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Summary:

[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 […]

[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.

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  1. Geez, I guess Comcast really does want to piss off it’s customers and get congress to start passing net neutrality bills around.

    1. After witnessing their handling of the health care issue, I’m not at all convinced that our federal legislators would defend “Net Neutrality” if faced with anything short of the threat of outright revolution. This is not to say that we shouldn’t try for legislation, just that the struggle will demand and unprecedented level of activism. Hence the need for media activism to make its way onto the agendas of human rights, conservation, feminist, and other organizations.

    2. I struggle with the FCC actually being successful at doing the right thing. Strong public awarness (we need media attention here) that a connection via Comcast is not access to the public Internet, rather, Comcasts managed (limited) service. I think the public funding for true open access is a great thing.

  2. » Comcast says the FCC hasn’t the right to enforce Net Neutrality Dvorak Uncensored: General interest observations and true web-log. Friday, August 14, 2009

    [...] on August 14th, 2009 Posted by Eideard in Business, Politics Daylife/AP Photo used by permission Comcast has filed its appeal of an FCC decision issued last August that censured the cable company for blocking P2P files, arguing that the [...]

  3. FCC chair proposes net neutrality rules, says commission must be ‘a smart cop’ | UpOff.com Monday, September 21, 2009

    [...] this approach has led Comcast to challenge the FCC’s order that the Internet provider stop slowing downloads for peer-to-peer [...]

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  6. Rep. Markey Warns About Right-Wing Misinformation: Net Neutrality May Be The Next ‘Death Panels’ | thehitjob.com Saturday, October 31, 2009

    [...] against former Obama adviser Van Jones. Some telecom companies — which, along with the cable industry, is driving opposition to an open Internet — have begun astroturfing efforts as [...]

  7. Rep. Markey Warns About Right-Wing Misinformation: Net Neutrality May Be The Next ‘Death Panels’ | No Bull. news service. Tuesday, December 8, 2009

    [...] against former Obama adviser Van Jones. Some telecom companies — which, along with the cable industry, is driving opposition to an open Internet — have begun astroturfing efforts as [...]

  8. What Silicon Valley Needs to Read to Learn What’s Going on in Washington, D.C. – GigaOM Monday, March 8, 2010

    [...] wishy-washy stance on regulating cable is now coming back to haunt it, as exemplified by Comcast challenging its ability to regulate net neutrality in light of the way the FCC had classified the cable service years back. Comcast argues that the [...]

  9. Federal Court Questions FCC’s Ability to Regulate Broadband Tuesday, April 6, 2010

    [...] filed its appeal of the original FCC ruling in August, calling into question the FCC’s ability to force it to follow the so-called [...]

  10. Comcast Triumphs Over FCC/Internet Freedom « the Global Observatory Tuesday, April 6, 2010

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