Does the FCC have the authority after all?

MAP attorney Harold Feld has put together an interesting argument on the FCC’s authority to sanction Comcast over the BitTorrent management question:

If the FCC had said directly to Comcast: “If in the future evidence arises that any company is willfully blocking or degrading Internet content, affected parties may file a complaint with the Commission.” I would think we could all agree that this constituted “notice,” yes? Perhaps not notice of whether or not the behavior at issue constituted blocking or degrading — that is, after all — what the Commission determines in a complaint. But certainly if the FCC had told Comcast directly, to its face, no ifs and or buts, the above quoted line, I would hope we could all agree that Comcast had received reasonable notice that parties could bring complaints to the Commission, asking the Commission to determine whether the parties had behaved in an inappropriate manner.

Comcast rebuts this argument in a recent FCC filing.

IANAL so I don’t have an opinion on the soundness of Harold’s legal argument or Comcast’s rebuttal, but if Harold were correct, the argument would simply shift from authority to reasonable network management. The system Comcast was using made an a priori judgment that P2P was less worthy of all the bandwidth it wanted under load and unattended than interactive applications. This is not an unreasonable judgment, as a) it’s a bandwidth hog by design; and b) it was asking for more than the typical user was getting. But there are cases, to be sure, when a particular instance of P2P is not hogging, and they lead us to the empirical question about the link state at the time of the throttling. And that’s what I told the FCC in both my filing and my oral testimony.

I’m glad we have all these clever lawyers to resolve all these devious questions of authority, but wouldn’t it be simpler to know the rules in advance? That’s important because the terms like “degrade” are completely vague when we’re talking about a shared wire. Not managing P2P means that web browsers get degraded, and it makes no difference whether they’re degraded by ISP action or ISP inaction, so Comcast is screwed either way. That’s un-American.

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4 thoughts on “Does the FCC have the authority after all?”

  1. Actually, the lawyers from Comcast have completely refuted Harold Feld’s twisted and tenuous legal arguments. See

    Comcast has also published a truly excellent filing exploding — once again — the falsehoods which Free Press has promugated about its network management practices. That one’s at

    and is probably the best thing it’s written to date. (It’s a shame that Comcast is finally waking up and making good filings only at the last minute.)

  2. By the way, here’s another jurisdictional point that hasn’t come up yet and might deserve a separate heading in this blog. Suppose that Congress makes a policy statement (and includes it in a law), and then the FCC makes a policy statement. Which one takes precedence? Why, the one drafted by Congress, of course.

    Well, it turns out that Congress did make a broadband policy statement when it passed the Telecommunications Act of 1996. It’s at 47 USC 230(b), and it says:

    It is the policy of the United States—

    (1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

    (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

    (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

    (4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and

    (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

    It seems to me that this policy statement by Congress — which, unlike FCC Chairman Michael Powell’s, was not explicitly declared to be “nonbinding” — trumps any contrary policy statement made by the FCC.

  3. The statutory policy ays that the market for broadband services should be “unfettered by Federal and State regulation.” Powell’s policy statement (though it is nonbinding) would regulate ISPs’ terms of service and thus contradicts the statute.

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