Is Comcast Discriminating Against VoIP Providers?

After a year of back and forth over Comcast's network management practices, the cable provider is now under fire for allegedly giving priority to its own IP-based digital phone service over that of competing VoIP providers.

The Federal Communications Commission on Sunday penned a letter to Comcast asking why its updated network management policy says that heavy bandwidth users might experience "choppy" VoIP communications on competitors like Vonage or Skype, but not necessarily on Comcast's own IP-based Digital Voice offering.

"We seek clarification with respect to an apparent discrepancy between Comcast's [September 19] filing and its actual or advertised practices," Dana Shaffer, chief of the FCC's wireline competition bureau, and Matthew Berry, FCC general counsel, wrote in a letter to Comcast. "Comcast states that [a bandwidth hog] may find that his 'VoIP call sounds choppy' [but] draws no distinction between Comcast's VoIP offering and those offered by its competitors."

The Comcast Web site says that Comcast Digital Voice is a separate, facilities-based IP phone service that is not affected by Comcast's new network management techniques. It would appear, then, that Comcast considers its Digital Voice offering a telephone service, not an Internet service, according to the FCC. If so, Comcast should be paying the same fees incurred by traditional phone providers.

The FCC requests that "Comcast explain any reason the commission should not treat Comcast's VoIP offering as a telecommunications service – a service subject, among other things, to the same intercarrier compensation obligations applicable to other facilities-based telecommunications carriers," Shaffer and Berry wrote. "We understand that Comcast is not yet complying with such intercarrier compensation obligations."

Comcast first came under fire for its network management policies in 2007, when customers complained about having their service cut off for excessive use but could not get a straight answer from Comcast about its bandwidth caps.

Later in the year, Comcast was accused of blocking access to P2P sites like BitTorrent. Comcast admitted to delaying traffic on file-sharing sites at peak times, but denied ever blocking access. At the behest of D.C.-based interest group Free Press, the FCC opened in an investigation.

In the interim, Comcast came to an agreement with BitTorrent under which Comcast agreed to switch to a protocol-agnostic system by the end of 2008. Nonetheless, the FCC in August handed down an enforcement action that required Comcast to be more transparent about its network management practices.

Comcast appealed the decision, but still complied – submitting a detailed network management policy on September 19, switching to a protocol agnostic system by the end of the December, and implementing a 250GB monthly cap for residential broadband users.

That detailed network management policy included guidelines for how Comcast would identify bandwidth hogs and temporarily slow their access to services, if necessary.

"During times of actual network congestion, when [a bandwidth hog's] traffic might be delayed, there are a variety of effects … [like a] webpage loads sluggishly, a peer-to-peer upload takes somewhat longer to complete, or a VoIP call sounds choppy," according to Comcast's Sept. 19 filing. "Of course, the same thing could happen to the customers on a port that is congested in the absence of any congestion management; the difference here is that the effects of any such delays are shifted toward those who have been placing the greatest burden on the network, instead of being distributed randomly among the users of that port without regard to their consumption levels."

The FCC wants to know why Comcast did not mention the different effects its network management policy would have on Comcast Digital Voice vs. other VoIP providers. The commission also wants a detailed explanation as to how Comcast Digital Voice can be considered facilities-based, how it uses Comcast's broadband facilities, and how it affects the network differently from other VoIP services.

The FCC has requested that Comcast respond no later than January 30.

Comcast did not immediately respond to a request for comment.

Ben Scott, policy director of Free Press, said in a statement that the letter is a "positive sign that the FCC's Comcast decision was not a one-and-done action on Net Neutrality. An open Internet cannot tolerate arbitrary interference from Internet service providers. Congress and the FCC must close any legal loopholes that permit anti-competitive behavior to thrive."

Chairman Kevin Martin, who spearheaded the Comcast investigation, will step down Tuesday to make way for President-elect Barack Obama's choice for FCC chief – rumored to be former IAC/InterActive Corp. executive Julius Genachowski.