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Comcast’s Right Hand Admits FCC Jurisdiction, Left Hand Declines to Comment

July 7, 2008 , , , ,

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:

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?