The full filing is available in PDF format.

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554

In the Matter of
Free Press, et al. Petition for Declaratory Ruling
Broadband Industry Practices
WC Docket No. 07-52

To: The Commission

REPLY TO COMCAST’S ARGUMENT WITH REGARD TO CBS v. FCC

Media Access Project, on behalf of Free Press, et al., files these further written ex parte comments in response to the written ex parte filed by Comcast on July 24, 2008.^[1]

Nothing in the Third Circuit’s decision in CBS v. FCC, No. 06-3575 (3d Cir., July 21, 2008) has relevance to the pending complaint in this proceeding, and the Commission should reject Comcast’s efforts to transform a garden-variety reversal involving a completely different statute and factual circumstance into a barrier to resolving the issues presented to the Commission here. Nothing in CBS v. FCC alters the fact that adjudication and application of the policy statement in this case are consistent with 80 years of practice going back to the first adjudications by the Federal Radio Commission. See Federal Radio Commission v. Nelson Bros., 289 U.S. 266 (1933) (affirming resolution of policy via adjudication and with reference to policy statement). Nor does CBS v. FCC support Comcast’s efforts to restrict well established Title I authority, or to claim “surprise” that the Commission might do that which it explicitly told Comcast it would do – entertain complaints if Free Press or any other party presented evidence of “willfully blocking or degrading” internet content.

Finally, the Commission should simply ignore Comcast’s increasingly strident efforts to introduce procedural errors through what can only be described as strained and egregious reading of Free Press’ responses to Comcast’s pleadings. Free Press has not wavered from its original theory simply by responding to Comcast’s insistence on a lack of authority. Nor has it conceded the applicability of Section 312 merely by discussing the consequences of applying it as Comcast has requested, nor abandoned past argument merely by refusing to repeat the same points ad naseum, or made any of the other “concessions” with which Comcast’s counsel continue to lard their responsive pleadings. While Free Press would be the last to deny Comcast the opportunity to pursue the legal strategy of its choice,^[2] Free Press sees little value in wearying the Commission with a meticulous point-by-point rebuttal, which will only summon another repetitive filing by Comcast. After thousands of pages of briefing and three public hearings, all that needs to be said has surely been said. The time has come to draw this proceeding to a close, and for the Commission to render its judgement.

[1] Because the ex parte relied upon CBS v. FCC, No. 06-3575 (3d Cir. July 21, 2008), the General Counsel contacted Media Access Project, counsel to Free Press, to request that Free Press file a reply to the July 24 ex parte, and to address any other issues as may seem relevant in light of CBS v. FCC or that may assist the Commission in resolution of the Complaint.

[2] But see Comcast v. FCC, 526 F.3d 763, 769 n.2 (D.C. Cir. 2008).