With recent reports indicating that some votes in the Comcast case are already in, FCC Commissioner Robert McDowell writes in the Washington Post that the FCC should rely upon private collaboration instead of punishing Comcast for violating its Network Neutrality policy.

Like a befuddled victim who doesn't understand how a judge could find my attacker as "Not Guilty," I stand dumbstruck. Comcast was caught red-handed, their weapon pointed directly at our very freedoms, specifically the freedom to connect to whomever we want to using the programs we choose!

Robert McDowell, a jurist on this case owing to his position as FCC commissioner, prefers collaboration between private industry and public entities that have defined how the Internet works for a long time. We all support open and free governance of the Internet. But anything that affects our global network ought to be done in the light of day, not in secret backroom deals between Sandvine and network operators. And while I agree with the Commissioner that engineers ought to solve engineering problems, they need enforcement bodies like the FCC to step in when U.S. providers act nefariously -- just as Comcast was caught doing.

What McDowell ignores is that it was a private collaboration in the form of an agreement between Sandvine and Comcast to sell Internet access and its associated bandwidth and then use secret technology to interrupt some of that that access and take back some of that bandwidth that it sold.

In November 2007, Free Press and Public Knowledge, with the support of several other industry groups and individuals, filed a formal complaint They charged that the cable provider was violating the FCC’s 2005 Policy Statement – principles protecting consumers’ unfettered access to the open Internet. In the ensuing testimony and evidence, the following were all alleged and proven beyond all reasonable doubt:

• Comcast's actions violated the FCC's policy that "consumers are entitled to access the lawful Internet content of their choice." In independent tests by myself, the Associated Press, and the Electronic Frontier Foundation (EFF), we demonstrated that if a unique file was available on certain peer-to-peer (P2P) network nodes located on Comcast's network, that Comcast users could not transfer the content. It was completely blocked. If the file was not unique to Comcast nodes, then Comcast's users could only freely access the content only from the non-Comcast sources.
  


• Comcast's actions violated the FCC's policy that "consumers are entitled to run applications and use services of their choice." I presented reproducible test cases and results that showed that Comcast was applying an Application-Layer (Layer-7) Deep Packet Inspection device to change the way that the application normally operates. In effect, Comcast was not allowing the application to run as it was designed to run; it secretly hid a device inside their network that changed the normal operations of the applications that I chose.
  


• Comcast's actions violated the FCC's policy that "consumers are entitled to connect their choice of legal devices that do not harm the network." Devices like the Vudu and Myka rely on the BitTorrent protocol in order to work, and both devices are certainly used to access legal content.
  


• Comcast's actions violated the FCC's policy that "consumers are entitled to competition among network providers, application and service providers, and content providers." Comcast was discriminating against several targeted peer-to-peer networks. The Associated Press reported that attempts to transfer the Bible over the P2P BitTorrent network were blocked, and Richard Bennett still demonstrates that attempts to transfer the Bible over a client-server architecture of a Web site are always successful. This proved that users do not enjoy the benefits of fair competition between P2P applications (such as BitTorrent, Vuze's Azureus, uTorrent, Gnutella, eMule, or Shareaza) and client applications (such as Internet Explorer, Mozilla Firefox, Opera).

Legal experts have weighed in and sustained the FCC's policy, that "the Commission has jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner."

The jurisdiction, the policy and the violations are clear. Left without legal or technical defense, Comcast has latched onto a footnote to the Policy Statement that allows for "reasonable network management." At least half of the trees killed arguing this case have been felled arguing this subscripted three-word exception. To prevent Comcast from grasping at this straw, I demonstrated that Comcast's management was not reasonable. The blocking was not confined to periods of congestion, but ran 24 hours a day, seven days a week; an assertion denied vehemently by Comcast but supported by tests ran by the Max Planck Institute and ultimately confessed. I showed that not only was it detectable and perceptible, it completely blocked my attempts to upload legal content to users over the Gnutella P2P network. The tests by the AP and EFF also showed that this blocking occurred even when the activity was so small and limited that couldn't possibly harm the network.

The prosecution put Comcast's pathetic trail of tales and shenanigans into the record, which ranged from outright denials of their scheme, to a vague and ultimately inaccurate reference to "reasonable management" that "delays," to diversionary and empty promises to work with the Internet community, to a quasi-admission finally obtained during the cross-examination: that Comcast uses a non-Standard regime that blocks P2P uploads regardless of congestion, that they still think that was reasonable action to take, that they plan to keep doing it for a while, or may switch to another non-Standard scheme with different side-effects still unknown, and that the judges (any judges) are powerless to stop them!

The facts are apparently all in, the closing arguments made. The facts, evidence and the law are clear. So, how can even one jurist find the defendant, Comcast Corporation, "Not Guilty?"

What else do we have to prove? What else does Commissioner McDowell think that Internet users must endure before justice can be served?

With a case so strong, shouldn't we be able to get a unanimous vote?

Robb Topolski

PS: "I did, I did" -- no, we all did. But we really owe a debt to Free Press and Public Knowledge for standing behind the Internet's users on this. Yeah, I did a little of this stuff, but they turned it into something that will make a difference.