The OTHER lawsuits challenging the FCC decision

[David Farber <dave () farber net>]

Begin forwarded message:

From: Brett Glass <brett () lariat net>
Date: September 5, 2008 11:14:23 AM EDT
To: "David Farber" <dave () farber net>, "Ip ip" <ip () v2 listbox com>
Subject: The OTHER lawsuits challenging the FCC decision


Dave:

I see that you've covered the Comcast challenge to the FCC "network  
management" order on your list. But there are three other lawsuits  
which haven't been noticed by the press or documented on your list.

As someone who commented on the proceeding, I received an envelope  
this week from Harold Feld's Media Access Project containing  
voluminous copies of three nearly identical lawsuits, filed by Vuze,  
Inc., PennPIRG, and Consumers' Union in three different circuits.  
Believe it or not, all of these suits challenge the FCC ruling as well.

The lawsuits are "petitions for review" of the FCC's recent decision  
regarding Comcast's network management practices. Yet, despite their  
heft, they challenge one (and only one) provision of the FCC's recent  
decision against Comcast: the provision which gives Comcast a bit of  
time to figure out and implement a different network management scheme  
than the one it has been using. The PennPIRG lawsuit, for example,  
states:

"Petitioner seeks review of the Commission's failure to order Comcast  
to cease its practice immediately on the grounds that it is contrary  
to law, and is otherwise arbitrary and capricious. Specifically, the  
OPINION AND ORDER failed to give adequate weight to the ongoing  
inquiry to consumers unable to access many Internet services, and to  
P2P content providers who are therefore unable to reach their audience."

The claims above are specious. It is not this one provision but the  
entire order that is contrary to Federal law -- in particular, 47 USC  
230(b), which mandates that Internet service remain unfettered by  
regulation and supercedes any policy that might be suggested by the  
FCC. What's more, there is no evidence that consumers are "unable to  
access many Internet services" (Comcast's throttling does not prevent  
access, and only limits traffic from content providers -- most of them  
illegal -- which use delivery methods that abuse Comcast's network)  
nor that legitimate content providers are failing to reach their  
audiences.

Also, were Comcast ordered to rip out all of its network management  
equipment without having time to engineer replacements, millions of  
consumers' Internet service will be impacted by congestion due to P2P.

Finally, given the slowness of the courts, it seems unlikely that the  
suits would even be considered before the deadline which the FCC gave  
Comcast.

So, why is inside-the-Beltway lawyer Harold Feld filing the suit "on  
behalf of" multiple lobbying groups? I've asked several attorneys, and  
they say that the likely motivation is to head off, delay, or  
otherwise "monkey wrench" the serious and well deserved challenge to  
the ruling by Comcast. I suspect that these multiple frivolous  
lawsuits, all in different circuits, are intended to keep review of  
the FCC's decision out of the DC Circuit, which has been the most  
willing to challenge the legality of the FCC's rulings. (If they are  
consolidated with Comcast's challenge, the case might be heard in a  
different circuit -- or, if they proceed independently, they might  
produce differing results which would require Supreme Court review.)  
In short, the suits appear to be a procedural move to hinder serious  
reconsideration of the flawed (and, IMHO, illegal) FCC order.

One can only hope that the courts will recognize this and throw them  
out. One can also hope that organizations such as PennPIRG and  
Consumers Union will come to their senses and recognize the anti- 
consumer effects which the FCC order has already had -- including  
bandwidth caps, surcharges, and deterrence of would-be investors in  
competitive broadband solutions. These organizations should not, IMHO,  
be spending their money on lawsuits and diversionary tactics that harm  
consumers.

--Brett Glass





-------------------------------------------
Archives: https://www.listbox.com/member/archive/247/=now
RSS Feed: https://www.listbox.com/member/archive/rss/247/
Powered by Listbox: http://www.listbox.com