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Why Comcast will win the Net neutrality battle

No, it might not prevail in the war, but the cable giant appears to be on solid footing after a court hearing last week, when a panel of federal judges heard with pointed skepticism arguments from the Federal Communications Commission and one of its intervenors justifying its legal authority to censure Comcast for secretly blocking legal Web content in 2008.

As the court considers this case, it's not concerned with Comcast was right or wrong to throttle BitTorrent traffic. Instead, it's concerned with whether the FCC acted within the bounds of its authority to issue its ruling. Based on their pointed line of questioning last week, it appears the judges seem convinced that it did not.

That's because the FCC predicated its rebuke of Comcast on an Internet policy statement, which is a different animal than binding and clearly enforceable commission rules.

"Some activists insist that Comcast's challenge to the FCC is 'a fight about net neutrality.' That's simply not true," Comcast Executive Vice President David Cohen wrote today in a blog post. "The primary basis for our challenge, and the basis on which we hope the court will decide this case, is that no federal agency can subject any company or individual to sanctions for violation of federal standards when there was no law in the first place. This is a basic issue of fair notice, regardless of the issue at stake."

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