Can the F.C.C. Enforce "Network Neutrality?"

Federal Communications Commission chairman Kevin Martin squared off against lawmakers Tuesday over whether his agency has the authority to punish Comcast over charges that it blocks certain kinds of internet traffic - a practice Martin said was more widespread than the company had previously acknowledged.

In testimony before the Senate Commerce Committee, Martin took his most critical stance yet of Comcast, the nation's largest cable company, saying the company appears to have blocked web traffic even at times when there was no network congestion.

"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," Martin told lawmakers.

Congress and federal regulators are looking into complaints by rivals and consumers that Comcast unfairly throttles some types of internet traffic, particularly videos from companies, like Vuze, that compete with Comcast's video-on-demand service.

The furor over Comcast's practices has revived debate over "network neutrality," a principle that would require network operators to treat all Web traffic equally.

Tuesday's Senate hearing came just days after a raucous, seven-hour public hearing at Stanford University in Palo Alto, California, which Comcast skipped. The F.C.C. convened that meeting after Comcast was discovered to have paid people off the street to take up space at an earlier hearing at Harvard University in Cambridge, Massachusetts.

Comcast issued a statement Tuesday reiterating its position that it "does not, has not and will not block any Web sites or online applications, including peer-to-peer services."

"We have acknowledged that we manage peer-to-peer traffic in a limited manner to minimize network congestion," Comcast spokeswoman Sena Fitzmaurice said. "While we believe this network management was a reasonable choice, we are now working with a variety of companies in the Internet community and confirm our March announcement that we will move to a protocol-agnostic network-management technique no later than Dec. 31, 2008."

But Martin seemed to contradict Comcast when he testified that some of the company's "traffic management" appeared to be unconnected to network congestion.

Referring to the systems that Comcast uses to manage traffic, Martin said, "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."

Martin said that there is no need for legislation proposed by Senators Olympia Snowe, a Maine Republican, and Byron Dorgan, a North Dakota Democrat, that would prohibit network operators from discriminating against certain types of traffic, and require that they to treat all web flows equally. Martin said the F.C.C. has all the authority it needs to punish Comcast.

Dorgan, joined by John Kerry, a Massachusetts Democrat, disagreed with Martin, with Kerry going so far as to say the commission would face lawsuits if it proceeds without new legislation from Congress.

"You believe you need authority to take action on these areas, and one of the biggest content providers says you don't have that authority, so shouldn't you be asking us to do something, in the event this is unclear and you spend the next three to four years in court?" Dorgan asked.

Martin responded by arguing that the Supreme Court's landmark 2005 "Brand X" ruling, which he said gives the F.C.C. the authority "to adopt any rules we deem necessary to adequately protect consumers' broadband rights."

Senate Republicans voiced opposition to new legislation, with Ted Stevens, an Alaska Republican saying that "intense regulation" of the internet would be "entirely unwarranted."

With the debate raging in the Senate, interests groups on both sides weighed in. Both sides used the specter of stifled innovation to make their case.

"Elevating the principle of mandatory net neutrality above the principles of investor ownership and wealth creation would drive investment away from vitally important infrastructure development," said Wayne Crews of the Competitive Enterprise Institute, a conservative think tank.

"The underlying premise of net neutrality is that infrastructure companies should not control content, but that it's perfectly acceptable for content companies, with the help of government regulation, to control infrastructure," Crews added. "The implications of entrenching this idea further in law are extremely serious."

But consumer groups said that without network neutrality guarantees, venture capitalists and entrepreneurs would be less likely to invest in new internet technologies. It is the open, non-discriminatory nature of the Web, they argue, that has led to the explosive growth and wealth creation in the internet.

"Comcast's vision of the internet, if allowed to succeed, will stifle innovation and send a signal that the United States will no longer be the leader in Internet technologies," said Markham Erickson of the Open Internet Coalition, which represents businesses that use the internet.

"Small technology entrepreneurs who have created millions of jobs and billions in new wealth for the U.S. economy will no longer see the Internet as a safe platform for development, and turn their talents to other areas," Erickson added.

by Sam Gustin