Once FCC Chair Kevin Martin announced his support for sanctions against Comcast, penalties looked inevitable. The two Democrats on the Commission, long supportive of network neutrality, seemed set to vote along with Martin and punish Comcast for its P2P "delaying" techniques; late this afternoon at FCC headquarters, they did, and a majority has now spoken.

The Wall Street Journal reports tonight that commissioners Copps, Adelstein, and Martin have decided against the cable giant, paving the way for an official vote when the order is publicly voted on next Friday. US ISPs, take note: the FCC has just used its 2005 Internet Policy Statement to draw a line in the sand. Step across it at your peril.

The agony, the ecstasy

Free Press, which has been behind the complaint against Comcast, must have an office awash in champagne this evening. Marvin Ammori, the group's general counsel, said in a statement sent to Ars, "This vote reflects the bipartisan support for protecting consumers' access to the free and open Internet. Comcast's blocking is a flagrant violation of the online rights established by the FCC. If adopted, this order would send a strong signal to the marketplace that arbitrarily interfering with users' online choices is not acceptable. Internet service providers do not get to decide the winners and losers online."

A Comcast spokesperson contacted Ars with a statement as well, this one clinging to the conviction that Comcast hasn't done anything wrong, shouldn't be punished, and wasn't blocking anyone, anyway.

"It is always hard to respond to rumors," said the statement, "however, we continue to assert that our network management practices were reasonable, wholly consistent with industry practices and that we did not block access to Web sites or online applications, including peer-to-peer services. We do not believe the record supports any other conclusion."

But three FCC commissioners appear to disagree.

The initial report on the vote said nothing about which way Republican commissioners McDowell and Tate might lean. FCC watchers wouldn't be at all surprised to see both vote against the order; the really interesting moment could come if they support it.

Having four or even five commissioners support the order would send a strong bipartisan signal to ISPs that they need to take great care with any sort of discriminatory throttling based on anything more specific than a user's total bandwidth. A 3-2 vote might indicate that the issue is far more contested, and that a future FCC might be more sympathetic to arguments like those made by Comcast.

Internet Policy Statement: now with twice the potency!

In any event, the decision to penalize Comcast will provide a Mario-style power-up to the FCC's 2005 Internet Policy Statement. The four principles in that statement, which are subject to "reasonable network management," are:

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

Consumers are entitled to competition among network providers, application and service providers, and content providers

If those are important principles to you, why not drop a quick note to one or more of the commissioners? As public servants, they often spend more time listening to nonprofits, broadcasters, telcos, lobbyists, and cable companies than to the people; those who do contact them are usually 1) upset or 2) seeking a favor. In this case, a simple "thank you" might be more appropriate.

Comcast's P2P degrading techniques weren't especially egregious in the grand scheme of things. According to the company's research into P2P flows on its networks, only 6 or 7 percent of subscribers used P2P in a given week, only uploads were affected, 90 percent of P2P flows weren't even touched, and even users who were hit with TCP reset packets could "complete a P2P upload in less than one minute in 80 percent of cases."

But such traffic-specific profiling and flow throttling set the stage for ISPs to pick winners and losers on the 'Net, to do more than determine how wide someone's pipe would be—to control what they could do, and when. Thanks to the pressure from the proceeding, Comcast has already committed to protocol agnostic traffic management by the end of the year.

Will Canada follow suit?