Comcast Files Petition for Review of FCC's Network Management Practices Order

September 4, 2008. Comcast filed with the U.S. Court of Appeals (DCCir) a pleading titled "Petition For Review And, In the Alternative, Notice Of Appeal". It challenges the Federal Communications Commission's (FCC) August 1, 2008, order asserting authority to regulate the network management practices of Comcast and other broadband internet access providers.

The August 1 order pertains to Comcast's management of certain peer to peer traffic. However, the penalties imposed are not significant. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008.

The FCC released the text [67 pages in PDF] of its order on August 20, 2008. It is FCC 08-183 in Docket No. 07-52.

The just filed pleading is a short document that does not disclose legal arguments.

However, David Cohen, EVP of Comcast, stated in a release that "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."

He also stated that "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", wrote Cohen.

In addition, prior to the FCC's decision, Comcast filed comments with the FCC that address its legal authority to regulate network management practices. See for example, comment [57 pages in PDF] dated July 10, 2008, and comment [8 pages in PDF] dated July 21, 2008.

While Comcast has not yet fully disclosed the grounds for its challenge, the FCC's statutory authority, and the procedure that it followed in the case, could give rise to numerous arguments.

The Congress has enacted no statute that prohibits any network management practices (NMPs) of broadband internet access providers (BIAPs). The Congress has enacted no statute that delegates authority to the FCC to regulate the NMPs of BIAPs. The FCC has promulgated no substantive rules that regulate NMPs of BIAPs. The FCC has promulgated no procedural rules that govern its adjudicatory proceedings pertaining to the NMPs of BIAPs.

The FCC order asserts that it acted pursuant to a November 1, 2007, filing [48 pages in PDF] of the Public Knowledge (PK) and Free Press (FP) captioned "Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".

The FCC order further asserts that Comcast violated its short policy statement [3 pages in PDF] adopted in August of 2005, and that the FCC has authority to enforce this policy statement pursuant to the concept of Title I ancillary authority.

The order sites the Supreme Court's June 27, 2005, opinion [59 pages in PDF] in NCTA v. Brand X, upholding the FCC's determination that cable broadband internet access service is an information service. See story titled "Supreme Court Rules in Brand X Case" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The Supreme Court did state that the FCC has Title I ancillary jurisdiction with respect to cable modem service. The Court wrote that the FCC "remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction". Although, the issue before the Supreme Court was only whether the FCC could classify cable modem service as a Title I information service.

The 2005 policy statement, which was adopted shortly after the Brand X opinion was issued, states that "To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice ... to run applications and use services of their choice, subject to the needs of law enforcement ... to connect their choice of legal devices that do not harm the network ... to competition among network providers, application and service providers, and content providers." (Footnotes omitted.)

The FCC wrote in its order that Comcast's "discriminatory and arbitrary practice unduly squelches the dynamic benefits of an open and accessible Internet and does not constitute reasonable network management".

Gigi Sohn, head of the PK, stated in a release that "We expected Comcast would appeal the Commission's order. The company opposed it every step of the way, even as they failed to disclose their throttling of Internet traffic. We believe the Commission will prevail and the rights of Internet users will be protected."

Comcast's petition is signed by Helgi Walker of the law firm of Wiley Rein. The other attorneys listed on the petition are Eva Reed (Wiley Rein), David Murray and James Casserly (Willkie Farr & Gallagher), and David Solomon (Wilkinson Barker & Knauer).