Both consumer advocates and phone industry sock puppets have urged the FCC to dig into Comcast's forging of TCP packets to throttle upstream p2p applications. One of our regular forum users was the first to discover the practice earlier this year, after which an Associated Press report created an Internet firestorm. Comcast found itself in serious PR hot water after groups like the EFF subsequently showed how the practice sometimes interferes with other Internet traffic.

Among the groups urging the FCC to act were the Free Press, the Consumer Federation of America, the Consumers Union (publishers of Consumer Reports), the Media Access Project, Public Knowledge and professors at Yale, Harvard and Stanford law schools. In a complaint (pdf) filed by Free Press, the group asked the FCC to penalize Comcast to the tune of $195,000 per subscriber.

Yeah that's not happening, but yesterday FCC chief Kevin Martin told attendees at CES that the agency will at least take a look at Comcast's practices. "Sure, we're going to investigate and make sure that no consumer is going to be blocked," Martin told conference goers. "The question is going to arise: Are they reasonable network practices? When they have reasonable network practices, they should disclose those and make those public."

Martin's choice of words is telling. If you're a network neutrality supporter eager to see someone clamp down on application throttling, you shouldn't hold your breath waiting for the FCC. The policy statement (pdf) that guides the FCC's hand in matters of network neutrality is not law, and is intentionally vague enough to allow providers to get away with anything short of an outright traffic blockade.

ISP lawyers can effectively argue that all forms of application throttling constitute "reasonable network management." In Comcast's dealings with the press, they've been very aware of these legal semantics, stating that the company is simply delaying traffic, not blocking it -- and for the betterment of the Comcast network.

The interesting part of Martin's statement is his insistence that such practices be made public. Comcast has been painfully mysterious about the particulars of their traffic shaping practices, refusing to disclose even which hardware their using (though we know it's Sandvine gear). They also boot high-consumption customers if they cross invisible monthly download limits the carrier does not share with customers. In our conversations with the company, they don't even acknowledge such caps exist.

In contrast, cable operator Cox also employs monthly caps and throttles upstream p2p traffic, but has been rather forthcoming about the practices. In a broadband industry where ISPs are throttling BitTorrent traffic, imposing mystery caps and now contemplating piracy filters, it would be beneficial for consumers if all of these practices were clearly outlined, allowing them to make intelligent service comparisons.

But it's highly unlikely that Kevin Martin will be the man to force ISPs to come clean.

While it's true that Martin has gained a reputation for being an enemy of the cable industry, it's unlikely that he'll take any serious action against Comcast. Martin already knows that Comcast's actions don't violate his agency's own, intentionally wimpy guidelines. It's also unlikely he'll pass new regulation forcing carriers to reveal network practices, because it would upset his friends at AT&T and Verizon.

The end result? The FCC will likely issue a small fine and a tersely worded press release that suggests that Comcast come clean about their traffic shaping -- and include at least some specifics somewhere in the company's jungle of fine print.

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