A civil but tense tone prevailed at today's Federal Communications Commission's hearing on how to address concerns that Comcast and other ISPs degrade P2P traffic. Comcast executive vice president David L. Cohen was the star of the show, and he knew it. "It's a pleasure to be here as a participant and hopefully not the main course for your meal," Cohen told all five Commissioners and a lively audience during the event's first panel discussion, held at Harvard Law School in Cambridge, Massachusetts.

Comcast makes its case

"Now it's true," Cohen explained in his opening remarks, "that to maximize our customer's Internet experience we do manage our network. But don't let the rhetoric of some of the critics scare you. There's nothing wrong with network management. In fact, every broadband network is managed."

Of course that's not how other panelists and the events' many net neutrality supporters at Harvard Law's Ames Courtroom saw it, particularly Cohen's fellow panelist Marvin Ammori, general counsel for Free Press. "This hearing is not about some technical details of managing networks," Ammori began, "it's about the future of online television and about the future of the Internet. The facts aren't even disputed. Comcast is deliberately targeting and interfering with legal peer-to-peer technology, like BitTorrent and others."

After both Ammori, Cohen, and five other panelists finished their presentations, FCC Commissioner Jonathan Adelstein pressed Cohen for an outline of the cable giants' network policies. Is Comcast delaying or blocking P2P use? Adelstein asked.

"I'm going to say again," Cohen asserted, "on the record in front of this Commission, Comcast does not block any Web site, application, or Web protocol, including peer to peer services. Period. Doesn't happen."





Austin Hall at Harvard Law School, the site of the hearing

But, Cohen continued: "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."

The VP listed six limitations to "what it is that we are doing," as he put it again. First, the company only applies this management during heavy periods of network traffic. "Number two: We only apply the technique in a limited geographic area, where that congestion exists." Three: Comcast only manages uploads, not downloads. "Number four: We only manage the uploads when there is not a simultaneous download occurring at the same time." Five: Comcast delays the request for an upload, it does not block it.

"And number six," Cohen concluded. "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."

Unapologetic and even defiant in tone, Cohen dismissed last year's Associated Press report that the news agency experienced degradation when it tried to P2P the St. James Bible. He called it an "artificial experiment," rather than a test. The net effect of Comcast's network management policies, Cohen added, when BitTorrent other P2P technologies are used "as designed to be used... is almost imperceptible on the customer experience."

Using the Internet the "right way"



Another panelist sitting next to Cohen, Columbia University telecommunications law professor Timothy Wu, replied to these claims. He sounded a bit exasperated. "There a single fact here that they cannot deny," Wu explained, "which is that the Associated Press and EFF [the Electronic Frontier Foundation] which are users of the Internet, sought to use an application a certain way, and they were blocked... Now he's saying that they weren't using the Internet in the 'right way.' They weren't using these applications in the 'right way.' Well the whole problem is that Comcast shouldn't be telling people how they're supposed to use applications."

Wu referred to "principle number two" of the FCC's 2005 statement on the Internet, which says that consumers are entitled to run applications and use services of their choice. "The whole point of principle number two is that you get to use the Internet the way you want to use it," Wu continued. "Let me translate what he [Cohen] just said: Comcast is blocking BitTorrent and that's the end of the story!"

The audience applauded, but this was only the beginning of a long, complex discussion that included some of the nation's most prominent scientists, engineers, and entrepreneurs. among them Eric Klinker of BitTorrent and David Clark of Massachusetts Institute of Technology. Clark seemed skeptical of any across-the-board prophylactic legislation on net neutrality. "It may very well be that a sort of ex post administrative case law approach is the right way to do it," he explained, "because we have to work it out, and I'm actually more comfortable working it out this way than I am trying to draw the bright line in advance in some legislation."

Throughout the day FCC Chair Kevin Martin and several other Commissioners attempted to forge some minimal agreement on the problem, suggesting that most parties concurred that Comcast and other companies should fully disclose their practices and the consequent limitations that consumers may experience with the ISP. But even here panelists resisted any consensus.

"Clearly for this market to function properly, there has to be a certain amount of disclosure," conceded University of Pennsylvania law professor Stephen Yoo. "The point that's made by network operators is that too much disclosure can give a road map to people who would like to frustrate the system."

And right after Yoo, Free Press's Ammori warned that disclosure is not enough. "We're saying that you should never be blocking. You should never be discriminating," he told Martin. "There are many non-discriminatory ways to handle bandwidth beyond blocking your competitors."

Massachusetts congressman Ed Markey also appeared at the hearing, and spoke just before the panelists began to debate. The event concluded three days before the presumptive end of an FCC proceeding requested by Free Press and the Vuze Corporation on whether ISPs are violating the Commission's Internet neutrality guidelines, and if so, how to correct the problem. Last week the Progress and Freedom Foundation petitioned the FCC for a two-week extension on the comment cycle, but today Free Press, Public Knowledge, and five other groups asked that the Commission deny the request.

"Comcast has been deliberately degrading BitTorrent and other peer-to-peer protocols for at least four months, and most likely Comcast did so for many months before testing was able to prove what it had repeatedly denied," their Opposition argues. " Extending the filing deadline will only extend the time during which these harms accrue."

If you want to get a taste of what went on, we've got MP3 audio of some of the exchanges between Cohen, Wu, and Ammori.