Comcast: FCC lacks any authority to act on P2P blocking (i.e.: Comcast to FCC: 'Drop dead!')

ars technia ^ | March 18, 2008 | Matthew Lasar

[dickmc]

The man who spoke for Comcast at Harvard last month has told the Federal Communications Commission that the agency has no legal power to stop the cable giant from engaging in what it calls "network management practices" (critics call it peer-to-peer traffic blocking). Comcast vice president David L. Cohen's latest filing with the Commission claims that regulators can do nothing even if they conclude that Comcast's behavior runs afoul of the FCC's Internet neutrality guidelines.

"The congressional policy and agency practice of relying on the marketplace instead of regulation to maximize consumer welfare has been proven by experience (including the Comcast customer experience) to be enormously successful," concludes Cohen's thinly-veiled warning to the FCC, filed on March 11. "Bearing these facts in mind should obviate the need for the Commission to test its legal authority."

[dickmc]

Should we read "test" as in "test an FCC Order on ISP network management in Federal court"? Cohen presented Comcast's case at the FCC's February 25th net neutrality hearing, held at Harvard Law School. Whatever the merits of his March 11 claims, they should be examined carefully. They may represent the framework for a legal challenge against any action the FCC takes to protect consumers.

Cohen's arguments fall along three main points......

1. Congress has not given the FCC authority to act on this matter

The Federal Communications Commission has made clear, Cohen writes, that cable service is not a common carrier and therefore is not subject to common carrier guidelines. Cohen summons the FCC's 2002 Cable Modem Declaratory Ruling to back up this argument. The ruling invoked language contained in the Telecommunications Act of 1996 to characterize cable as an "information service" rather than a common carrier. After a long court battle, the Supreme Court backed up the FCC in its 2005 Brand X decision. The high court rejected the Brand X ISP's plea that if the FCC did not attach common carrier status to cable, cable providers could exclude smaller competing ISPs from accessing larger networks.

Comcast argues that Cable Modem settles the question: "Any attempt to justify an injunction on Comcast based on a statutory provision that is explicitly limited to common carriers would violate the Communications Act and be arbitrary and capricious," Cohen writes.

2. The FCC's Internet Policy Statement does not give the agency the authority to deal with the issue

The 2005 statement pledges the FCC to ensure that ISP services are operated "in a neutral manner." But Cohen insists that said declaration has no force of law. "It is settled law that policy statements do not create binding legal obligations," he argues. "Indeed, the Internet Policy Statement expressly disclaimed any such intent."

Actually, the statement declared that the FCC has the "jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner." On the other hand, FCC Chair Kevin Martin issued a comment insisting that "while policy statements do not establish rules nor are they enforceable documents, today’s statement does reflect core beliefs that each member of this Commission holds regarding how broadband internet access should function." Cohen is obviously hanging his legal hat on this ambiguity

3. Regulating Comcast's ISP policies may violate the Administrative Procedures Act (APA)

This is a generic protest found in many FCC filings. Congress enacted the Administrative Procedures Act in 1946 to establish uniform rules and guidelines for governmental agencies, given the enormous expansion of the executive branch over the previous dozen years. Cohen writes that the FCC is bound by the APA "not to act in an arbitrary and capricious manner" and that the law "does not permit the Commission to switch abruptly from an explicit policy of relying on market forces to a new regime in which the decisions that Internet service providers make in real-time in a dynamic marketplace are subject to governmental second-guessing and disruption."

Actually, the APA mentions "arbitrary and capricious" behavior only once—and in reference to the withholding of government documents from litigants.

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The real question is how much significance to attach to any of these arguments. Legal saber rattling? Maybe. They could also pose a warning to the FCC to expect a lawsuit following any action against ISP P2P blocking. FCC Chair Martin says he hopes to finish his investigation of Comcast by late June.

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(Comcast sounds like a company who thinks their customers don't have any other option ...and... that their customers have a very short memory ...and... that their customers don't read the net.)

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Adding further fuel to the fire:
"Canada's public broadcast network, CBC, is to adopt DRM free BitTorrent distribution of one of its major primetime shows, Canada's Next Great Prime Minister. The effort has already been hailed by Canadian copyright guru Michael Geist, who expects the decision to add fuel to Canada's net neutrality debate. A CBC producer behind the show told CNET that the motivation for the move was that CBC 'wanted the show to be as accessible as possible to as many Canadians as possible, in the format that they want it in.' As for DRM, she said 'I think DRM is dead, even if a lot of broadcasters don't realize it.' She added that 'if it's bad for the consumers, its bad for the company.'" Per slashdot here.

[KarlInOhio]

If Comcast wants to pick and choose which bits it transmits to its customers, then I think it is giving up its protection as a common carrier and could be held liable for every illegal action for which its customers use its data lines.

[mysterio]

Screw comcast. I don’t need my overpriced provider to tell me what I can download and what I can’t. They just bought up all of the competing cable companies in my area. Perhaps it’s time to consider whether or not they are behaving in an anticompetitive fashion.

[steve-b]

Meh. So Comcast gets nailed by the FBI for fraud instead of by the FCC for violating network standards. Dunno why their execs prefer the former (which involves a rather higher risk of spending 2-5 as roommates of Bubba), but if that’s what floats their boat....

[Slump Tester]

Makes sense to me. The FCC should hold them to that.

[Digital Sniper]

If Comcast wants to pick and choose which bits it transmits to its customers, then I think it is giving up its protection as a common carrier and could be held liable for every illegal action for which its customers use its data lines.

Comcast has no common carrier status as an ISP. ISPs are not regulated by the FCC. Phone services are, but that's it.

[Digital Sniper]

ISPs are not common carriers. They are not regulated by the FCC. The FCC is out of line in this case. If they want to go after phone companies' handling of phone access, that's their domain...but it is not their domain to boss around internet service providers (ISPs). Period.

[Alex Murphy]

FCC hijinks PING

[ShadowAce]

[Conservative Vermont Vet]

Unfortunately for me, at the present time, Comcast is the only game in town.

I know they are slowing my downloads when I use P2P

Hopefully, when I move this summer, I will have access to Verizon, which friends tell me that (at least for now) does not interfere with any of their downloads.

[rurgan]

FCC and the laws that mandated the FCC should be dismantled.

FCC is against freedom, the free market , and capitalism all which work while government/socialism has never worked.

[Smogger]

Comcast is screwed. Verizon’s FIOS network is so much faster and has so much more bandwidth available, Comcast can’t possibly hope to compete.

I get 15Mbps up/down right now. I could get uncompressed HDTV and HD on demand if I chose to right now.

Verizon doesn’t block a thing.

[KoRn]

Me to Comcast: Drop dead

I already suffer just from having their cable TV service, and having to see their deceptive TV commercials regarding internet speeds every 10 minutes. Cable internet is inferior to DSL, I don’t care what the ‘potential’ throughput is, you just never see it when the school kids get home and jump on myspace, ect. With DSL, which may have a slower potential throughput, but you get *almost* what you pay for every single time you sit down in front of the computer and use it, and the kiddies in your neighborhood won’t ever slow you down because you are point-to-point with the DSLAM, and not on ‘shared Ethernet’ with other subscribers.

[traviskicks]

Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.

[monday]

“Unfortunately for me, at the present time, Comcast is the only game in town.”

Maybe not? I know for sure you can get HughesNet, or SkywayUSA, or Wildblue, or StarBand via satellite, and unless you live out in the boonies you can also get DSL from a number of different companies. You probably also have companies offering microwave wireless access, and finally, if you don't mind paying extra, many cell phone companies also have ‘anywhere’ wireless access. There really isn't any excuse for staying with Comcast even if they own every cable company in the area.

[Bastiat_Fan]

I believe that if you use bittorrent, you can encrypt the signal to evade the p2p blocking. At least that’s what bittorrent says.