasts 
practices contravene those standards.212 Comcasts 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
  
205 See, e.g., Comcast Comments at 33 (Comcasts 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 3638 (addressing the semantic debate of whether Comcasts practices are 
blocking or delaying).
208 Free Press requests that we declare that a broadband Internet service access providers 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 Presss 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 Comcasts practices deviate from accepted standards); Center for Democracy and Technology 
Comments at 10; Topolski Ex Parte at 3 (arguing that Comcasts 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 Internets 
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 196.
213 Reed Testimony at 3.
Federal Communications Commission FCC 08-183
28
46. As such, numerous experts have condemned Comcasts practice as an unreasonable form of 
network management.  For example, Professor Jon Peha of Carnegie Mellon termed Comcasts practices 
a possible case of consumer fraud214 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 Comcasts 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 Comcasts methods arent 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 Comcasts practices not only 
unreasonable but also most harmful for application-level innovation and user choice.220
47. Moreover, Comcasts 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 Comcasts practice to qualify as reasonable network management, the companys 
justification for its practice must clear a high threshold.221 Its practice should further a critically important 
  
214 Peha Comments at 5.
215 Id. at 4.
216 Id.
217 Reed Testimony at 2.  We agree that Comcasts 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 3:31:3651, 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 45 (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, 766768, 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 Commissions 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 
Federal Communications Commission FCC 08-183
29
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 Comcasts means are carefully tailored to its interest in easing 
network congestion, and it is apparent that no such fit exists.  As an initial matter, Comcasts 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:  Comcasts 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 nodes224  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, Comcasts 
technique may impact numerous nodes within its network simultaneously, regardless of whether any 
particular node is experiencing congestion.  Furthermore, Comcasts practice suffers from the flaw of 
being underinclusive.  A customer may use an extraordinary amount of bandwidth during periods of 
     
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 
con-gestion, 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 
(Comcasts 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 todays 
growing broadband pipes and that Comcasts 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 Comcasts installation of Sandvine is at the metropolitan 
areas aggregation point); Free Press Technical Ex Parte at 11 (citing evidence that Comcasts 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 
Comcasts 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 packets TTL had decreased by five, i.e., after that packet had traveled past four separate routers and was 
headed out of Comcasts network.  See Comments, DSLReports:  Comcast is using Sandvine to manage P2P 
Connections (Aug. 2324, 2007), available at http://www.dslreports.com/forum/r18936691-SandvineBoxFound 
(last visited July 31, 2008); see also Topolski Ex Parte at 45.  That the connecting packets traveled so far before 
being interrupted suggests that Comcasts network management equipment is not located at the neighborhood level.
Federal Communications Commission FCC 08-183
30
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 Comcasts basic complaint 
  
226 See Payne Reply Comments at 78 (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 Comcasts 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 Comcasts 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 1718, 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 
Comcasts 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) ([Comcasts] 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 Comcasts efforts with the 
Distributed Computing Industry Association to come up with best practices for peer-to-peer applications); AT&T 
Comments at 1618 (describing AT&Ts efforts in the same vein); DCIA Comments at 56 (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).
Federal Communications Commission FCC 08-183
31
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 manner232 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 Comcasts 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 Comcasts practices do not 
constitute reasonable network management, a judgment that is generally confirmed by experts in the 
field.237 Comcasts 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 companys professed goal of combating network congestion.  In sum, the 
record evidence overwhelmingly demonstrates that Comcasts 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:  Comcasts 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 
  
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 13 (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 12 (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, 41011 (2006) (arguing that secondary 
liability suits are a dead-end for preventing violations of copyright law).
237 See supra para. 45.
Federal Communications Commission FCC 08-183
32
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 services239 by allowing consumers to compare and contrast competing providers practices.240
53. Comcasts claim that it has always disclosed its network management practices to its 
customers is simply untrue.  Although Comcasts 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 customers Internet connection, but even the best-informed 
customer would not have inferred from these or Comcasts other terms of service that peer-to-peer 
protocols were disfavored on Comcasts networks.  And although Comcast eventually disclosed some 
elements of its network management practices to customers, Comcasts 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 Comcasts use of 
unreasonable network management practices, and our remedy sends the unmistakable message that 
Comcasts 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 
  
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 Comcasts 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 governments 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 computers problem?  The firewall?  Or maybe your local Internet provider, which has 
decided to do some filtering on its own?  You dont 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.  Comcasts current acceptable use policy 
falls short of these goals.); EFF Reply Comments at 34 (arguing that Comcasts 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 5455; Comcast Reply Comments at 3839; 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).
Federal Communications Commission FCC 08-183
33
technique.244 We also recognize the need for a reasonable transition period.245 In light of Comcasts 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 Reagans famous maxim trust but 
verify.  Specifically, in order to allow the Commission to monitor Comcasts 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 Comcasts 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 Comcasts receipt of such 
show-cause order.
  
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 Presss request for both a preliminary injunction and a permanent injunction that 
would require immediate compliance with federal policy, see Free Press Complaint at 2433, 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 Commissions 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).
Federal Communications Commission FCC 08-183
34
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 companys network management 
practices.248 Accordingly, we will not terminate this proceeding but rather retain jurisdiction over this 
matter.
IV. 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 Commissions 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
  
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.
Federal Communications Commission FCC 08-183
35
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 Abbreviation
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 Natl Assn 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
Federal Communications Commission FCC 08-183
36
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 Abbreviation
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
Federal Communications Commission FCC 08-183
37
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 Womens
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
Federal Communications Commission FCC 08-183
38
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 didnt 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.1
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, weve said this several times, including specifically telling Comcast.  In the 2006 
Adelphia Order, which the dissenting Commissioners voted for, the Commission clearly indicated it 
  
1 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).
Federal Communications Commission FCC 08-183
39
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 Commissions network principles only recognize and protect users 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 Comcasts claims, they blocked customers who were using very little bandwidth 
simply because they were using a disfavored application; 
 Contrary to Comcasts 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 wasnt using a disfavored application;  
 Contrary to Comcasts claims, they delayed and blocked customers using a disfavored 
application even when there was no network congestion;
 Contrary to Comcasts 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.
Comcasts 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 operators 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 
Federal Communications Commission FCC 08-183
40
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 arent 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, Comcasts 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.  Comcasts 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 
Federal Communications Commission FCC 08-183
41
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.
Federal Communications Commission FCC 08-183
APPENDIX
42
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
Federal Communications Commission FCC 08-183
APPENDIX
43
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 
Commissions 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 Commissions 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;
Federal Communications Commission FCC 08-183
APPENDIX
44
 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. FCCs 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 Commissions role to enforce, this Internet Policy Statement.  
In fact, the Supreme Court in its Brand X decision specifically recognized the Commissions 
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 
Federal Communications Commission FCC 08-183
APPENDIX
45
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 
Commissions ancillary jurisdiction to impose regulatory obligations on broadband 
Internet access providers.1
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 Commissions 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.
Federal Communications Commission FCC 08-183
APPENDIX
46
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 Commissions network principles only recognize and 
protect users 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 operators identity?
     
1 Broadband Industry Practices, WC Docket No. 07-52, Notice of Inquiry, 22 FCC Rcd 7894, 7896, para. 4 (2007) 
(internal footnotes omitted).
Federal Communications Commission FCC 08-183
APPENDIX
47
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, its 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 
Federal Communications Commission FCC 08-183
APPENDIX
48
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.    
Federal Communications Commission FCC 08-183
APPENDIX
49
Specifically, this equipment (1) blocks certain attempts by subscribers to upload information 
using particular legal peer-to-peer applications by pretending to be the subscribers 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.
Federal Communications Commission FCC 08-183
APPENDIX
50
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. 
Federal Communications Commission FCC 08-183
51
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 FCCs 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 FCCa meaningful stride forward on the road to guaranteed 
openness of the Internet.  Its taken a while for us to get here, but that doesnt detract from the historic 
importance of what the Commission does today.  We recognize that protecting Internet openness is like 
protecting the Internets immune system, safeguarding it from bugs and infections that could slow its 
circulation, make it sick, maybe even kill it.
Lets be clear about what todays 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 programviolates the FCCs 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 engineerseither now or in 
the futurefrom coming up with new and better ways to serve their customers.
In short, todays 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 
surebut the proof was always going to be in the pudding.
Network operators assured us nothing untoward was going on, but it wasnt long before we heard 
rumblings that maybe things werent 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 
Federal Communications Commission FCC 08-183
52
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 users 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 companys 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, Comcasts 
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 Comcasts network.
The Communications Act, as amended, gives the Commission ample authority to act on this 
Complaint, and todays 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 Internets 
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.  
Its 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, its a good bet that someone will try to use them to their own 
advantage.  Im not making a moral judgment here; its 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.  Todays 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 dont 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 
Federal Communications Commission FCC 08-183
53
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 purposeswhich may not always be the publics 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 statementbased upon the four principles and 
rooted in our authority under the Communications Actthat 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 todays 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. Thats what something so precious as this technology deserves.  A fifth 
principle will provide the needed reminder to alllong after the details of this case become blurry 
historythat the Commissions policy of network openness is ongoing and its remedies are always 
available.  Its 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, andmost of allwith the users and innovators of the Net as together we work to unlock its vast 
potential.
Federal Communications Commission FCC 08-183
54
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 FCCs 
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,1 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 todays 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.2 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.
  
1 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).
2 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).
Federal Communications Commission FCC 08-183
55
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 Statements 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 Comcasts approach to be over-inclusive and ill targeted to the 
purported goal.3 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 Comcasts 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 Commissions 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 FCCs 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 . . . .4 Following this direction from the Supreme Court, the Order sets out the 
Commissions 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 
  
3 I note that while the Order describes several alternatives that may be better tailored to meet Comcasts 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. 
4 National Cable & Telecomms. Assn v. Brand X Internet Services, 545 U.S. 967, 996 (2005).
Federal Communications Commission FCC 08-183
56
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.5  
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.6 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 Commissions decision to resolve this case through adjudication rests on firm 
legal ground.  It is consistent with the Commissions 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.7 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.8
In many ways, todays 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 
  
5 47 U.S.C.  230(b)(1), (3).
6 See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (Chenery); NLRB v. Bell Aerospace Co., 416 U.S. 267, 292 
(1974).
7 Wireline Broadband Internet Access Order, 20 FCC Rcd at 14907, para. 96.
8 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).
Federal Communications Commission FCC 08-183
57
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 Commissions 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 Commissions 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.
Federal Communications Commission FCC 08-183
58
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)
Todays 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 childs 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 ISPs 
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 
Federal Communications Commission FCC 08-183
59
broadband experience.
Clearly these efforts in mitigation of the underlying issues of concern were facilitated by the 
Commissions 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.
ISPs must do better.  Comcasts 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.  Comcasts efforts to improve its disclosures is another positive result emanating from the 
Commissions 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 
Federal Communications Commission FCC 08-183
60
pharmaceuticals to of course, songwriters and motion pictures.
Further, as some in the content industry have rightly highlighted, all four principles enumerated in the
FCCs 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 content would be inconsistent with the clear line between lawful and unlawful 
content drawn in the FCCs policy.1 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 Commissions and the publics 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.
  
1 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.
Federal Communications Commission FCC 08-183
61
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 FCCs 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, Id like to thank the public interest groups who brought this matter to our attention for doing 
so.  Id 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 Tates 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.1  
  
1 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.
Federal Communications Commission FCC 08-183
62
As the Supreme Court held in the Brand X case,2 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.3
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.4 However, we do not 
have any rules governing Internet network management to enforce.  Since the Supreme Courts 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.5 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.6 Based on their remarks at the 
time, at least two of my colleagues in the majority agreed.7 Indeed, in the Wireline Broadband Order, 
released the same day, the Commission clearly contemplated initiating a rulemaking in response to 
  
2 National Cable & Telecoms. Assn v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X).
3 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.
4 See Brand X, 545 U.S. at 976, 996.
5 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).
6 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).
7 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, todays 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.).
Federal Communications Commission FCC 08-183
63
allegations of misconduct, emphasizing its authority to promulgate regulations8  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.9 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 
Commissions ancillary jurisdiction to regulate interstate and foreign communications.10 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 majoritys 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 Commissions exercise of ancillary authority in very different 
adjudicatory proceedings and in the absence of regulations is, in my view, unpersuasive.11 The 
Commission in those cases was acting pursuant to a provision of the statute that provides the Commission 
express grant of authority12 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.13  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 operators management practices is reasonably ancillary to the 
effective performance of the Commissions various responsibilities under those sections of the Act.14  
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?
  
8  See Wireline Broadband Order, 20 FCC Rcd at 14904 n. 287 (Federal courts have long recognized the 
Commissions 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 Commissions various responsibilities).
9 Broadband Industry Practices, WC Docket No. 07-52, Notice of Inquiry, 22 FCC Rcd 7894 (Apr. 16, 2007) 
(Broadband Industry Practices Notice).
10 See id., 22 FCC Rcd at 7909, Statement of Robert M. McDowell.
11 See Order n. 163.
12 See, e.g., New York State Commn on Cable Television v. FCC, 749 F.2d 804 (D.C. Cir. 1984) (New York State 
Commn on Cable Television).  New York State Commn 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).
13CBS, Inc. v. FCC, 629 F.2d 1, 26 (1980).
14 United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968).
Federal Communications Commission FCC 08-183
64
For the same reasons, the majoritys arguments that the Adelphia/Time Warner/Comcast Order
somehow constituted notice of the Commissions intent to adjudicate the Policy Statement,15 and that 
Comcasts consummation of the merger approved in the Adelphia/Time Warner/Comcast Order
constituted a waiver of its right to challenge such an adjudication,16 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 Courts description of an agencys adjudicatory 
authority in Chenery II, the majority ignores that same courts admonition to avoid adjudications that may 
have a retroactive effect.17
Additionally, todays order relies on the Madison River consent decree of 2005 to justify todays 
actions.18 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.19
Perhaps most puzzling of all is the Commissions 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 
  
15 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)).
16 See Order at para. 27. 
17 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 majoritys application of the criteria described by the 9th Circuit in Pfaff is thus arguably 
inappropriate and, I believe, incorrect.  See Order at paras. 33-36 (citing Pfaff v. U.S. Dept of House. & Urban Dev., 
88 F.3d 739, 748 (9th Cir. 1996)).
18 Madison River Communications, LLC and Affiliated Companies, File No. EB-05-IH-0110, Order, 20 FCC Rcd 
4295 (2005) (Madison River).
19 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 Commissions orders and rules. Id., 20 FCC Rcd. at 4298, para. 10.
Federal Communications Commission FCC 08-183
65
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 complainants view, some press 
reports, and the conflicting declaration of a Comcast employee.20 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 todays decision.21
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 majoritys 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, todays action by the FCC may actually result in slower online speeds for 95 percent of 
Americas 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 todays 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 
  
20 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).
21 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).
Federal Communications Commission FCC 08-183
66
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.  Heres the problem: If you use cable modem or wireless 
broadband services, you may not know it, but you share bandwidth with your neighbor.  Thats 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 worlds 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 todays 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 Japans 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 Internets 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.  Todays 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 
Federal Communications Commission FCC 08-183
67
by managing surges of information flow?  As a result of todays 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 Internets 
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 dont 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.