With its appeal of an FCC enforcement order, Comcast is showing how a bunch of highly trained lawyers can overturn the spirit of the law with a focus on definitions and legalese. It’s a battle played out in procedural dramas in prime time, but in those shows the spirit of the law generally wins. The outcome of this real-life situation — in which the FCC chastised Comcast for throttling P2P traffic without telling users — is far less certain.
But first, like in any courtroom drama, there are a lot of procedures to get through. First, since other groups are appealing the FCC order in three different circuit courts around the country (mostly for letting Comcast off too lightly), the courts will hold a lottery to determine which circuit court gets to hear a consolidated appeal. Then that court will set up a pleading schedule and the parties will make their arguments. Getting to the arguments could take months.
Judging by its previous filings with the FCC, Comcast will likely argue two main things: One, that the whole process was invalid because the terms of the complaint shifted midway through the proceeding; and two, that if the FCC wants to implement and enforce some sort of “reasonable network management practice,” it needs to do so with a formal rule-making process.
In those earlier filings with the FCC, Comcast argued that the Free Press, which originally filed a complaint against the ISP last fall, asked the commission to investigate Comcast based on a previous FCC policy statement. The FCC started the investigation, but later in the game the Free Press changed its terms, prompting the FCC to investigate Comcast under a section of the Communications Act. The Free Press says it was using shorthand in its first filing, but when it comes to lawyers, shorthand is no excuse. Anyhow, Comcast argues that even if the terms didn’t matter the FCC still overstepped its bounds.
In a later filing, Comcast went to great lengths to explain how the FCC overstepped its bounds. In particular, it said that unless the commission sets up a formal rule-making proceeding (which Comcast is happy to be a part of), the FCC can’t just turn around and admonish Comcast for throttling traffic because at the time, there wasn’t a rule against it.
In the same filing, Comcast belittled the Free Press and anyone silly enough to want some form of FCC rule-making to protect consumers from overzealous network management. Comcast offered a series of slippery slope arguments about how making the FCC judge network management practices would lead to micromanagement by the agency, and fear on the part of ISPs to make investments in their networks if the FCC didn’t like the ISP’s methods. Comcast also argued that, as an Internet provider, it should be free of federal regulation.
As if we’re not already feeling a little sullied by the entire argument — after all, Comcast did throttle P2P traffic while not telling consumers — Comcast thumbed its nose at the proceeding by pointing out that during the two financial quarters that the FCC investigation took place (along with all the negative publicity), Comcast added nearly 1 million high-speed Internet customers. Sometimes the market doesn’t give a damn about the spirit of the law.