Comcast Lawsuit Questions FCC Right to Enforce Net Neutrality

[qi:105] Comcast has filed its appeal of an FCC decision issued last August that censured the cable company for blocking P2P files, arguing that the commission doesn’t have the authority to impose the broadband principles that define network neutrality in the U.S. absent a federal law or a full public hearing to make those principles binding as regulatory policy. Indeed, Comcast’s appeal will test the FCC’s ability to enforce network neutrality without either of those things.

Comcast’s intent to appeal the FCC’s ruling was announced last September, but initial briefs, which it filed July 27, are just now hitting the courts. Comcast initially got into trouble in October 2007, after an Associated Press investigation revealed the company was forging packets that would cause BitTorrent connections of some users to drop and failing to inform them of the practice — a serious net neutrality no-no.

After multiple hearings and the filing of more than 6,500 public comments, the FCC in August of 2008 gave Comcast a stern talking-to and ordered it to change its network management practice, but stopped short of issuing a fine. It also declined to make a formal rule regarding this sort of action, saying instead that it will continue to examine net neutrality issues on a case-by-case basis. So as per the FCC’s order, Comcast implemented a type of network management plan that temporarily slows connections for heavy bandwidth users when the network gets crowded. The management affects uploads and downloads and is protocol-agnostic. A Comcast spokeswoman said today that regardless of the success of Comcast’s appeal, its network management procedures will stay the same.

Comcast is seeking an appeal of the FCC decision based largely on its belief that the FCC’s order is unlawful. It argues that in an FCC proceeding, a law “must be either a statutory provision or an agency rule or precedent” and that the Internet Policy Statement adopted by the FCC in 2005 is neither, making it “unenforceable as a matter of law.” It goes on to allege that in censuring it, the FCC violated its own due process, essentially making up policies as it goes along, and that the commission has no authority to rule on this matter anyway because the subject falls far outside of its “statutorily mandated responsibilities.”

The FCC has until Sept. 21 to respond. Final documents must be in by Nov. 23, more than two years after the original AP report of BitTorrent throttling. Oral arguments likely won’t be scheduled until the spring of 2010. Justice, as always, moves slowly.