Predictably, FCC Action on Comcast Spurs No End of Whining
by John Paczkowski
Posted on October 29, 2009 at 11:22 AM PT
The Federal Communications Commission likes to describe the enforcement action it took against Comcast for its overzealous network management techniques as “modest.” Which is an apt description, since the FCC measure really contained no substantive punishment.
Certainly, requiring Comcast (CMCSA) to disclose more information about its traffic management practices seems a mere slap on the wrist for a company that deliberately interfered with BitTorrent traffic in violation of Internet openness principles. But Comcast, which wants a court to reverse and vacate the FCC decision, feels even it was too much.
“The order is unlawful because it enforced mere policy–not any provision of federal law–against Comcast,” the company said in a brief filed with the D.C. Circuit Court of Appeals this week. “The commission’s action was procedurally improper and violated bedrock principles of fair notice…the FCC erred in enforcing mere policy…and this court can and should dispose of this case on that ground alone.”
In other words, since the FCC’s Network neutrality principles haven’t yet been codified, Comcast can’t be held accountable for violating them. The FCC, of course, disagrees. In a filing of its own, it wrote, “[FCC] determinations were lawful and reasonable….Congress created the FCC for cases such as this one.”
Indeed. And while it’s true that those Net neutrality principles Comcast ran afoul of aren’t yet official rules, they clearly will be soon.
Comments
Or maybe not. One of the very good arguments that Comcast has made in court — and, in fact, it was echoed by Robert McDowell, one of the Commissioners who dissented in the decision — is that the FCC doesn’t have the statutory authority to regulate the Internet.
In short, the court might give the FCC a serious comeuppance, just as it did when the agency tried to fine broadcasters who were not psychic and therefore did not know to censor the Janet Jackson halftime show.
And this would be a good thing, because regulation of the Internet would be a slippery slope. If the FCC can regulate ISPs, how long will it be before — with video shifting to the Net — the FCC tries to implement its Janet Jackson penalties against Internet sites? If it has the power to force ISPs to carry certain content, it would also have the power to tell them not to.
Posted by Brett Glass at October 29th, 2009 at 12:10 pm“Overzealous network management techniques”??? What Comcast did was try to keep a few bandwidth hogs who use bittorrent from degrading the online experience of the vast majority of Comcast’s customers. The interests of Comcast and most of its customers are exactly aligned here.
Posted by alan miles at October 29th, 2009 at 4:31 pmMcDowell seems to be the only commissioner who talks technology instead of platitudes. His dissenting statement at the initiation of the “rule-making” process covers all the bases while remaining diplomatic.
If Comcast is wrong in this case, why can Google (who famously supports NN rules) get away with blocking phone calls in Google Voice?
Why can’t I file an FCC complaint against Verizon the next time my DSL service goes down for an hour? Why can’t my friends in Florida who were without phone service for two days file a complaint against their cable company (who bundles phone service)? Why is it when I’m trying to set someone straight over the phone they keep interrupting me!?
I’m mad as hell and I’m not going to take it any more! I expect the FCC to resolve my personal problems by next Thursday or I’m going to sue the entire federal government.
You’ve been warned!
Posted by Mac Beach at October 29th, 2009 at 8:42 pm