Comcast, FCC take net neutrality dispute to court

Jan 08, 2010 By JOELLE TESSLER , AP Technology Writer
In this July 30, 2008 file photo illustration, a silhouetted coaxial cable with the Comcast Corp. logo in the background is seen in Philadelphia. The FCC hopes to establish the legal underpinning for its push to write so-called "network neutrality" regulations _ which are intended to prevent phone and cable companies from abusing their control over the market for high-speed Internet access _ in a closely watched court battle between the agency and the nation's biggest cable operator. (AP Photo/Matt Rourke, File)

(AP) -- The Federal Communications Commission staked out new ground nearly three months ago when it began drafting rules that would require Internet providers to give equal treatment to all data flowing over their networks.

Now the FCC hopes to use a dispute with the nation's largest cable TV and Internet provider to establish its legal authority to adopt such "" regulations. The rules would aim to prevent phone and cable companies from abusing their control over the market for access.

A was holding oral arguments Friday in Comcast Corp.'s challenge of the FCC's 2008 order banning the company from blocking its broadband subscribers from using an online file-sharing technology known as BitTorrent.

The commission, at the time headed by Republican Kevin Martin, based its order against Comcast on a set of principles it adopted in 2005 to prevent broadband providers from favoring or discriminating against certain types of . Those principles have guided the FCC's enforcement of communications laws on a case-by-case basis.

Formally adopting those guidelines as binding regulations is a top priority for the FCC's new Democratic chairman, Julius Genachowski. The agency voted in October to start writing those rules.

And now, with Comcast appealing the FCC order against it, one key question that could come up in the courtroom is whether the commission has legal authority to mandate network neutrality. A ruling by the U.S. Court of Appeals for the District of Columbia Circuit, expected this spring, could bolster the FCC proceeding if the agency prevails.

"Comcast and others have challenged the FCC's authority to take action to protect consumers and ensure their access to a free and ," FCC General Counsel Austin Schlick said. "This case provides the court of appeals an opportunity to reject those arguments and confirm that the commission has the power it needs to accomplish those goals."

The policy dispute over network neutrality has pitted some of the country's leading Internet companies, including Internet search provider Google Inc. and the Internet calling service Skype, against the big phone and cable operators.

The Internet companies say that without such rules, broadband providers could become online gatekeepers and prioritize traffic for those who can pay extra, while degrading or blocking cheaper Internet calling services or online video sites that compete with their core businesses.

Indeed, BitTorrent, the online file-sharing technology blocked by Comcast, can be used to transfer large files such as online video, something that threatens Comcast's core cable TV business.

But broadband providers such as Comcast, AT&T Inc. and Verizon Communications Inc. argue that after pouring billions of dollars into their networks, they should be able to offer premium services to differentiate themselves from competitors and earn a healthy return on their investments.

They also insist they need flexibility to manage their systems so high-bandwidth applications such as BitTorrent don't hog too much capacity and slow down the network for everyone else.

For its part, Comcast wants to keep its challenge to the FCC order narrow. It argues that the order is illegal because the agency was seeking to enforce mere policy principles, which don't have the force of regulations or law.

As a result, the Philadelphia-based cable company says, it never had clear rules to follow and was never given fair notice of what conduct was prohibited. In fact, Comcast insists, the FCC proceeding to adopt the 2005 principles as formal regulations underscores its point.

Comcast also maintains that because that proceeding is still in the early stages, it remains unclear whether the agency even has legal authority to mandate net neutrality obligations. This larger question, however, should be left for another day, says.

Yet that is exactly the question that the FCC hopes the court will address. The commission argues that a 2005 Supreme Court ruling upholding its move to deregulate Internet service gives it the jurisdiction it needs.

The high court upheld the FCC's decision to define broadband as a lightly regulated information service, which is not subject to the obligations traditional telecommunications services have to share their networks with competitors. But a 1996 federal telecommunications law still gives the agency authority to set rules for information services - including, the FCC now argues, net neutrality rules.

An appeals court ruling that accepts this argument would "strengthen the agency's hand ... and provide validation" in its broader net neutrality proceeding, said Ben Scott, policy director for Free Press, a leading advocate for net neutrality rules. Free Press brought Comcast's actions to the FCC's attention after The Associated Press ran tests and reported that the cable company was interfering with attempts by some subscribers to share files online.

But even if the court concludes that the FCC lacks authority to adopt such regulations, it would not necessarily be a devastating setback - just a delay - for the commission.

That's because Congress, with a number of key Democrats in support of net neutrality, would likely step in to give the FCC the necessary powers.

Either way, Friday's oral arguments could provide a road map. After all, even if the court issues a very narrow ruling, the FCC's upcoming net neutrality regulations are likely to face a court challenge, too.

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User comments : 16

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Phelankell
1 / 5 (1) Jan 08, 2010
FCC's new Democratic chairman, Julius Genachowski

Hey, can journalists start getting this right?
It's not democratic chairman. It's democrat chairman. It may seem to be a semantics argument but there is a definite need to be precise, especially when unnecessarily adding someone's political affiliation.
vantomic
1 / 5 (1) Jan 08, 2010
"Indeed, BitTorrent, the online file-sharing technology blocked by Comcast,"

bitorrent is not blocked by comcast...
ShotmanMaslo
5 / 5 (1) Jan 08, 2010
As far as I know, net neutrality means that the providers cannot discriminate users based on the data they view. I fully support this.
They can still use speed or data limits to manage their bandwidth usage.
anonyfront
not rated yet Jan 08, 2010
"Indeed, BitTorrent, the online file-sharing technology blocked by Comcast,"

bitorrent is not blocked by comcast...


they did until the FCC hammered them recently. something like a $15M settlement.
Phelankell
2.5 / 5 (2) Jan 08, 2010
Comcast got hammered for the now famous reset fiasco. If you were using programs, like bittorrent, you'd start receiving continuous RST docsys packets. These packets serve to reset your connection so you'd have to reseed the torrent. Comcast tried to argue that they didn't restrict the traffic, simply delayed it. The courts thought otherwise, (probably because they were downloading music at the time). I agree with net neutrality. Comcast should be offering a feed to the internet, not a stopgate.
croghan26
1 / 5 (1) Jan 08, 2010
FCC's new Democratic chairman, Julius Genachowski

Hey, can journalists start getting this right?
It's not democratic chairman. It's democrat chairman. It may seem to be a semantics argument but there is a definite need to be precise, especially when unnecessarily adding someone's political affiliation.


Good catch, Phel .... let us hope he is democratic too.
Bob_B
1 / 5 (2) Jan 08, 2010
We got screwed by the government taking all the public bandwidth so everyone could share it, of course after all the profits were made first. It's just that all the profits haven't been made so - get used to being screwed. Big business needs even more of your money and of course you get nothing back for it.

Comcast is the tip of the iceberg.
Phelankell
1 / 5 (1) Jan 08, 2010
Good catch, Phel .... let us hope he is democratic too.


I don't think I'd want him leaving all the decisions on net neutrality up to the voters. But I certainly catch your drift.
Caliban
2.3 / 5 (3) Jan 08, 2010
Yes, it is kind of ironic that comcast is whining about their(individual consumer)customers eating up bandwidth, when it was the demand for bandwith created by these very same customers(us) that paid for the backbone to be built. Now they feel that they should be able to offer premium services to business at our expense. Privatize profit and socialize debt/risk. F**k Comcast. And the horse they rode in on. And all their friends.
Phelankell
not rated yet Jan 08, 2010
Jonnyboy, since you gave my comment a 1 would you like to tell me something good that the American voters have done recently? The majority of them are too apathetic to get off the couch for important things. What do you think they'll do about making flexible rules for data transmision?
Parsec
not rated yet Jan 09, 2010
Something good? Well the people voted for a competent President, they voted in enough of a Democratic majority to actually get things done, lots of good stuff.

Comcast need to tread very carefully. They have a horrible reputation for overpriced services and massively poor customer relationships. Continuing to alienate more and more people with their greedy, short-sighted policies will inevitably rebound in their faces. I absolutely agree with Caliban about what I would like for Comcast and their horse. I suspect a LOT of others feel as we do. I will never purchase any Comcast offered service, and I am actively promoting a boycott. I hope they rot in the dark place.
Phelankell
not rated yet Jan 09, 2010
Something good? Well the people voted for a competent President, they voted in enough of a Democratic majority to actually get things done, lots of good stuff.
We're going to disagree there. This congress hasn't done much of anything. Keep in mind, the majority of them have been in office since the Clinton era. It took them almost 12 years to get anything done, the majority of which is not working.

Our President's competancy can be measured by the abilities of those he's surrounded himself with. Realize the majority of them are criminal tax evaders(Geithner) or just utterly stupid(Napolitano).

Now keep in mind, I never said his predecessor was any good either.

And if I had an option other than Comcast in my area, I'd drop them like a bad habit.
Paradox
5 / 5 (1) Jan 09, 2010
And if I had an option other than Comcast in my area, I'd drop them like a bad habit.

I agree. As for the cable TV, I have the basic package and can only find two channels that are watchable.
I have to pay for all the bad programming just to get the two channels I like. It is a monopoly and I am forced to pay for something I don't want and won't use(The other 60 or so channels).

Jmaximus
1 / 5 (1) Jan 11, 2010
FCC's new Democratic chairman, Julius Genachowski

Hey, can journalists start getting this right?
It's not democratic chairman. It's democrat chairman. It may seem to be a semantics argument but there is a definite need to be precise, especially when unnecessarily adding someone's political affiliation.


Wrong Phelankell, it is called the Democratic Party not the Democrat Party. Would you say the Republic chairman?

http://en.wikiped..._States)
Jmaximus
5 / 5 (1) Jan 11, 2010
Comcast is buying out Hulu so they can stop people from by passing their crappy offerings at inflated prices. IPTV is the future and Comcast knows it.
Phelankell
not rated yet Jan 11, 2010
Wrong Phelankell, it is called the Democratic Party not the Democrat Party. Would you say the Republic chairman?


It's the Democrat party. both parties are "democratic". Wikipedia is not a suitable reference.