The ghost of Col. Nathan Jessep hovered over the proceedings at Stanford University late last week (April 17) as the Federal Communications Commission (FCC) wound up its second hearing on the bad behavior of network owners.

Jessep was most famously played by Jack Nicholson in the movie, A Few Good Men. At the movie's penultimate moment, the Marine colonel barks out from the witness chair in a courtroom to Lt. Daniel Kaffee (Tom Cruise), who says he wants the truth - "You can't handle the truth."

The question now for the FCC is the same - can the Commission handle the truth? Tomorrow (April 22), the Senate Commerce Committee takes up the same topic, although without the technical expertise present at the FCC hearing. We'll see how their response measures up.

All day, the Commission was confronted with what, to some of the commissioners, were definitely uncomfortable, even inconvenient, truths about how networks are used and abused. These truths ran smack into the rhetoric about the "market" and the need for private sector solutions, even as speaker after speaker on two panels said that there was evidence Comcast continues to degrade peer-to-peer traffic, that Cox is doing it also and that the techniques used by the cable companies are not acceptable to the vast majority of Internet network engineers.

Robb Topolski, the network engineer whose love for barber shop quartet music led him to track the original Comcast throttling of peer-to-peer traffic at all hours of day and night, told the Commission that despite the headlines about Comcast and BitTorrent coming to an agreement, "the [throttling] situation continues around the clock today. It has not stopped. It's happening right now." Comcast's use of "reset flags" are "not a part of reasonable network management and "are not accepted by anyone in the standards community." Topolski said he performed the same network analysis on the Cox cable network and found the same behavior. ( Topolski wasn't the only one arguing that the Comcast throttling methods weren't standard behavior, despite attempts to soften the testimony. Stanford Law Professor Barbara van Schewick told FCC Commissioner Deborah Taylor Tate the same thing during the second panel.)

It is very clear that "this is blocking," Carnegie Mellon University Professor Jon Peha told FCC Chairman Kevin Martin, in response to Martin's question whether Comcast was correct to characterize its activities only as delaying traffic.

The knowledge of the experts is limited to their experience doing the network testing, and that leads to a larger problem, witnesses told the FCC. Stanford Professor Larry Lessig and Media Access Project's Harold Feld each said pointed out problems in seeing the big picture of what is going on with Comcast. "The most outrageous thing about this story is that you can't get the facts straight," Lessig said, noting that the company is "misrepresenting what is going on." Feld noted the convenient relationship between announcements of Comcast agreements with P2P companies to the dates of FCC hearings and said it would only take 25 or 30 more hearings to clear up the issue.

There was one other bit of inconvenience on a related topic. Jason Devitt, chief executive of Skydeck, told the Commission how he is hampered in what he can do in the wireless world because of restrictions imposed by big carriers. Venture capitalists are reluctant to invest in wireless applications because of the situation, Devitt said. His view of the world is in direct contradiction to the view that Martin expressed to cheering throngs at the CTIA show, when the FCC chairman said he would circulate an order dismissing a petition by Skype calling for any devices to be attached to the wireless network.

It's evident that the "market" doesn't exist as some FCC commissioners wish it existed, and that Comcast's attempts to write a get out of jail free card are coming a little late. Comcast and other carriers caught some criticism, including from FCC Commissioner Robert McDowell, for not showing up. That was probably a good call on the company's part. There wouldn't have been much they could say to defend themselves. It's much easier to do that in the confines of FCC hq in meetings with staff and commissioners than in public with a real group of experts firing at you.

In the face of all the evidence compiled at this hearing and the one in Cambridge in February, the question is what the FCC will do. How will it handle the truth? It could duck behind some sort of "disclosure" regulation. But even if a customer knows that his P2P traffic is being throttled, what good is that? The truth of this situation calls for something more, but it's not likely that the Commission will take it on.

There are senators whose belief in the "market" resonates as strongly as does that of some FCC commissioners. When the Senate committee hears some of the same evidence, from Lessig and others, perhaps the members will grasp the reality and send a message to the FCC that even though the truth hurts, wrecking the Internet would hurt more.