Preemptive strike

As Dr. Johnson famously noted, there’s nothing like the prospect of an imminent hanging to concentrate the mind.

So it was with Comcast and BitTorrent this week, as they struck an agreement to develop new network management practices that don’t involve throttling BitTorrent traffic. Although the two sides did their best to portray the surprise announcement as merely the culmination of long consultations, it’s hard to believe that the prospect of imminent regulatory intervention didn’t help encourage the rapprochement.

The Federal Communications Commission has been investigating Comcast’s network management practices and was expected to issue a verdict within a few months. If Comcast’s BitTorrent throttling were found to be in violation of the FCC’s Net neutrality policy, it could face sanctions or, perhaps worse from Comcast’s point of view, be subject to new regulations governing what it can and cannot do to shape traffic on its network.

Whether the agreement will actually resolve anything, however, was not immediately clear.

Comcast, the nation’s largest Internet service provider, is clearly hoping it will be enough to derail the FCC investigation. But FCC chairman Kevin Martin, who is regarded in telecom regulatory circles as preternaturally hostile toward Comcast, reacted skeptically to the announcement.

“I hope that the negotiations to which Comcast commits today will result in a solution that preserves consumers’ ability to access any lawful Internet content and applications of their choice,” Martin said in a statement. “I am concerned, though, that Comcast has not made clear when they will stop this discriminatory practice,” he said. “It appears that this practice will continue throughout the country until the end of the year and, in some markets, even longer.”

Comcast said in its announcement that it would implement its new system by the end of 2008.

Some of the public interest groups that filed the original complaints against Comcast with the FCC—and who have been spoiling for a Net neutrality showdown—urged the agency to press on.

“We applaud industry discussions and collaborations, but neither of these developments has any bearing on the complaint and petitions pending before the Federal Communications Commission (FCC) on what rights users have on the Internet,” Public Knowledge president Gigi Sohn said in a statement. “They are irrelevant.”

Martin’s fellow FCC commissioner Robert McDowell, however, seemed eager to drop the matter.

“I am delighted to learn that BitTorrent and Comcast have reached a resolution to their dispute,” McDowell said. “The private sector is the best forum to resolve such disputes. Today’s announcement obviates the need for any further government intrusion into this matter.”

Perhaps the aspect of the controversy left most glaringly unresolved by this week’s announcement is where it leaves the movie studios.

Initially, the studios stayed out of the Net neutrality debate. Later, after realizing that government mandated neutrality might prevent ISPs from implementing the sort of content filtering systems Hollywood was urging on them, the studios began to weigh in on behalf of discriminatory network management practices.

The studios themselves seemed uncertain as to how the detente between Comcast and BitTorrent would impact their filtering plans.

Motion Picture Assn. of America CEO Dan Glickman issued a statement calling the agreement, “exactly the kind of industry cooperation that is urgently needed to address the problem of online piracy.”

How, exactly, absent some other shoe we haven’t heard drop yet, improved BitTorrent download speeds will do anything to resolve “the problem of online piracy,” was unclear, however.

Asked what Glickman might be referring to, BitTorrent president Ashwin Navin said, “I’m not quite sure.”

That makes two of us.