Declan McCullagh (CNET): FCC probably can't police Comcast

[David Farber <dave () farber net>]

________________________________________
From: Brett Glass [brett () lariat net]
Sent: Monday, July 28, 2008 10:20 PM
To: David Farber; Ip ip
Subject: Declan McCullagh (CNET): FCC probably can't police Comcast

July 28, 2008 12:05 PM PDT

FCC probably can't police Comcast's BitTorrent throttling
by Declan McCullagh

Federal regulators are planning to meet on Friday and declare that
Comcast violated Net neutrality principles when throttling
BitTorrent traffic on its network. This would become the U.S.
government's first Net neutrality-related ruling.

There's just one problem with the Federal Communications
Commission's plans: They may not be quite, well, legal. In other
words, the FCC may not actually have the authority to make its ruling stick.

In 2006, Congress rejected five different bills, backed by groups
including Google, Amazon.com, Free Press, and Public Knowledge,
that would have handed the FCC the power to police Net neutrality
violations. Even though the Democrats have enjoyed a majority on
Capitol Hill since last year, their leadership has shown zero
interest in resuscitating those proposals.

It's true that the FCC adopted a set of principles in August 2005
saying "consumers are entitled to run applications and use services
of their choice." But the principles also permit providers'
"reasonable network management" and, confusingly, the FCC admitted
on the day of their adoption that the guidelines "are not enforceable."

Friday's scheduled vote at the FCC stems from a request submitted
in November by Free Press and its political allies, including some
Yale, Harvard, and Stanford University law school faculty. They
claim the FCC has the authority--under existing law--to "impose
additional regulations" declaring Comcast's throttling to be illegal.

"Should Comcast finally be held accountable for its illegal
practices, it will be the direct result of historic public
involvement in this precedent-setting debate," said Marvin Ammori,
general counsel of Free Press, which is funded in part by George
Soros' Open Society Institute. "We look forward to seeing the
order, and commend the FCC for conducting such a thorough
investigation on behalf of Internet users everywhere."

FCC Chairman Kevin Martin, a Republican and occasionally the swing
vote at the commission, is reported to be in favor of ruling
against Comcast. It's no stretch to say the FCC's two Democrats,
Michael Copps and Jonathan Adelstein, will join him. That leaves
the remaining two Republican commissioners dissenting; commissioner
Robert McDowell wrote an op-ed article published in the Washington
Post on Monday that the Internet would "die of clogged arteries if
network owners had to seek government permission before serving
their customers by managing surges of information flow."

Lacking authority

Lack of legal authority hasn't stopped the FCC before. In 2005, a
federal appeals court in Washington, D.C., ruled the agency did not
have the authority to draft its so-called broadcast flag rule. Last
week, a federal appeals court in Pennsylvania ruled the FCC's
sanctions against CBS, which publishes CNET News, in the Janet
Jackson Wardrobe Malfunction Incident amounted to an "arbitrary and
capricious change of policy."

(Ironically, some of the same interest groups that sued the FCC
over its claim to possess unfettered authority--even in the absence
of congressional authorization--to enforce broadcast flag rules are
now backing its theories of unfettered authority to police Net
neutrality violations. Public Knowledge, for instance, claimed the
FCC's use of so-called ancillary authority was "arbitrary and
capricious" and "unlawful." Now it loves the idea.)

For its part, Comcast has been adamant that it would be unlawful
for the FCC to hand down a cease-and-desist order related to
BitTorrent. Its filings with the agency read like legal briefs, and
amount to an unsubtle promise to file a lawsuit if the FCC
proceeds. One, for instance, warns the FCC that any ruling "clearly
would be subject to close and skeptical judicial review."

Comcast spokeswoman Sena Fitzmaurice on Monday declined to say
whether her employer would sue, saying the text of any order has
not been released and it's not clear what authority the FCC would invoke....

Full text at

http://news.cnet.com/8301-13578_3-10000821-38.html




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