James Gattuso

Comcast-BitTorrent: A Triumph for Regulation?

Was yesterday’s groundbreaking deal between BitTorrent and Comcast on network management a triumph for regulation? That’s the storyline being widely peddled in the wake of yesterday’s announcement that the two would work together to solve network management problems.

At first, it looked like the announcement might signal an end to FCC involvement in the dispute.. That, at least, was the view of the sensible – but all too lonely – Commissioner Robert McDowell of the FCC. “[I]t is”, he said, “precisely this kind of private sector solution that has been the bedrock of Internet governance since its inception.”


But that prospect soon foundered. Chairman Kevin Martin, in fact, took the opportunity to articulate his strongest-yet call for FCC regulatory action.

But was the agreement itself a triumph of regulation? Quite a few are saying yes. Marvin Ammori of Free Press, for instance, declared that that it was “the direct result of public pressure — and the threat of FCC action — against Comcast”. Even our own Hance Haney, in his excellent summary of the issue yesterday, seemed to credit the agreement to the threat of regulation.

There’s no doubt that the threat of regulation can spur action. But in this case, it turns out that action was well underway before the issue went before the FCC. In an interview with CNET’s Marguerite Reardon over a week ago, BitTorrent CEO Doug Walker stated that BitTorrent was working with Comcast’s CTO on a solution to their network problems “long before this story broke.”

It’s impossible to say that a deal would have been reached without the threat of regulation. Walker seemed skeptical of regulation, though. Asked whether the FCC should take action, he said “there should be less lawyering, quite frankly”. (He did predict that public opinion would play a role.)

The Walker interview indicates that even before the regulators got involved, the two firms saw it in their interest to work out their problems. Is it possible that Commissioner McDowell is – once again – correct, and markets do work after all?

March 28, 2008 | Comments |

5 comments posted

  1. Posted by: Ravenhawk - 03/28/2008

    The FCC is one of those rather unnecessary organizations that, in order to justify it’s existence, likes to take credit for this sort of thing. I’m sure that the Bittorrent people would have been able to work this one out on their own without intervention (or threat thereof.)

  2. Posted by: Robb Topolski - 03/29/2008

    This is a call for regulation — of one kind or another. Either create regulation to bring healthy, sensible competition to Broadband …or… create regulation mandating Network Neutrality. Choose your nightmare, but one of them HAS to be done.

    “But in this case, it turns out that action was well underway before the issue went before the FCC.”

    “Well underway” is a bit generous. Even with Comcast CTO Tony Werner reportedly acting as an adviser to BitTorrent Inc. (a relationship I cannot find disclosed anywhere prior to yesterday’s announcement), BitTorrent Inc’s learned about the protocol interference in the news.

    And let’s talk about this P2Peace moment –

    I think it’s strange that anyone believes a word that Comcast says. This is the Comcast that:

    1.Told the government that they would not degrade traffic in order to convince officials that network neutrality regulations were not needed.

    2.Started degrading P2P traffic the very next year, and failed to tell anyone what they were doing.

    3.Used a system that utilized forgery, and successfully placed blame on the other peer instead of Comcast.

    4.Denied it when caught.

    5.Then changed their story when the denials were not believed, but still never came out and said what they were doing.

    6.Then they justified their actions by throwing their other Cable-Internet brothers and sisters under the bus with their “they do it too!” defense

    7.Then stealthily changed the AUP days before an FCC filing where they referred to the new provisions.

    8.When the changed AUP started getting press attention, they stated that a prominent story on Comcast.net alerted millions of visitors of
    the change and accused critics of crying “Wolf!” (Google cache proved that nothing alerted users to the changed AUP until the day after the press started asking questions.)

    9.Then they packed the Harvard FCC hearing.

    And now Comcast, whose shenanigans hit the press only 6 months ago, has generously granted itself another 9 months of continuing to violating IETF Internet Standards, the 2005 FCC Policy Statement, and the rights of its 13.9 million customers!

    The Comcast agreement with BitTorrent Inc. isn’t worth the paper that it’s NOT written on!

  3. Posted by: enigma_foundry - 03/29/2008

    The Walker interview indicates that even before the regulators got involved, the two firms saw it in their interest to work out their problems. Is it possible that Commissioner McDowell is – once again – correct, and markets do work after all?

    This is total SPIN.

    Democracy and the free press defeated Comcast, who realized their actions, if discovered, would lead to regulation, which is why they hid and lied about their actions. Democracy contains the threat of regulation and taxation, and Comcast wanted to head both of those off.

    The implicit threats of regulation and taxation which are always part of democracy is why libertarians seem not so very enthusiastic about democracy.

    Example: Tim Lee’s refusal to answer the very simple question: Which democratically constituted government body has the authority to tax internet sales?

    Kind of reminds me of the reasoning behind the complaint “No taxation without representation”

    The flip side of this is that if you give people representation, you MUST give them the power of taxation.

  4. Posted by: Richard Bennett - 03/29/2008

    I see Robb Topoloski is carrying on with his usual hysterics here. I’ll just correct one of his false claims: BitTorrent and Comcast have a signed Memorandum of Understanding, written on actual paper. The paper was made from trees, with some rag content. It exists and is not a fiction.

    The reaction to this MOU from the pro-regulation crowd is bitter and angry, and I find that a bit odd. For all these many months they’re been demanding protocol-agnostic traffic management, and when they get it, it’s suddenly the most evil thing in the world.

    Some people are just never going to be happy, apparently.

  5. Posted by: Ryan Radia - 03/29/2008

    This isn’t a call for regulation. It’s a reminder of the government’s increasing irrelevance thanks to the Internet. Was Kevin Martin the first to discover Comcast’s interference with p2p? Not even close. Funchords posted his report on DSL Reports, and a few weeks later the AP picked up the story, before regulators were even clued in to the matter. Before the FCC had a word to say, the blogosphere was ignited and pretty much everybody clued in to tech policy was aware of Comcast’s transgressions.

    Sure, the looming threat of fines and regulation played its part, but the main reason Comcast is backpedalling is due to all the negative press and consumer backlash that has emerged since Comcast’s RST packet-injection was revealed.

    Comcast cares about making money. Losing customers, or discouraging new ones from signing up, is exactly what Comcast wants to avoid.

    Funchords, aren’t you happy that your ISP will soon begin managing traffic in a protocol-agnostic matter? I thought that was exactly what you wanted to happen. 9 months won’t come soon enough, but at least they have made a clear-cut committment.

    As you mention, more broadband competition is crucial. Neutrality rules telling private ISPs how they can manage their networks will not encourage new entrants. We need spectrum liberalization and local franchise reform so people will have more options.

    Still, 78% of U.S. households with a phone line can get DSL. So roughly 4 of 5 Comcast customers angered by Sandvine can just switch to DSL. There are drawbacks (lower throughput and more latency due to interleaving) but advantages as well(lower prices, very lenient bandwidth caps, minimal traffic shaping).

    Cable and DSL aren’t perfect substitutes, but they are both high-speed internet options available to most people. And if and when LTE or Wi-Max become common that’s another choice as well. Just because the free market can’t perfectly meet every consumer need does not mean government regulation is the answer.

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