FCC Chair Pushes for Comcast Censure
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Martin issued a draft order charging Comcast (NASDAQ: CMCSA) with acting against the FCC's three-year-old Internet principles. The order will come up for a vote at the agency's next open meeting on Aug. 1.
The move is the latest turn of events in a saga that has pitted Comcast against critics who allege that the company violates Net neutrality -- the principle that all Internet traffic should be treated equally -- by restricting certain kinds of traffic without adequate notice.
Comcast has maintained that the charges against it are overstated, and that the policies it imposes on traffic aim only to ensure the smooth operation of its network.
"We've never blocked any Internet content. We were and still are managing peer-to-peer content," Sena Fitzmaurice, a spokeswoman for the company, told InternetNews.com. "Even when you're getting managed, the majority of the time -- 80 percent of the time -- it's still going through within a minute."
Though it does not seek to impose any fines, the FCC order would require the ISP to change the way it handles traffic on its network. It would also have to provide the agency with compliance updates and improve the notice it provides subscribers, FCC spokesman Robert Kenny told InternetNews.com.
"The chairman has said that Comcast violated the Internet service principles that were set forth by the commission back in 2005," Kenny said. "They were arbitrarily blocking certain content."
"The chairman wants to ensure that moving forward in these cases when companies are making effort to manage their networks that they fully disclose the limitations of the bandwidth use to their subscribers so they know exactly what they're paying for."
In February, Comcast amended its terms of service to give greater notice about its traffic management, but Kenny said it still wasn't enough.
In addition to forcing changes by Comcast, Martin's proposed order could set the stage for a major victory for Net neutrality supporters. The Republican chairman's support of a position long advocated by the FCC's two Democratic commissioners suggests that the order might win a majority when put to a vote before the five-person commission.
The FCC's review of Comcast's network management stems from a complaint filed by the nonprofit advocacy groups Free Press and Public Knowledge in response to the discovery that Comcast had been slowing traffic from the peer-to-peer site BitTorrent.
On word that Martin's draft order was coming, Free Press declared that consumers were "poised for victory against Comcast."
"The FCC now appears ready to take action on behalf of consumers," Marvin Ammori, general counsel for the group, said in a statement. "This is an historic test for whether the law will protect the open Internet."
Litigate before you regulate?
There remains considerable debate over the FCC's legal authority on the matter, however. Fitzmaurice argued that the FCC's 2005 Internet service principles "did not create enforceable rules."
The principles, which assert that consumers should be able to access "lawful content of their choice" on the Internet, were issued as a policy statement. Fitzmaurice argued that since they did not go through the FCC's rulemaking process, they do not give the agency a mandate.
Moreover, the FCC issued the principles with the caveat that they are subject to "reasonable network management," which is what Comcast says it has been doing all along.
Free Press recently clarified its legal opinion on the matter, claiming that the FCC has the authority both by virtue of the 1934 Communications Act that established the agency, and because the review of the Comcast case came out of its complaint process.
Martin agrees with that interpretation and has long maintained that the FCC has the authority to act to uphold the principles, though there is no consensus on that point within the commission.
Blair Levin, an analyst with Stifel Nicolaus and a former senior FCC staffer, wrote in a research note that he expects the draft order to win approval, but looks ahead to a legal challenge from Comcast over the FCC's authority.
"We expect the order will provoke a significant debate at the FCC, though in the end, we think the majority will agree to the general conclusions of the order as circulated by Mr. Martin. But the commission will not be the last word," Levin said, citing the "unsettled legal landscape."
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