Does Comcast give its own Internet phone service special treatment compared to VoIP competitors who use the ISP's network? That's basically the question that the Federal Communications Commission posed in a letter sent to the cable giant on Sunday. The agency has asked Comcast to provide "a detailed justification for Comcast's disparate treatment of its own VoIP service as compared to that offered by other VoIP providers on its network." The latest knock on the door comes from FCC Wireline Bureau Chief Dana Shaffer and agency General Counsel Matthew Berry.

As everybody who has followed the Great Comcast v FCC P2P drama knows, in September the company complied with Commission demands that it mend its BitTorrent throttling ways and come up with a different approach to network management. That it has, setting up a complex, "shallow packet" inspection system that occasionally (we hope) deprioritizes users based not on the kinds of protocols they're accessing, but on the amount of congestion in their immediate area, plus the amount of bandwidth they're gobbling up themselves. In those instances these users have their traffic reprioritized as "best effort [BE]" down from "priority best effort [PBE]."

Let's get choppy

But in reviewing Comcast's explanation of this new system, the FCC has noticed something that it finds fishy. "During times of actual network congestion," Comcast's filing explains...

"when BE traffic might be delayed, there are a variety of effects that could be experienced by a user whose traffic is delayed, depending upon what applications he or she is using. Typically, a user whose traffic is in a BE state during actual congestion may find that a webpage loads sluggishly, a peer-to-peer upload takes somewhat longer to complete, or a VoIP call sounds choppy."

This potential choppiness stands in contrast, the FCC contends, to Comcast's own VoIP product, Comcast Digital Voice (CDV), a difference that Comcast discloses on its FAQ Network Management page. "Is Comcast Digital Voice affected by this [network management] technique?" the page asks. "What about other VoIP providers?"

No, the company explains. CDV is a "separate facilities-based IP phone service" and "is not affected by this technique."

The Commission would like some more details about this assertion. "We request that Comcast explain why it omitted from its filings with the Commission the distinct effects that Comcast's new network management technique has on Comcast's VoIP offerings versus those of its competitors," its letter asks. And how is CDV "facilities based"? the agency wants to know, and does it impact network congestion differently from other VoIP providers?

Subject to regulation?

The soup gets even hotter. If Digital Voice represents a consumer offering "distinct," in the FCC's words, from its "broadband offering," then it could conceivably be classified as "the privileged transmission of information of the customer's choosing across Comcast's network," the agency suggests. In other words, by virtue of the way Comcast has structured its VoIP product, it's a "telecommunications" rather than an "information" service, and thus potentially subject "to the same intercarrier compensation obligations applicable to other facilities-based telecommunications carriers."

That "obligations" word sure sounds like "charges" as in "Comcast pays money."

Needless to say the Usual Suspects are on this like white on rice. Ars got the latest Free-Press-O-Gram as we were writing up the story.

"This letter is a positive sign that the FCC's Comcast decision was not a one-and-done action on Net Neutrality," declares Free Presses' Ben Scott. "We are pleased that the commission is conducting an ongoing investigation into network management practices that might impact users' access to the online content and services of their choice."

Comcast, it should be noted, is challenging the FCC's P2P Order in a federal appeals court, and sent us a characteristically circumspect initial response to this inquiry. "We have fully complied with the FCC's order regarding our congestion management practices," a company spokesperson told us. "We are reviewing the FCC staff's letter."

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