Free Press Network Management Filing May Bolster FCC Probe
If FCC Chairman Kevin Martin and his colleagues are looking for legal arguments to conclude that Comcast’s slowing of peer-to-peer file transfers broke agency rules, a filing by Free Press may help, according even to some cable attorneys who disagree with the group’s stance. Late Thursday, Free Press made a 112-page filing with the commission in which it laid out seven provisions of the 1996 Telecom Act it said gave the FCC authority to prevent Internet service providers from engaging in “unreasonable discrimination” against Web content. Title 1 of the Act gives the commission the right to ensure networks are operated “'in a neutral manner,'” it said.
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Such arguments may influence Martin’s thinking on whether to take action against Comcast, which has said it violated no FCC rules, said cable and other industry lawyers and Free Press General Counsel Marvin Ammori. Those lawyers disagree with Free Press’s claim that slowing down data- intensive file transfers to prevent broadband networks from being ground to a halt by so-called bandwidth hogs amounts to discrimination. But they said the filing could give Martin ammunition to find the cable operator broke FCC rules, should he decide the evidence goes against Comcast. Free Press cited Sections 1, 230(b)(3), (2) and (1) of the Act, as well as 256, 521 and 706. Five of those sections are referred to by the FCC in its network neutrality policy statement, said the group.
Statements by the Supreme Court, President Bush, Verizon, all FCC members and Comcast in other venues show the FCC has “ample Title 1 authority” to act, said Free Press. “If the Commission did not, the Commission would likely be unable to preempt state regulation regarding broadband discrimination, resulting in varying state-level network neutrality regulations that the Commission could not attempt to standardize.” The chairman could use the Free Press document as a template of sorts for a fine or other action against Comcast, as he’s seemed to have done with filings in other contexts, said a communications lawyer. But the FCC’s review of network management isn’t likely to be concluded soon, said lawyers. Martin has “said all along and maintains that the commission has the authority to enforce the principles through complaint investigations,” an FCC spokesman said.
Comcast cited Title 1 in comments March 14 to the U.S. District Court in San Francisco in contending that the commission, not the judiciary, should handle complaints under the FCC’s network neutrality policy statement, said Free Press. “In urging the court to stay the case, Comcast writes that the conduct at issue in that case ‘falls squarely within the FCC’s subject matter jurisdiction,'” it said. “We are encouraged by Comcast’s admission.” A Comcast spokeswoman didn’t reply to a message seeking comment. NCTA declined to comment, said a spokesman.
Lack of Title 1 authority for the FCC was “the open, unresolved question that Comcast was pushing the hardest on” at the commission, Ammori said in an interview. “I think the commission would be upheld on appeal if it rested its decision on the bases in the memoranda” he filed with the agency, Ammori added. “It’s a big sort of threshold issue that hasn’t been resolved yet.”