Comcast challenges FCC's authority in sanction appeal

By Ed Oswald, BetaNews

September 5, 2008, 2:14 PM

In a filing Thursday with the US Court of Appeals in Washington, DC, the broadband service provider argued that the agency did not have the authority to impose sanctions in the first place.

The FCC's order did not fine Comcast, instead ordering the company to make changes to the way it handles traffic. Comcast had already agreed to make such changes on its own, including targeted throttling and a 250 GB cap on bandwidth per customer.

Comcast has made no secret that it believed the FCC does not have the authority to impose such sanctions. If the Internet is considered a telecommunications service, then its regulation falls under the Telecommunications Act, Comcast has argued, and it would indeed be the FCC's job to regulate it.

However, if the Internet is an information service, which opponents of net neutrality have argued -- and Comcast could easily be described as such -- then the regulation could actually fall under the Federal Trade Commission.

Another argument from Comcast is that there were no set rules for the cable provider to follow regarding control over its own network traffic. Moreover, it's arguing the FCC's sanctions against it were based on a list of network neutrality principles, not laws -- thus it had not broken any law.

"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," executive vice president David Cohen said in a statement. "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."

The conundrum over what the FCC should be enforcing, and to what degree, may be attributable to FCC chairman Kevin Martin. Instead of aggressive enforcement and cooperation with Congress on legislation, under Martin's stewardship, the agency has preferred merely to draft broader principles, and only take action when necessary.

The chairman said he was "disappointed by Comcast's decision to appeal," when asked for a reaction to Thursday's filing.