PALO ALTO, Calif. – A divided Federal Communications Commission on Thursday grappled further with the thorny issue of how to relieve increasing online congestion, disagreeing sharply over whether government regulations are needed.
The five-member commission met at Stanford University during a seven-hour meeting delving into "Net neutrality," the principle that all Internet traffic be treated equal.
It was the second such hearing the FCC has held this year, its interest on the subject piqued by formal complaints that Comcast Corp. is blocking certain of its customers who upload videos, music and other large data files from using its network during peak traffic times.
"We are facing these problems because of a failure of FCC policy," Stanford University law professor Lawrence Lessig told the commission. "The FCC failed to make it clear to the network owners that if they are building the Internet they need to build it neutrally."
FCC commissioners Michael Copps and Jonathan Adelstein called for the agency to strengthen its power to prevent Comcast and its competitors from unfairly discriminating against some customers.
But two others, Deborah Tate and Robert McDowell, warned against burdening the industry with additional, costly regulations.
FCC Chairman Kevin Martin argued that the FCC's current Internet policy is sufficient but said the FCC's policy needs to be enforced to guarantee that whatever actions Internet service providers are taking "is tailored to a legitimate purpose."
Martin is seen as a swing vote on the commission for his insistence that the FCC's Internet policy, which guarantees that consumers can access all the lawful content they desire, is enforceable.
Comcast officials and other service providers argue that the FCC's Internet policy is merely advisable and not a regulation.
Martin also said that Comcast and other companies should be permitted to manage their networks to ensure traffic flows smoothly, but that customers should be given notice.
"There must be adequate disclosures of the particular traffic management tools," Martin said. "Consumers must be fully informed of the exact nature of the service they are purchasing."
McDowell argued, however, that requiring such disclosures could expose companies to exposing trade secrets.
Copps called for strengthening the FCC's Internet policy to include an anti-discriminatory rule.
"These are evolving technologies, and sometimes the line between reasonable network management and outright discrimination can be less than crystal clear," Copps said.
"Now is the time for the FCC to add an enforceable principle of nondiscrimination to our Internet policy statement," Copps told an audience of about 400.
The FCC is formally investigating whether Comcast should be fined for blocking some subscribers from uploading files.
Comcast has acknowledged that it sometimes delays file-sharing traffic for subscribers as a way to keep Web traffic flowing for everyone.
After the FCC's initial hearing on the issue in February, the company said it plans to change the way it manages its network and points to recent partnership announcements with BitTorrent Inc. — a company founded by the inventor of a more efficient successor to file-sharing services such as Napster and KaZaa — and with file-sharing software developer Pando Networks.
Comcast officials, as well as executives with the company's largest competitors, declined the FCC's invitation to testify at the hearing Thursday.
"I do wish there were some network operators here to answer questions," McDowell said. "I am very disappointed that they aren't here."
Most of the 15 witnesses to scheduled to testified at the hearing favored barring companies from blocking subscriber usage, even in the name of controlling Internet traffic.
"It's the great firewall of China technique," said software engineer Robb Topolski, who first exposed Comcast's network management practices. "And it has not stopped. The behavior hasn't stopped."
But Rick Carnes, president of the Songwriters Guild of America, testified that he was disappointed that the technology at issue isn't more broadly applied by Internet service providers to weed out subscribers exchanging pirated music and video files.
"Stealing music is not a victimless crime," Carnes told the FCC. "I have seen it destroy the lives of my friends and colleagues."