For months, Comcast spokespeople have been deny, deny, denying that the FCC has the power to do anything about Comcast’s throttling of BitTorrent traffic. Now, in papers filed as part of a class action lawsuit against Comcast, Comcast has gone the opposite direction, asserting that because “these issues are within the subject matter jurisdiction of the FCC, and because the FCC is actively investigating them,” the judge should put the suit on hold until the FCC renders a decision. The court has agreed, staying the case until the FCC acts.
There are some other choice quotes available in Comcast’s filings:
This issue – i.e., the reasonableness of a broadband provider’s network management practices – has, however, been firmly placed within the jurisdiction of the Federal Communications Commission (“FCC”), an administrative agency whose authority to regulate internet broadband access companies’ services is well-established.
Two petitions, filed by Free Press and Vuze, Inc., are currently pending before the FCC and specifically ask the FCC to (a) adopt reasonable rules preventing network operators from adopting practices that discriminate against particular internet applications, and (b) enjoin Comcast from managing P2P applications.
At a minimum, those claims [that Comcast’s network management practices are “unfair” or that they are “unlawful” because they violate the CFAA or the FCC’s Internet Policy Statement] should be stayed during the pendency of the FCC proceeding, as they are squarely in the heartland of the FCC’s primary jurisdiction.
And, of course, the court wholeheartedly agrees about the FCC’s jurisdiction, even mirroring Comcast’s language word for word:
This issue – i.e., the reasonableness of a broadband provider’s network management practices – has, however, been firmly placed within the jurisdiction of the Federal Communications Commission (“FCC”), an administrative agency whose authority to regulate internet broadband access companies’ services is well-established.
If you want to see the statements in their legal context, here you go:
- Comcast Motion for Judgment on the Pleadings
- Comcast Reply in Support of Judgment on the Pleadings
- Order Granting Request for Stay
So which is it, and what will Comcast do next? In the future, look for Comcast to argue that their filings in a California law suit can’t be used against them in an FCC proceeding. Also watch for them to say that the two are consistent anyway, because the Commission has jurisdiction, but not the authority to act. Huh?
I don’t see that much
I don’t see that much inconsistency. I’d expect Comcast to argue that the FCC has jurisdiction by law but not much authority until a rule-making is concluded.
The “Four Freedoms” policy statement is a political thing, all very exciting in its own way but inadequate as a piece of regulation. The regulator needs to issue a clear definition of the “reasonable network management” exception that has become more important than the freedoms. You could easily deep-six the four freedoms and not lose a thing if you simply replaced them with “Customers can do whatever the hell they want, within reasonable limits. Now let’s talk about those limits…”
It’s actually pretty
It’s actually pretty clear…
For those of you who have been following the debate around what the FCC’s authority is to regulate the management of broadband networks, you know it’s already muddy enough. Jef’s post is consistent with a fairly persistent effort to obfuscate what Comcast’s position is on this question. So let’s try to make a complicated legal argument as simple as we can.
First, the FCC has said it has jurisdiction over matters involving Internet transmissions, including how broadband networks are managed – Congress gave it that jurisdiction. In the case in California, we told the court exactly that – that the subject matter of Internet transmissions is a federal concern. We did not say that Congress gave the FCC the power to regulate the Internet in the way Free Press wants. And even if you assume that Congress did give the FCC that power, the FCC has not taken the legal steps necessary to regulate the Internet the way Free Press wants.
“What Free Press wants” is to punish Comcast for engaging in network management that Free Press believes “violates” the FCC’s so-called Internet Policy Statement. Free Press argued last October that the FCC can and should “enforce the Policy Statement.” But FCC commissioners have said on several occasions that the Internet Policy Statement is not enforceable, and the law is very clear on that basic point. The Policy Statement is not a set of rules. It doesn’t have any binding effect. And the FCC has never adopted rules in this area.
Free Press now seems to understand that its argument from last October is flawed – so it flip-flopped. A couple of weeks ago, they filed a 112-page document with the FCC in which they try out a new legal argument. We’ve just finished digging through it, and we will file a comprehensive (and somewhat shorter) reply in the next few days. This is lawyerly stuff, but it’s important – and it’s a lot easier to deal with in well-reasoned legal filings than in a blogpost. We’ll make our filing available as a download by posting a link on this site when it’s filed.
In my post on Tuesday, I
In my post on Tuesday, I promised to provide a link to the legal memorandum we would be filing with the FCC explaining how Free Press flip-flopped on its position as to whether the FCC could punish a broadband network provider for engaging in reasonable network management. The FCC has posted our memo on its website this morning: http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520033818 .
I noticed that Marvin Ammori posted his own POV on these issues on his website the other day… before we filed our legal response, of course. I like to stick with the law and the facts, so I’ll leave the over-the-top rhetoric to Marvin.