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Comcast Returns Fire

9/05/2008 8:00 PM Eastern

Comcast last Thursday sued the Federal Communications Commission in a federal appeals court over the agency’s recent ruling that the cable company had mismanaged its broadband network while consumers traded large video files over the Internet.

Philadelphia-based Comcast wants the FCC’s decision reversed on grounds that the agency failed to base its actions on previously adopted rules or standards.

“We are compelled to appeal because we strongly believe that, in this particular case, the [FCC’s] action was legally inappropriate and its findings were not justified by the record,” said Comcast executive vice president David Cohen in a prepared statement.

Comcast filed in the U.S. Court of Appeals for the D.C. Circuit, a tribunal that has a history of reversing major policy decisions by the FCC. That same court struck down an FCC rule that barred any cable company from serving more than 30% of pay TV subscribers nationally.

On Aug. 1, the FCC voted 3-2 to order Comcast to cease delaying file sharing or peer-to-peer applications that consumers run over the company’s broadband Internet network. A popular peer-to-peer application called BitTorrent is frequently used to exchange large video files that can slow down Internet access for many other Comcast customers.

Comcast said that it had slowed down only uploads during peak hours to relieve congestion on its network and prevent a tiny minority of users from degrading service for the vast majority of Web surfers.

But the FCC majority — after public hearings at Harvard Law School and Stanford University — didn’t accept Comcast’s explanation.

In fact, FCC chairman Kevin Martin accused Comcast of lying to the public about its role in delaying peer-to-peer traffic.

The FCC is controlled by a 3-2 Republican majority. However, Marin, a Republican, joined commission Democrats Michael Copps and Jonathan Adelstein in deciding to brand Comcast an Internet renegade. Republicans Robert McDowell and Deborah Taylor Tate, casting dissenting votes, expressed concern that the FCC was regulating the Internet for the first time based on less than compelling evidence of foul play.

The FCC — which gave Comcast until Dec. 31, 2008 to comply with its cease-and-desist order — said that the MSO’s network-management techniques were inconsistent with the agency’s August 2005 statement of principles on the maintenance of a free Internet.

In a prepared statement on the day the FCC adopted the principles, Martin insisted they were not formal rules and were not enforceable.

Comcast has until Sept. 19 to disclose where it is delaying P2P traffic and how it intends to meet the end-of-the year deadline set by the FCC.

“We intend to make the required filings and disclosures, and we will follow through on our long-standing commitment to transition to protocol-agnostic network congestion management practices by the end of this year,” Cohen said.

Free Press, a media reform group that filed the Internet blocking complaint at the FCC against Comcast, said federal legislation was necessary to ensure that Comcast couldn’t prevail in court.

“The future of the Internet is too important to let Comcast tie it up in legal limbo. Congress should act now to pass net neutrality laws that clear up any uncertainty once and for all,” said Free Press policy director Ben Scott.

Meanwhile, the Media Access Project, a public-interest law firm, filed related suits in three different courts of appeals on behalf of Vuze Inc. (9th Circuit), Consumers Union (2nd Circuit); and PennPIRG (3rd Circuit).

Although MAP’s clients hailed the FCC’s action against Comcast, they now want the courts to eliminate the FCC’s Dec. 31 deadline and make the cable operator comply with the agency’s order immediately.

“Comcast can very easily drag this out at least until we get into a new FCC,” said MAP attorney Harold Feld. “Who knows? They may be able to get the FCC to continue to delay and never actually give us the injunctive relief that we asked for [at the FCC].”

When parties appeal the same FCC order in multiple jurisdictions, the U.S. Judicial Panel on Multidistrict Litigation conducts a lottery to assign the case to a court of appeals.

MAP’s Feld acknowledged that he deliberately avoided the D.C. Circuit.

“We’ve gone where we think we’re going to have the greatest likelihood of success. They’re going where they think they’re going to have the greatest likelihood of success,” Feld said.

September