Uncommon Wisdom

Jan 11 2010   5:24PM GMT

Comcast/FCC P2P dispute goes to court with net neutrality implications

Tom Nolle Tom Nolle Profile: Tom Nolle

Comcast’s dispute with the FCC on P2P management and net neutrality has made it to federal court, and so far things aren’t looking good for the FCC. The FCC had ordered Comcast to cease P2P management practices the provider had already stopped using when the practice was publicized, citing the FCC’s four net neutrality principles published in 2005.

At the time these were published, we noted that they were outside the FCC’s rule-making process and thus were simply stating a principle that the FCC believed it had authority to impose. It is our view that the FCC has at least some authority, but the question is whether it has enough and whether the courts agree.

One interesting discussion came when the FCC noted the courts could ignore the authority question and offer “guidance,” which the judges rejected, saying they tried cases not offered guidance. The tone, in our view, suggests the FCC will lose at least in part. Although such a loss will be ballyhooed by the media as a disaster for the Internet, it’s not likely to have any impact except to spur both a formal FCC order and legislation to enshrine the principles in law.

There is already an NPRM on net neutrality working its way through the FCC process, in fact. The FCC has also asked Congress to give it more time (an extra month) in crafting the national broadband plan, delaying the delivery to March 17th. This extension is virtually certain to be granted, and the fact the request was made one day before the appeal hearing on the Comcast matter is interesting.

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