Comcast and Free Press continue feuding at the FCC (CD July 21 p11) over whether the agency has authority to find that the cable operator violated commission net neutrality principles, as Free Press claimed in a filing on Comcast’s network management. In a Monday letter to the FCC Comcast said it meant its communique to “re-emphasize the fundamental legal flaw in Free Press’ demand” that the FCC act: “There is simply no law, and no lawful basis to promulgate any new legal standard to be enforced.” Section 230(b) of the Communications Act and 706(a) of the Telecom Act, both of which Free Press “now focuses” on, “confer no rights or enforceable duties on subscribers or broadband providers, and do not expand the agency’s statutory authority in any way,” said Comcast. “The absence of any potentially applicable law prevents the Commission from taking any action on the Complaint.” If it did act, the FCC could violate the Administrative Procedure Act and the due process clause of the Constitution, Comcast suggested. Friday, officials from Free Press and other network neutrality proponents met with Commissioner Jonathan Adelstein to discuss “the strongest jurisdictional bases for the Commission to issue a show-cause Order,” said an ex parte. “We also discussed several of the meritless arguments that Comcast and its allies have raised in its attempt to delay the Commission’s action.” Another letter from Comcast to the FCC said the cable operator’s network management, similar to that of other ISPs in the U.S. and other countries, isn’t discriminatory. Comcast broadband customers “can and do access any content, run any application, and use any service that they wish,” said the cable company.
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.
Sponsors of legislation designed to bring more universal service fund (USF) dollars to western states said Wed. they would seek to attach the bills as riders to other legislation in an effort to see it passed this year. Sen. Smith (R-Ore.) (S-1380) and Rep. Terry (R-Neb.) (HR-1582) said while time was running out this congressional session, their bills enjoyed considerable support and could find passage as a rider to another legislative vehicle. Terry said House Commerce Committee Chmn. Barton (R-Tex.) was now a co-sponsor of the bill and Smith said Senate Commerce Committee Chmn. McCain (R-Ariz.), an original co-sponsor, was “pushing aggressively” to have the measure moved through the Senate. The bills are designed to redistribute the so-called “non- rural” section of USF, about $230 million yearly, to more states. The non-rural fund goes to ILECs (including some non-RBOC ILECs) that serve rural customers. Currently, the lion’s share of the funding goes to Miss., which receives about $120 million, and the rest is split among 7 other states, leaving 42 states ineligible for funding. Smith, Terry and other supporters of the bills have called the funding formula “unfair” and the 10th U.S. Appeals Court, Denver, remanded the funding scheme to the FCC. Both Qwest (which has made the most vigorous push for the bill) and SBC have challenged the FCC’s recently revised scheme, which doesn’t significantly change the distribution pattern. Smith and Terry were optimistic about the chances that the bill could be added to another legislative vehicle and an industry source said the lawmakers have reached out to key members on appropriations and other committees to help move the bill forward. Things have improved for Terry’s bill since Rep. Tauzin (R-La.) vacated his chmn. position. Tauzin, as have some others, said the issue should be dealt with in comprehensive USF reform. “This bill should be adopted today,” Terry said. USF reform, which will be a hot topic in Congress next session, will be a long process, Terry said, but there’s support for this legislation now. But Terry alluded to one “Mississippi representative” who didn’t understand the inequities of the issue. Terry was likely referring to Rep. Pickering (R-Miss.), the vice chmn. of the Commerce Committee. The House bill has 79 co-sponsors, while the Senate version has 31, including the recent addition of Senate Minority Whip Reid (D-Nev.). Neither bill has been marked up or even had a hearing, though the measures have been addressed in other USF-related hearings. Smith said it would have been preferable to have the bill marked up, but said in the Senate, “it doesn’t seem to matter.” He said there were at least 2 appropriations bills that it could be attached to and that the “political season” could produce other bills suitable for attachment.