News

NBCU, NCTA Back Comcast

11/07/2009 2:00 AM Eastern

NBC Universal and Comcast have already come together, at least on the issue of the Federal Communications Commission’s decision in the BitTorrent case.

NBCU joined with the National Cable & Telecommunications Association last week to support Comcast’s court challenge of a Federal Communications Commission decision that Comcast had violated its open-access Internet guidelines in managing traffic from the peer-to-peer file-sharing service.

They also countered FCC arguments that they did not have standing to intervene in the case, being heard by the U.S. Court of Appeals for the District of Columbia Circuit.

Was NBCU protecting a future partner? Executive vice president and general counsel Rick Cotton had no comment on the reported negotiations between Comcast and NBCU, but said: “These policy decisions and discussions all took place long before there was any contemplation of any potential transaction.”

On Jan. 8, the D.C. Circuit will hear oral arguments on Comcast’s challenge to an FCC ruling which held that the Philadelphia-based MSO violated open-access guidelines by managing or blocking BitTorrent peer-to-peer Internet traffic. Comcast has said it did nothing wrong, but later changed the way it managed that traffic.

NBCU said in the court brief the commission’s Comcast-BitTorrent decision “shackles” Internet service providers’ pursuit of online piracy.

NBCU also said the decision left network operators guessing about what constituted reasonable network management and was undercut by the proposed network-neutrality rulemaking.

The NCTA and NBCU repeated last week that the order, by creating binding legal norms for network management for all ISPs via an order, rather than a rulemaking, violated the Administrative Procedures Act and due process.

As to legal standing, the NCTA said it represents Internet-service providers that will be regulated by the order going forward and NBCU said it’s a content provider hurt by the potential chilling effect the order has on efforts to combat illegal content piracy.

Both parties also said that the FCC dealt a blow to its own case via the proposed rulemaking on network neutrality it just launched.

“Just a few weeks ago, in moving to establish the principles of the Policy Statement as enforceable rules, the FCC stated that it 'recognize[s] the importance of preserving and protecting broadband providers’ flexibility to manage their networks in a way that benefits consumers and will further the safety, security, and accessibility of the Internet’ and that it is seeking to 'provide greater clarity regarding the Commission’s approach … [and] to provide greater predictability,’” the companies said.

One reason FCC chairman Julius Genachowski cited in proposing to codify and expand the FCC’s Internet access policy guidelines was to clear up legal questions about their enforceability — questions raised by Comcast and seconded by NBCU and the NCTA.