Comcast wants "clear rules" from the FCC when it comes to network management, and it wants them so badly that it's even willing to accept network neutrality as the price of getting them. What the huge ISP does not want is the kind of ambiguity that led to so much acrimony about its P2P blocking in 2008, and which is now being hashed out in a DC courtroom.

Is that clear?

In a blog post this week, Comcast executive vice president David Cohen took to the intarwebs to pledge his company's "constructive participation" in the current net neutrality rulemaking process. The company says it is serious about this effort after feeling burned by the FCC's surprisingly enforceable "Internet policy statement" (a document which said that it was not enforceable) in 2008. Comcast wants the "black mark" of an FCC sanction removed from its record, and it is currently fighting in the DC Court of Appeals to overturn the FCC's action against it.

Cohen doesn't want net neutrality rules, and will still work to convince the FCC they are counterproductive. "Broadband competition and consumer demand" will take care of any problems, he says (an assertion that would appear to be demonstrably untrue in the 2008 BitTorrent blocking case, which needed FCC investigations to prompt change).

But Cohen can read walls, and he's seen the writing on this one: FCC Chair Julius Genachowski is bent on some sort of net neutrality regulation. "If that is the result," Cohen says, "we are obviously better off having 'clear rules,' as [Comcast CEO] Brian [Roberts] stated, than with the confusion of having the FCC try to enforce an unenforceable and vague 'policy statement.'"

It’s truly sad that the debate around “net neutrality,” or the need to regulate to “preserve an open Internet,” has been filled with so much rhetoric, vituperation, and confusion. That’s gone on long enough. It is time to move on, and for the FCC to decide, in a clear and reasoned way, whether and what rules are needed to “preserve an open Internet,” and to whom they should apply and how. In launching the rulemaking, the FCC said that greater clarity is required, and we agree.

All in "good faith"

Cohen's post is also revealing for the picture it paints of the company. Remember that BitTorrent interference with the TCP reset packets? Cohen twice refers to it as a simple "good faith" attempt to deal with congestion. The company was shocked—shocked!—to find that people objected, or that the FCC decided to get involved. Hopefully, the DC Appeals Court judges will "set the record straight and clear our name."

David Cohen

Cohen is right that the FCC's actions in the case merit scrutiny, and we look forward to the ruling from Comcast's legal challenge. But he's certainly bathing the company in heavenly light here; the repeated claims about simple "good faith" engineering decisions are a bit harder to swallow if you paid attention to the record actually generated by the Comcast proceeding.

It was Cohen who appeared at one of the FCC public hearings on the issue to tell the five commissioners that "what we are doing is a limited form of network management, objectively based upon an excessive bandwidth consumptive protocol during limit periods of network congestion." And again, "The company only applies this management during heavy periods of network traffic." Furthermore, "We only apply the technique in a limited geographic area, where that congestion exists." Finally, "If and when we delay a P2P upload, we only delay it until such time as the congestion alleviates, in which case it is honored."

All this testimony can be summed up as: Hey, we only do this during periods of actual congestion!

Of course, you know what's coming. Cue FCC Chair Kevin Martin's testimony to Congress:

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.

Later, when the FCC Order sanctioning Comcast (PDF) finally appeared, it documented the several times that the company changes its story throughout the proceedings. By the end, Comcast was finally admitting 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."

The changing explanations prompted FCC staff to include a footnote in the Order: "Comcast’s statements in its comments and response to Free Press’s complaint raise troubling questions about Comcast’s candor during this proceeding."

So, while the company has every right to seek its day in court over how the FCC acted, it's disingenuous to talk about how "truly sad" one is that "the debate around 'net neutrality,' or the need to regulate to 'preserve an open Internet,' has been filled with so much rhetoric, vituperation, and confusion." There's been plenty of "confusion" in the proceeding, but much of it has been emanating from Comcast HQ.

In any event, that's all in the past! "It is time to move on," says Cohen, "and for the FCC to decide, in a clear and reasoned way, whether and what rules are needed to 'preserve an open Internet,' and to whom they should apply and how."

The initial comment period on the FCC's net neutrality proposals ends in several days, so expect the typical rush of last-minute filings that carpet-bomb the agency with information.