FCC and Comcast

[David Farber <dave () farber net>]

________________________________________
From: Brett Glass [brett () lariat net]
Sent: Saturday, July 12, 2008 7:01 PM
To: David Farber; ip
Subject: Re: [IP] FCC and Comcast

At 01:30 PM 7/12/2008, Frank Muto wrote:

> The FCC IMO has not met their ancillary jurisdiction powers for
> what they feel they can do to Comcast. This whole NN debate has
> matters of opinion on both sides of the issue and should be
> debated openly for public review and comment.

Indeed. To punish Comcast, whatever its sins, on the basis of what
was explicitly stated to be a "nonbinding" policy statement would
be, in effect, to retroactively declare those policies to be
rules... even though they had not been offered for public comment
as part of a notice of proposed rulemaking. In short, to do so
would constitute an "end run" around the Commission's own
rulemaking procedure –- one which bypassed fundamental due process.

When Michael Powell's FCC issued its policy statement, it
specifically said that these policies were not binding and did not
constitute rulemaking. What's more, the policy statement did not go
through a period of public comment in which the public had a chance
to point out potentially serious problems, such as the very
dangerous "any application" clause (which, because applications
embody behavior, would effectively prohibit any and all behavioral
restraints upon Internet users).

To penalize Comcast would retroactively turn Powell's nonbinding
statement of unpolished ideas into a set of rules enacted without
due process — an end run around proper rulemaking procedure — and
then enforce them ex post facto. This would be arbitrary and
capricious behavior, and would undoubtedly be seen by the courts as such.

I've long argued (see http://www.brettglass.com/principles.html)
that there should be rules for the Internet -- but that such rules
should be imposed thoughtfully, with great restraint, and only
after the public had opportunity to comment upon, and point out
potential flaws in, the language.

--Brett Glass





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