Court Provides Ground Rules For BitTorrent Argument

Case to be heard Jan. 8

By John Eggerton -- Broadcasting & Cable, 12/29/2009 2:00:48 PM

D.C. Federal Appeals Court has slated Comcast's appeal of the FCC BitTorrent decision as the third of three cases to be heard Jan. 8.

According to Comcast, each side has been given 25 minutes, actually a lot of time as these arguments go, which could indicate particular interest in the issue.

It also means the arguments could have time to extend even beyond those times, at the judges' discretion, since there is no case after it.

The FCC found back in summer 2008 that Comcast violated its Internet open-access guidelines by blocking BitTorrent peer-to-peer traffic.

Comcast took the FCC to court over the decision, challenging the legal underpinnings as well as the findings that Comcast was in violation, which it said "were not justified by the record."

Comcast told the D.C. court in a brief 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 the commission's brief to the court  that the FCC 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.

The FCC had open access guidelines, but not enforceable rules, a distinction the FCC is looking to erase with its proposed network neutrality rules expanding and codifying those principles.