Political plans

WASHINGTON— The studios’ anti-piracy agenda here has begun to run into a political and regulatory headwind that could jeopardize their hopes of persuading Internet service providers and other network operators to crack down on unchecked file-sharing.

Last week marked the close of the public comment period in the Federal Communications Commission’s investigation of broadband network management practices triggered by revelations last year that Comcast has been interfering with BitTorrent traffic on its high-speed Internet service.

In an 80-page filing with the commission, Comcast argues that its “throttling” of bandwidth-intensive applications during periods of peak demand is necessary in order to maintain a high quality of service for the majority of its users. Given the realities of finite capacity and shared networks, Comcast insists, network operators have no choice but try to balance the needs of all their users.

The fact that it targets BitTorrent traffic, Comcast says, simply reflects the fact that a relatively small number of BitTorrent users consume a disproportionately large amount of bandwidth because of the nature of the application.

“An unmanaged network simply means that users who make disproportionately resource-intensive demands on the network can crowd out fellow users,” the company argues in its brief. “An unmanaged approach would adversely affect far more users than the few currently affected by commonly-used network management technologies. That is why all network providers must manage bandwidth in some manner.”

Critics of Comcast, however, argue that it is singling out BitTorrent because torrent technology represents a long-term competitive threat to cable operators’ video delivery business.

“What Comcast is really doing is specifically squashing new innovative Internet video services that compete with their own online and video-on-demand offerings,” consumer advocacy group Free Press argues. “Comcast is looking at a future where consumers can access millions of channels online without the cable company’s permission, and doesn’t like it.”

If you ask the studios, they’ll tell you they have no dog in this fight. But that doesn’t make them disinterested observers.

At least one studio, NBC Universal, has held ex parte talks with three of the five FCC commissioners to urge them not to do anything in the Comcast case that could prevent ISPs in the future from implementing content filtering technology—including the targeting of specific applications.

The MPAA filed similar ex parte comments with the commission last year.

NBC Universal later followed with formal comments urging the commission to recognize that “sensible network management practices are an essential component,” to fighting online piracy.

Even if the FCC doesn’t do anything in the Comcast case to upset studio plans for network filtering, Congress could still play spoiler.

On Wednesday, Reps. Ed Markey (D-MA) and Chip Pickering (R-MS) introduced the Internet Freedom Protection Act (H.R. 5353).

Among other things, the bill would declare it “the policy of the United States,” to “maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators,” and to adopt “baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.’’

That sure sounds a lot like a ban on what Comcast is doing and what the studios would like other ISPs to do.

In an election year, the fate of any piece of legislation is unpredictable. But the Markey bill is certainly not the direction the studios want the wind to be blowing on Capitol Hill.

Get more of Paul Sweeting's analysis here.