Expert Opinion
FCC Hammers Comcast For Deception and Unreasonable Internet Practices
WASHINGTON, August 1 – The Federal Communication Commission’s enforcement action against Comcast can be seen either as a limited response to a company’s deceptive practices, or a sweeping new venture by the agency into regulating internet policy.
News Analysis
WASHINGTON, August 1 – The Federal Communication Commission’s enforcement action against Comcast can be seen either as a limited response to a company’s deceptive practices, or a sweeping new venture by the agency into regulating internet policy.
In ruling against Comcast on Friday, the agency ordered the company to “disclose the details of its discriminatory network management practices,” “submit a compliance plan” to end those practices by year-end, and “disclose to customers and the [FCC] the network management practices that will replace current practices.”
At issue in the decision was whether Comcast had engaged in “reasonable network management” practices when it delayed and effetively blocked access to users of BitTorrent, a peer-to-peer software program.
Although BitTorrent had already settled its complaints with Comcast, FCC Chairman Kevin Martin said that FCC action was necessary because the complaint had been brought by Free Press and Public Knowledge, two non-profit groups. The FCC did not impose a fine.
Martin said that he viewed the agency’s decision to punish the cable operator as a quasi-judicial matter: a “fact-intensive inquiry” against a specific company that it found to have “selectively block[ed]” peer-to-peer traffic.
That interpretation would make the FCC action more limited. A statement by AT&T Senior Vice President Jim Cicconi – that “the FCC decided to handle the matter on its own unique facts, setting a wise precedent for dealing with such complaints on a case-by-case basis” — supported that interpretation.
On the other hand, Martin acknowledged that the order against Comcast did set a precedent for future action against other network operators. And he said that the agency had authority to hear and resolve any such complaints of network neutrality violations.
Net neutrality generally refers to legislation or regulation that would bar Bell companies and cable operators from expediting the internet delivery of favored business partners’ content – or blocking the content of rivals. The issue has become a political hot potato in the general election.
The ability for the FCC to become the venue for such future complaints would suggest a more sweeping interpretation of the action. On a Friday conference call, pro-Net neutrality advocates pushed that view, calling it a “bellweather case” and or, as Public Knowledge President Gigi Sohn said, “a landmark decision.”
A Net neutrality critic at the Progress and Freedom Foundation (PFF), a free-market think tank, called the decision “quite intrusive.”
In asserting that it had jurisdiction over Comcast and its practices, the FCC declared that it will “exercise its authority to oversee federal Internet policy in adjudicating this and other disputes regarding discriminatory network management practices.”
“In second-guessing reasonable network management techniques (with no notice or guidelines in place) that benefit the overwhelming number of broadband subscribers in America, the FCC has inexplicably elevated the interests of a few bandwidth hogs over everyone else,” said Klye McSlarrow, CEO of the National Cable and Telecommunications Association.
In a statement, a Comcast spokeswoman said the company was grateful that the commission did not impose a fine, but raised “significant due process concerns” with the decision.
The Republican Martin teamed up with the commission’s two Democrats in favoring an order against Comcast. The other two Republicans dissented, and signaled the concern that the FCC would become a forum for technical engineering disputes that it was not competent to resolve.
All three Republicans, including the dissenting Deborah Taylor Tate and Robert McDowell, emphasized the need for greater transparency about network and speed tier management by carriers.
“I must also stress the importance of disclosure and transparency by all internet providers,” said Tate. “Consumers must be able to know what they are paying for and getting. Comcast must do better.”
Of the two ways to look at the decision — sweeping or limited — Martin’s own statements emphasized the narrower reading of the FCC’s action. He and the agency emphasized consumer-focused concerns raised by Comcast’s behavior.
“Would you be OK with the post office opening your mail, deciding they didn’t want to bother delivering it, and hiding that fact by sending it back to your stamped ‘address unknown – return to sender?’” Martin asked. “That is exactly what Comcast was doing with their subscribers’ internet traffic.”
The six “findings” articulated by the Friday speech at the agency dealt extensively with the allegedly invasive, intrusive and deceptive aspects of Comcast’s “deep packet inspection.” (See findings here.)
The fact that no fine was levied against Comcast was a sign, Martin said in an interview, of the agency’s cautious approach.
Martin also argued that the FCC’s action was necessary to forstall legislation requiring Net neutrality. “Failure to act here” — in a case where Comcast has exhibited so much bad faith, Martin said — “would have reasonably led to the conclusion that new legislation and rules are necessary.”
Attempting to further restrict the scope of the decision, Martin said that the order does not address pricing, economic regulation, the requirement that carriers share their communications wires, or whether or not carriers may prioritize a particular class of software.
For example, cable operators could prioritize internet telephone service, so long as they didn’t discriminate against a competitor’s service at their expense of their own service.
By contrast, the pro- and anti-Net neutrality advocates emphasized the more seminal aspects of Friday’s decision.
“This is the Bush administration FCC saying that the FCC has the power to protect internet users,” said Public Knowledge’s Sohn, calling it “the most significant decision for the public interest” in 20 years.
Marvin Ammori, general counsel at Free Press, called the decision “bellwether case legally” because the FCC ordered Comcast not only to stop its deceptive practices, but to stop its unreasonable practices, he said.
“It is sweeping in that it is a process and a procedure that [the FCC] will follow” in future cases, he said.
Barbara Esbin, senior fellow at PFF, agreed that the decision was sweeping, but disagreed that it was a good outcome. “If the commission is correct, they have taken a very small step in a narrowly focused case against one operator,” she said.
“I don’t agree,” Esbin continued. “I think this is quite intrusive, and will create an unacceptable degree of uncertainty among companies and network engineers as to what is and is not permissible, and will require the FCC to continually make decisions on engineering practices in real time.”
Documents and Articles Referenced by this Article:
- Comcast and Freedom to Obtain Service Plan Information, blog post on DrewClark.com, November 6, 2007
- Democratic Party Debate Over Net Neutrality Over, Advocates Declare (BroadbandCensus.com, July 29)
- Combatants in Net Neutrality Fight Take Aim at Each Other, FCC Chief and Comcast (BroadbandCensus.com, July 31)
- FCC’s ‘Findings’ in Order Against Comcast’s Network Management Practices (Broadband Census, August 1)
Expert Opinion
David Strauss: How State Broadband Offices Will Score BEAD Applications
Fiber, coax and fixed wireless network plans dependent on BEAD funding demand scrutiny.

Given the vital ways in which access to broadband enables America, adequate Internet for all is a necessary and overdue undertaking. To help close the digital divide, the Infrastructure Investment and Jobs Act includes $42.5 billion in Broadband Equity, Access and Deployment funding for the last mile. Add to this the estimated level of subgrantee matching funds and the total last mile figure rises to $64 billon, according to the BEAD Funding Allocation and Project Award Framework from ACA Connects and Cartesian.
The federal funds will be disbursed by the Department of Commerce’s National Telecommunications and Information Administration to the State Broadband Offices who will then award subgrants to service providers. On June 30, each state will find out their allocation amount. By 2024, the states will establish a competitive subgrantee process to start selecting applicants and distributing funds.
A critical element of the selection process is the methodology for scoring the technical merits of each subgrantee and their proposal. Specific assessment criteria to be used by each state are not yet set. However, the subgrantee’s network must be built to meet these key performance and technical requirements:
- Speeds of at least 100 Megabits per second (Mbps) download and 20 Mbps upload
- Latency low enough for “reasonably foreseeable, real-time interactive applications”
- No more than 48 hours of outage a year
- Regular conduit access points for fiber projects
- Begin providing service within four years of subgrant date
What level of scrutiny will each state apply in evaluating the technical merits of the applicants and their plans?
Based on our conversations with a number of state broadband leaders, the answers could be as varied as the number of states. For example, some states intend to rigorously judge each applicant’s technical capability, network design and project readiness. In contrast, another state believes that a deep upfront assessment is not needed because the service provider will not receive funds until certain operational milestones are met. Upon completion, an audit of the network’s performance could be implemented.
We, at Broadband Success Partners, are a bit biased about the level of technical scrutiny we think the states should apply. Having assessed over 50 operating and planned networks for private sector clients, we appreciate the importance of a thorough technical assessment. Our network analyses, management interviews and physical inspections have yielded a valuable number of dos and don’ts. By category, below are some of the critical issues we’ve identified.
Network Planning & Design
- Inadequate architecture, lacking needed redundancy
- Insufficient network as-built diagrams and documentation
- Limited available fiber with many segments lacking spares
Network Construction
- Unprotected, single leased circuit connecting cities to network backbone
- Limited daisy-chained bandwidth paths on backhaul network
- Lack of aerial slack storage, increasing repair time and complexity
Network Management & Performance
- Significant optical ground wire plant, increasing potential maintenance cost
- Internet circuit nearing capacity
- Insufficient IPv4 address inventory for planned growth
Equipment
- Obsolete passive optical network equipment
- Risky use of indoor optical network terminals in outdoor enclosures
- Sloppy, untraceable wiring
Technical Service / Network Operations Center
- Technical staff too lean
- High labor rate for fiber placement
- Insufficient NOC functionality
While the problems we uncover do not always raise to the level of a red flag, it happens often enough to justify this exercise. Our clients who invest their own capital in these networks certainly think so. The same should hold true for networks funded with taxpayer money. Fiber, coax and fixed wireless network plans dependent on BEAD funding demand serious scrutiny.
David Strauss is a Principal and Co-founder of Broadband Success Partners, the leading broadband consulting firm focused exclusively on network evaluation and technical due diligence. This piece is exclusive to Broadband Breakfast.
Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.
Expert Opinion
Raul Katz: Can Investments in Robust Broadband Help States Limit the Downside of Recession?
If managed effectively, the BEAD program could play a key role in allowing our economy to weather the storms ahead.

The United States economy is still undergoing persistent inflation rates, high interest rates, and stock market volatility. According to a Wall Street Journal survey conducted in January, economists put the probability of a recession at 61 percent.
Simultaneously, we are also on the eve of the largest federal broadband funding distribution in American history. All 50 U.S. states have begun formulating plans to help connect their communities through the $42.5 billion Broadband Equity, Access and Deployment Program, and its funds are expected to be distributed within months. That, coupled with the Affordable Connectivity Program and other initiatives designed to subsidize broadband access, will play a critical role in connecting every American to the internet. This once-in-a-generation investment in building more robust and resilient broadband networks can help states weather the coming economic storm. To learn how, we simply need to look back to March 2020.
When the COVID-19 pandemic initially cratered the economy, states that had a higher rate of fixed broadband penetration were more insulated from its disruptive effects. Simply put, better-connected states had more resilient economies according to a study I authored for Network:On. In a separate study, by using an economic growth model that accounts for the role fixed broadband plays in mitigating the societal losses resulting from the pandemic, I also found that more connected societies exhibit higher economic resiliency during a pandemic-induced disruption.
In the study conducted for Network:On, we documented that U.S. states with higher broadband adoption rates were able to counteract a larger portion of the economic losses caused by the pandemic than states with lower broadband adoption rates. The states most adversely affected by the pandemic, such as Arkansas and Mississippi, were those exhibiting lower broadband penetration rates. Conversely, states with higher broadband penetration, such as Delaware and New Jersey, were able to mitigate a large portion of losses, as connectivity levels allowed for important parts of the economy to continue functioning during lockdowns.
Nationally, if the entire U.S. had penetration figures equal to those of the more connected states during the pandemic, the GDP would have contracted only one percent— a much softer recession than the actual 2.2 percent. These findings show that investments in closing the digital divide and ensuring everyone can access a high-speed Internet connection are critical to building economic resilience.
Today, wide penetration rate disparities exist between states — such as Delaware’s rate of 91.4 percent compared to Arkansas’ rate of 39.7 percent. Because of this, public authorities should focus on creating policy frameworks that allow operators to spur infrastructure deployments and find the optimal technological mixes to deliver the highest performance to users.
Broadband access matters. It doesn’t exist in a vacuum and is crucial to an area’s economic health. As state broadband offices around the country prepare to deploy BEAD funding, they must remember that broadband access and adoption are imperative to building economic resiliency.
Beyond my own study, a review of the research examining the economic impact of digital technologies over the past two decades confirms that telecommunications and broadband positively impact economic growth, employment, and productivity. This reinforces how consequential these government investments in broadband infrastructure and adoption are to protecting America’s economic health.
The BEAD program still has its challenges, but if managed effectively, it could play a key role in allowing our economy to weather the storms ahead.
Dr. Raul Katz is the president at Telecom Advisory Services LLC and author of the study: The Role of Robust Broadband Infrastructure in Building Economic Resiliency During the COVID-19 Pandemic. This piece is exclusive to Broadband Breakfast.
Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.
Expert Opinion
Kate Forscey: For the FTC to Rein in Big Tech, Slow and Steady Wins the Race
Going after Big Tech with marquee cases may make headlines, but those failures make big headlines too.

Recognizing the outsize power Big Tech has in the tech marketplace and throughout our daily lives, the Biden Federal Trade Commission, helmed by Chair Lina Khan, has made big headlines for pursuing cases and regulatory changes in an attempt to restore competitive balance to the tech ecosystem.
Khan started off with a bang. She, along with the Department of Justice’s Antitrust division, sought to modernize the merger guidelines that would provide better guidance for courts and scholars to challenge Big Tech’s rampant consolidation of the tech sector. Moreover, she has initiated a proceeding that will evaluate the anticompetitive effects of overly broad non-competes; some of which have the effect of entrapping valued coders and engineers into these large tech firms indefinitely, preventing smaller competitors from availing themselves to their expertise.
But rather than complete these efforts in an incremental, potentially bipartisan manner, the agency has continued to set its sights higher and higher. Let’s just say the FTC has had a tough go at implementing this strategy.
For example, as part of Facebook’s pivot to the metaverse, it planned to merge with Within Unlimited—a virtual reality fitness start-up. Fearing a loss of “potential future competition,” the FTC just expended an enormous amount of its resources to enjoin the merger, not only going to court but starting a concurrent proceeding with one of the agency’s administrative judges. The result? A federal district court outright denied the requested injunction, and now the FTC has abandoned its administrative case too.
And it looks like the FTC is going for a repeat with its challenge to Microsoft’s merger with Activision, the maker of World of Warcraft and Candy Crush. Strangely enough, the fear here is creation of future potential competition, specifically Microsoft and Xbox gaining a foothold against its larger gaming competitors like Sony and Tencent, a Chinese multinational conglomerate.
Even more bizarrely, the agency appears to ignore that the merger would open up more competition in the mobile gaming market—largely controlled by the Apple and Google app stores—by bringing Activision titles, like Call of Duty, to every mobile device. In short, it’s looking like the FTC will be 0-for-2 by the end of the year.
Agency should take incremental steps, not tackle unwinnable battles
Look, reining in Big Tech is a laudable goal. However, it may be time for Khan to turn to tried-and-true ways to accomplish that goal with incremental, ideally bipartisan steps, instead of focusing the agency’s limited resources on unwinnable epic battles.
The first thing Khan should do is finish what’s already on the agency’s plate.
For one, Khan should complete modernizing the merger guidelines. The current guidelines were written before Big Tech was even a thing and without an understanding of today’s technology and modern markets. New guidelines would provide a stable framework for courts, academia, and the antitrust agencies to analyze anticompetitive practices in a more productive manner as cases crop up going forward.
For another, the FTC should conclude its privacy investigation of prominent social media and video streaming companies. More than two years ago, the Commission launched an investigation into the privacy practices of nine social media and video streaming companies — including TikTok, Facebook, Twitter, YouTube and Amazon. And we have yet to see any results, even though all the tech companies mandated submissions are presumably in.
For yet another, the FTC should reexamine pending proceedings to take a more targeted approach that has a better shot of passing legal muster. Take the FTC’s proceeding to ban non-compete clauses. Whatever the general merits, it’s politically divisive, and legally questionable, to think the FTC could really ban even executives being held to a non-compete clause.
In contrast, a really bright idea would be to address Big Tech dominance by going after noncompete clauses for mid-level engineers and workers. It used to be that a talented mid-level engineer could go cut her teeth working a few years at a place like Google, getting experience there and then moving on to a start-up to help them build their company up.
This allows smaller companies to potentially compete with the big guys and ultimately create a more competitive marketplace in a given space, whether that’s search or social or whatever. But the goliath groupers don’t like that idea – Big Tech likes its dominance – so nowadays they lock employees into noncompete clauses that prevent them from any sort of outward mobility. The FTC could change that with a targeted and incremental rule—one that could be bipartisan and legally sustainable.
Going after Big Tech with marquee cases may make headlines, but those failures make big headlines too. To do this and do this right – in a way that doesn’t create legal conundrums down the road – the Commission might want to recognize that incremental, bipartisan victories have the greatest staying power. If you want to have a lasting impact, take it from Aesop: slow and steady wins the race.
Kate Forscey is a contributing fellow for the Digital Progress Institute and principal and founder of KRF Strategies LLC. She has served as senior technology policy advisor for Congresswoman Anna G. Eshoo and policy counsel at Public Knowledge. This piece is exclusive to Broadband Breakfast.
Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.
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