Comcast Sues FCC Over Network-Management Ruling
Cable operator will comply with FCC decision but challenges legal underpinning, findings that it was in violation.
By John Eggerton -- Broadcasting & Cable, 9/4/2008 10:58:00 AM
Comcast took the Federal Communications Commission to court over its decision to find the company in violation of the FCC's open-access guidelines.
In a statement accompanying a filing Thursday with the U.S. Court of Appeals for the D.C. Circuit, Comcast said it would comply with the terms of the FCC decision, but it was challenging the legal underpinning of that decision, as well as the findings that Comcast was in violation, which it said "were not justified by the record."
"We filed this appeal in order to protect our legal rights," said Comcast, "and to challenge the basis on which the Commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules."
On Aug. 20, the FCC released the official order finding that the company's broadband-network-management practices were arbitrary and capricious and giving Comcast 30 days to "disclose the details" of those "unreasonable" network practices, as well as its plan for replacing them by year's end with network-management practices acceptable to the FCC.
Saying that it was inviting the public and Comcast critics to keep an eye on the company, the FCC said the order did not terminate the proceeding, but it would retain jurisdiction as it "trusts but verifies" Comcast's compliance.
The FCC's order was in response to complaints by Free Press that Comcast was interfering with its customers’ use of peer-to-peer applications, notably BitTorrent, as well as its request for a declaratory ruling on just what constituted reasonable network management.
The FCC concluded that Comcast had a competitive reason to slow BitTorrent uploads since it is trying to grow its own online-video business and BitTorrent represented "a competitive threat" to cable.
Comcast argued that it was simply trying to keep bandwidth hogs from impeding network traffic for other users, but the FCC countered that it was not necessarily targeting high periods of traffic or congestion -- a point Comcast ultimately conceded, the FCC said.
Also key to the FCC's finding was its conclusion that Comcast had not sufficiently notified customers about what it was doing.
Comcast has said it does not think its network-management practices were unreasonable and argued that the FCC does not have the authority to enforce its network-nondiscrimination guidelines. The FCC said it has plenty of authority, citing a Supreme Court decision that "specifically recognized the commission's ancillary authority to impose regulations as necessary to protect broadband Internet access," as well as its general authority to regulate communications.
"Although we are seeking review and reversal of the commission’s network-management order in federal court, we intend to comply fully with the requirements established in that order, which essentially codify the voluntary commitments that we have already announced, and to continue to act in accord with the commission’s Internet policy statement," Comcast executive vice president David Cohen said in a statement Thursday announcing the suit.
"Thus, we intend to make the required filings and disclosures, and we will follow through on our long-standing commitment to transition to protocol-agnostic network-congestion-management practices by the end of this year," he added.
The Open Internet Coalition, which backs network neutrality legistion, used the suit to argue for congressional intervention.
“Comcast’s appeal raises a serious question of whether the Commission’s Broadband Policy Statement, guaranteeing consumers the right to access content and applications of their choice over the ‘Net, has the force of law," said Markham Erickson, coalition executive director. .
“We believe that Congress must step forward and bring clarity to this issue and protect innovation and choice for both consumers and innovators.”
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