ISP claims FCC has no authority to regulate Comcast's "network management" practices

Comcast continued its resistance to FCC interference last week, with Vice President David L. Cohen firing a strongly-worded and thinly-veiled shot across the FCC’s bow.

“The congressional policy and agency practice of relying on the marketplace instead of regulation to maximize consumer welfare has been proven by experience (including the Comcast customer experience) to be enormously successful,” wrote Cohen in a letter (PDF) filed March 11. “Bearing these facts in mind should obviate the need for the Commission to test its legal authority.”

Cohen proceeded to pick apart the FCC’s authority, pointing out that the bureau’s own policies prohibit it from acting because they have “no force of law.” He cited the 2002 Cable Modem Declaratory Ruling, which classified cable modem service as an “information service” instead of a “common carrier,” therefore exempting Comcast from the FCC’s authority as codified in the Telecommunications Act of 1996 – a status upheld by the Supreme Court in the 2005 Brand X decision.

“Any attempt to justify an injunction on Comcast based on a statutory provision that is explicitly limited to common carriers would violate the Communications Act and be arbitrary and capricious,” wrote Cohen.

Cohen further argued that a sudden shift in FCC policy would violate the Administrative Procedures Act, noting that the FCC is not permitted to “switch abruptly from an explicit policy of relying on market forces” to a “new regime” where ISP decisions are “subject to governmental second-guessing and disruption.”

Comcast earned the FCC’s scrutiny in 2007 after it was discovered that the company took an intrusive, novel approach to controlling users’ BitTorrent usage, effectively cutting off users from using the service at reasonable speeds. Fouling up its attempts to explain itself, Comcast quickly earned a fierce public outcry and the attention of the FCC.

Comcast has since made it clear that it is not interested in the FCC’s interference, hiring seat warmers to sit in during an awkward meeting that saw the company grilled on its “reasonable” network policies.

FCC Chairman Kevin Martin appears unfazed by Comcast’s responses. Referring to Comcast’s dodging-the-question when asked about its network policy, Martin attacked it directly: “A hallmark of what should be seen as a reasonable business practice is certainly whether or not the people engaging in that practice are willing to describe it publicly.”

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