Celebrity Deathmatch – Comcast vs FCC

The FCC is getting hauled into court, by Comcast no less, because that company doesn’t believe that the FCC actually has the power to stop their evil ways.

The dispute arose when the FCC acted last year, putting a stop to the P2P throttling, and other tricks, that Comcast was doing to its subscribers.

I would say that this comes at a terrific time, exactly  when we, as a nation, are finding out that our FCC administrators have finally found out that they do wield some power, and can affect positive change.

Comcast must think that it can, in some way, win in the court of public opinion – no, wait, they must simply be nuts!

from Ars Technica

The Federal Communications Commission has taken on the tricky legal task of asserting its authority over the Internet, telling an appeals court that, contrary to what Comcast says, the FCC did too have the legal power to sanction the ISP for BitTorrent throttling last year. Comcast is suing the agency over the move.

“Congress created the FCC for cases such as this one. Congress gave the agency broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies,” the FCC wrote on Monday in a brief submitted to the United States Court of Appeals Before the District of Columbia Circuit. “The Internet is such a technology.”

This could be a tough sell for the DC Circuit, given that on the same day as the filing, FCC Chair Julius Genachowski called for the agency to turn its Internet Policy Statement into full-fledged net neutrality rules, along with new principles of transparency and non-discrimination. The policy statement commits the Commission to ensuring that consumers can use the legal applications of their choice on the ‘Net. But critics say that it’s just a guideline-type philosophical statement and nothing more, and it lacks the Congressional backing needed to stand up in court.

Though it would seem that this is a simple case of a government agency having the final word – with the only possibility of change coming through the Supreme Court, it is not that easy.  The convoluted logic of legal doctrines is making this a less than quick decision. (It also shows that the business of determining what is right should not be a ‘tricky legal task’.)

Just to give Ars readers a sense of how squirrely this case has already become, here’s one of the more interesting legal arguments in the FCC’s brief. The agency contends that the DC Circuit should throw out Comcast’s complaint based on the rule of “judicial estoppel”—if a party in a lawsuit has accepted a legal principle in the past, it can’t just switch its position later on because its interests have changed. The Commission’s response notes that back in 2007 when Comcast faced a class-action lawsuit in a Northern California district court alleging P2P interference, the company asked the court to “stay its hand under the primary juridiction doctrine” because the allegations in the suit were “within the subject matter jurisdiction of the FCC.”

The FCC was “actively reviewing the conduct” being complained about, Comcast added, actions that fell “squarely” within the Commission’s realm. So “this case,” claims the FCC, “presents a textbook circumstance for the application of judicial estoppel.”

Comcast anticipated this argument in its complaint against the FCC’s sanctions, arguing that its use of the “subject matter” phrase did not imply that the agency had enforcement power. The Commission obviously thinks otherwise. “The unmistakable import of Comcast’s argument to the trial court was that the FCC had the power to regulate Comcast’s conduct,” its brief contends.

And in indeed, the Northern California court accepted this argument, putting a stay on the case on the basis that Comcast’s “preliminary challenge to plaintiff’s complaint, on primary jurisdiction grounds, is well taken.” The judges concluded that the FCC was “already using its recognized expertise to consider some of the exact questions placed before the court here, in an effort to promote uniformity in internet broadband regulation.” That was at the point when the agency was in the later stage of evaluating the complaints filed by Free Press and Vuze against Comcast.

As the article states later, the problem  somehow is being made to revolve around legal entanglements, rather than a simple “Did Comcast do what is charged or not?” Legal obfuscation is getting to be a tool of any entity large enough to employ a legal staff that can do some research. It makes the simple idea of guilty or not guilty seem to go away never a good thing, and perhaps something more important to worry about than some interrupted transfers of meaningless content.

It begins to be crystal clear why we need a law of absolute net neutrality, as of 15 years ago.

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The true man wants two things: danger and play. For that reason he wants woman, as the most dangerous plaything.

Friedrich Nietzsche

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