“It’s very obvious that we are pushing the limits of the amount of capacity we have,” Jacobs said, adding that network neutrality regulations should not restrict operators’ ability to manage their networks.

“Operators should have the ability to say: ‘let’s be fair, this person’s moved a lot of data, this person’s used a little’, if they’re paying the same amount, then the person who’s used less will get more access….We are on the side of, yes, you have to be able to do something to manage your network, but it’s not the right thing to go in and say one service or another is OK.”

In other words, Qualcomm (QCOM) favors usage-based throttling. In theory, this should ensure that all customers get their fair share of bandwidth every hour of the day. In practice, however, it has meant something else entirely. So the question remains: If data traffic is to be shaped (and I am not saying that it should be), who will determine how it will be shaped and, more importantly, who can be trusted to make that determination fairly?

Jacobs’s remarks come a day after Federal Communications Commission Chairman Julius Genachowski reiterated the Obama administration’s call for network neutrality.

The Federal Communications Commission isn’t buying Comcast’s (CMCSA) argument that throttling or degrading the performance of the peer-to-peer file-sharing service BitTorrent on its broadband network is a necessary traffic-management technique.

Speaking at the Stanford Law School Center for Internet and Society, FCC Chairman Kevin Martin said he’s considering taking action against the cable operator for violating the agency’s network-neutrality principles. Seems Martin was troubled by Comcast’s dissembling around the BitTorrent issue, not to mention its efforts to pack an FCC hearing on Net neutrality with its own employees.

“A hallmark of what should be seen as a reasonable business practice is certainly whether or not the people engaging in that practice are willing to describe it publicly,” said Martin, adding that the incident offered the commission a good opportunity to establish a precedent for future cases of this kind. “I have said in the past the commission is ready, willing and able to take action on individual complaints,” he said. “I think that is what we are going to end up doing, and I think that will end up setting an important precedent going forward: that we are willing to address individual complaints when they come in.”

The moves come at a time of growing institutional shareholder dissatisfaction with Comcast (CMCSA). The cable operator’s shares are down nearly 40% in the past year and off by 25% since it gave disappointing 2007 financial guidance in the fall. Suffice it to say, the company’s shareholders are not happy. In a Jan. 14 letter to Comcast, investment firm Chieftain Capital Management accused management of strategic missteps and called CEO Brian (son of Ralph) Roberts’s stewardship of the company over the past decade a Comcastrophe. “The management of this company and supervision by its board have been a ‘Comcastrophe’ for shareholders over the past decade,” Chieftain wrote. “We want and deserve the best CEO Comcast’s board of directors can find–and, based on his record, Brian Roberts is not it.”

Will the concessions Comcast has made to its shareholders silence calls for Roberts’s head? Perhaps. It’s tough to shout epithets at management when the company’s just posted a better-than-expected 54% jump in fourth-quarter net income and announced plans for its first dividend in nearly a decade.