Comcast Appeals

Comcast has appealed the FCC’s crazy order in the DC Circuit today. Here’s the statement:

Although we are seeking review and reversal of the Commission’s network management order in federal court, we intend to comply fully with the requirements established in that order, which essentially codify the voluntary commitments that we have already announced, and to continue to act in accord with the Commission’s Internet Policy Statement. Thus, we intend to make the required filings and disclosures, and we will follow through on our longstanding commitment to transition to protocol-agnostic network congestion management practices by the end of this year. We also remain committed to bringing our customers a superior Internet experience.

We filed this appeal in order to protect our legal rights and to challenge the basis on which the Commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules. We continue to recognize that the Commission has jurisdiction over Internet service providers and may regulate them in appropriate circumstances and in accordance with appropriate procedures. However, we are compelled to appeal because we strongly believe that, in this particular case, the Commission’s action was legally inappropriate and its findings were not justified by the record.

It’s a little odd that they have to appeal to resolve the procedural irregularities despite planning to follow the order anyhow. But that’s life.

Media Access Project has already filed appeals in the 2nd, 3rd, and 9th circuits, in an attempt to create a jurisdiction fight that would have to be resolved by the Supremes. MAP wants the court to waive the phase out period for Comcast’s Sandvine system, but that’s simply a pretext for the jurisdiction fight.

Story in Broadcasting and Cable.

4 thoughts on “Comcast Appeals”

  1. Comcast is absolutely right to challenge the FCC's order. By issuing the order and attempting to enforce a “policy statement” which it had previously dubbed unenforceable, the FCC did an end run around its OWN rule making process.

    In fact, it's still quite unclear what the rules are. Can a landlord, or the owner of a coffeehouse, restrict what is done with an Internet connection that he or she provides to customers? What can ISPs do to restrain bandwidth hogs? Can they throttle a CLASS of application (e.g. P2P) rather than just one application (e.g. BitTorrent)? Can they restrict users from running servers? What disclosures are they required to make? And if they do disclose what they are up to, can they block abusive behavior? The Constitution prohibits vague laws, and the FCC order was issued pursuant to a vague policy statement that wasn't even billed as enforceable, much less a rule or a law. And the FCC didn't commence a rule making procedure in which the public could comment on, and point out problems with, proposed rules.

    For a list of 20 questions which demonstrates just how vague the FCC's order is, and how much confusion it creates in the industry, see

    The FCC (or three of the five Commissioners, at any rate) also conveniently forgot that if Congress sets a policy and puts that policy into statute, it trumps any policy that the FCC might dream up. The policy set by Congress, which is at 47 USC 230(b), says that the Internet shall remain “unfettered by State or Federal regulation.” This trumps any policy statement that the FCC might want to draft or enforce.

    The Administrative Proceure Act bars regulatory agencies from becoming dictatorial — arbitrarily issuing orders without first making rules and informing the public of them. And these agencies cannot overrule Congress under any circumstance, as the FCC has tried to do in this case by enforcing a policy statement which contradicts the policy that was put into law by Congress. Comcast should prevail in this case; it would be a good thing for all of us.

    As for the Media Access Project: what happened is simple. Inside-the-Beltway lawyer and lobbyist Harold Feld — whose ethics are, IMHO, on a par with those of his peer Jack Abramoff, another DC lawyer/lobbyist — filed frivolous lawsuits in multiple circuits in an attempt to divert the case from the most appropriate one to hear it. It is good that this unethical effort to sabotage the legal process failed.

  2. By the way: Feld has also blocked postings to his blog from the IP addresses used by all of my ISP's customers, simply because he did not like the fact that I posted cogent, well reasoned refutations of some of his postings. Not exactly a sterling example of either access to media, free political speech, or “network neutrality.”

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