Comcast: FCC's BitTorrent Decision Violated "Fair Notice"

Cable giant challenges commission's judgment on peer-to-peer traffic in D.C. federal appeals court

By John Eggerton -- Broadcasting & Cable, 10/27/2009 11:58:23 AM

Comcast told a D.C. federal appeals court Monday that the FCC's BitTorrent decision was hardly modest (as the FCC claims), was done without the requisite notice, and was unenforceable.

Comcast was responding to the FCC's argument in its brief to the court last month that it had the authority to take action against Comcast for "covertly interfering" with BitTorrent peer-to-peer traffic in violation of Internet openness principles--and doing so in an adjudicatory proceeding rather than a rulemaking.

Comcast argues that the FCC violated "basic rules of fair notice" because the conduct it targeted--reducing peer-to-peer traffic on the network--did not violate any FCC rules.

"[T]he unenforceability of the Policy Statement has now been confirmed by the initiation of a rulemaking to establish the Policy Statement (and two new principles, including non-discrimination) as enforceable regulations," said Comcast in its brief.

The FCC last week proposed codifying its network neutrality principles, partly in response to Comcast's legal challenge to their enforceability.

Comcast also argues that the FCC's invocation of "virtually the entire Communications Act" for its authority is a regulatory theory that "would free the agency of any meaningful statutory limits on its power, restrict Congress' role to prohibiting agency action rather than, as present law establishes, authorizing such action."

The company took umbrage at the FCC's argument that the order was "modest," calling that characerization "an exercise in revisionist history."

While Comcast voluntarily agreed to discontinue the network management practice at issue--the company maintains it did nothing wrong--the FCC "held that Comcast violated 'federal Internet policy,' mandated that the company cease the challenged practices by December 31, 2008, asserted continuing jurisdiction over the company's network management practices, and threatened further sanctions for failure to comply."

Final joint briefs are due Nov. 23, according to Comcast, which wants the court to reverse and vacate the FCC decision.