FCC Fires Back at Comcast in Net Neutrality Legal Battle

[qi:020][qi:026] The FCC defended today its right to censure Comcast for blocking P2P files on its cable network, arguing in a court filing that it has general jurisdiction over all interstate communications by radio and wire — including the company’s cable modem service. The claim came in response to Comcast’s appeal last month regarding the FCC’s August 2008 decision that ordered the cable provider to stop blocking P2P files and to amend its network management techniques. Comcast argued that the FCC had no jurisdiction to enforce the principles of net neutrality.

In today’s filing, however, the FCC claims it is duty-bound to impose the broadband principles that define network neutrality when network-blocking practices threaten to undermine its regulatory goals for cable, telecommunications and the Internet:

“It is settled law that the agency may exercise that jurisdiction over matters not directly addressed by the Communications Act — ancillary authority — where doing so furthers regulatory goals that are based in the provisions of the Act. The FCC also has ancillary authority over Comcast’s cable modem blocking practices by virtue of its regulatory authority over broadcast radio and television, cable services and telephony. The economics of broadcasting the local origination of programming, matters of longstanding FCC regulation, are directly affected by Internet network practices in much the same as they were by the advent of television.”

The FCC also says the Communication Act grants broad authority over “all interstate and foreign communication by wire or radio,” and claims it proceeded properly “by adjudicating rather than rulemaking.”

Interestingly, though, the FCC seemed to undermine its own claims Monday when it outlined proposals for network neutrality for both wireline and wireless networks. Chairman Julius Genachowski expanded on informal principles adopted in 2005 and set forth a framework by which those principles could become formal rules. Republican FCC commissioners Robert McDowell and Meredith Baker picked up on the contradiction, writing that:

“Curiously, today’s speech appears to admit that the Commission did not have enforeable rules at the time of last year’s Comcast/BitTorrent decision while the Commission simultaneously files its appellate brief defending that decision. As we analyze this situation further, we remain hopeful that any future Commission action will create an atmosphere that is conducive to promoting freedom, investment and innovation not only at the edge of the Internet but at its core as well.”

Comcast doesn’t intend to change its FCC-mandated plan to manage its network, and today’s announcement sets forth a formal effort that will address Comcast’s complaints. So my guess is this lawsuit may become moot — possibly before a judge even has a chance to rule on it.

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