Facing an investigation by the FCC for their traffic shaping practices, Comcast last week quietly changed their terms of service. While Comcast insisted to us the changes were an effort to make traffic shaping more clear to consumers, it's clear to us that the wording was changed to more directly mirror the FCC's policy statement on network neutrality, which allows all but a blockade of competing traffic as long as an ISP lawyer can justify the practice as "reasonable network management."

The word "reasonable" makes repeated appearances in the new TOS, which lacks any specifics on exactly how much monthly bandwidth consumption is too much. Comcast's use of Sandvine hardware to send forged TCP packets -- which throttles upstream p2p traffic for all Comcast users regardless of excessive use -- also isn't clearly illuminated in the new TOS, which justifies more than it explains.

Comcast yesterday filed a statement (pdf) with the FCC vigorously defending their traffic shaping practices. That defense makes the claim that "no valid conclusions about the effects of Comcast's network management practices could be drawn" from tests of Comcast's traffic shaping (including those by our users, the Associated Press and the EFF) because the tests "did not replicate how p2p protocols operate in the real world."

The EFF clearly showed in their recent report that Comcast could have chosen less draconian traffic shaping methods that incurred less collateral damage. Still, Comcast urges the FCC to determine that Comcast's particular brand of network management is reasonable under the definition in the FCC's policy statement on network neutrality.

Critical decisions should not be based on the demands of the vocal minority who make the most noise in public forums -Comcast

The company goes on to ask the FCC "to make it clear that it will not be drawn into second guessing the reasonable network management decisions that engineers and service providers must make on a daily -- and sometimes hourly -- basis to respond to a dynamic and ever-changing Internet." According to the company, such "critical decisions should not be based on the demands of the vocal minority who make the most noise in public forums."

All told, Comcast uses the word "reasonable" more than forty times in their statement to the FCC. Unlike the company's TOS, they do inform the FCC that the company uses "reset packets" to throttle upstream p2p traffic, though they don't mention specific hardware, and the company takes issue with use of the word "forged" to explain these packets:Indeed the defense is jam packed with vibrant new metaphors to justify Comcast's particular choice of network management. "One would not claim that the car is "blocked" or 'prevented' from entering the freeway," insists Comcast in their 80-page defense. "Rather, it is briefly delayed, then permitted onto the freeway in its turn while all other traffic is kept moving as expeditiously as possible."

The self-policing marketplace and blogosphere, combined with vigilant scrutiny from policymakers, provides an ample check on the reasonableness of such (network management) judgments. -Comcast

One other interesting excerpt spotted by IP Democracy, was Comcast's insistence that the FCC doesn't need to get involved because "The self-policing marketplace and blogosphere, combined with vigilant scrutiny from policymakers, provides an ample check on the reasonableness of such [network management] judgments."

Over the past few months the entire blogosphere and U.S. news corps have essentially called Comcast out for their tap-dancing around and distortion of the truth -- yet Comcast's only reaction to this firestorm was to have their lawyers beef up the company's TOS. Something tells me that the "blogosphere" isn't going to be much of a system of checks and balances. Something tells me the FCC isn't going to be, either.

As a side comment, we'll note that last November we reported that Cox was doing the exact same thing to p2p traffic (specifically eDonkey traffic), and the media response was completely non-existent. Why? In part because Cox clearly cites their monthly caps, and came forward quickly about the fact they they do throttle some p2p applications. That, and the press has the attention span of a walnut -- but that's another column.

Comcast's decision to hide the truth from their users, and their decision to play semantic pattycake with the press is a major reason why the company received so much attention. The debate is as much about transparency as it is about network neutrality. Traffic shaping is not national security. We continue to believe that customers should have full disclosure as to how a network is managed if they're to make smart purchasing decisions.

We'll let you further dissect Comcast's metaphor-packed defense, lest we get long winded and ornery. Will the FCC, who has a recent history of picking on cable operators, buy Comcast's defense? Do you think ISPs should be clear in informing potential customers as to precisely what kind of traffic shaping they're using to manage their networks? Does repeated use of a single word actually bend space/time and change reality?

Voice your opinion in the comment section below.