Comcast Combats BitTorrent Call

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Comcast characterized the Federal Communications Commission as a winded fighter on the ropes in its version of the battle over the agency’s BitTorrent decision that found the top U.S. cable operator in violation of the agency’s network-openness principles.

The company also suggests that the commission dealt a self-inflicted blow to its own argument by adopting last week’s network neutrality Notice of Proposed Rulemaking to turn its policy statement into “enforceable rules.”

In reply comments filed with the U.S. Court of Appeals for the D.C. Circuit, Comcast said that in the BitTorrent order, the commission “bobs and weaves,” “ducks the threshold issue” and “audaciously embraces” the point that “nothing more than policy underlies the order.”

Comcast argued that the FCC violated “basic rules of fair notice” because the conduct it targeted — reducing peer-to-peer traffic on the network — did not violate any FCC rules.

“[T]he unenforceability of the Policy Statement has now been confirmed by the initiation of a rulemaking to establish the Policy Statement (and two new principles, including nondiscrimination) as enforceable regulations,” Comcast said in its brief.

Comcast also argued that the FCC’s invocation of “virtually the entire Communications Act” for its authority is a regulatory theory that “would free the agency of any meaningful statutory limits on its power, restrict Congress’ role to prohibiting agency action rather than, as present law establishes, authorizing such action.”

The company took umbrage at the FCC’s argument that the order was “modest,” calling it “an exercise in revisionist history.”

While Comcast maintains that it did nothing wrong but voluntarily agreed to discontinue the network management practice at issue. Nonetheless, the FCC held that Comcast violated “federal Internet policy”; mandated that the company cease the challenged practices by Dec. 31, 2008; asserted continuing jurisdiction over the company’s network management practices; and threatened further sanctions for failure to comply.”

Final joint briefs are due Nov. 23, according to Comcast. Comcast executive vice president David Cohen told reporters that he did not expect a decision sooner than the second quarter at the earliest.

The court last week set Jan. 8 as the date for oral argument. It will be before a three-judge panel. NBC Universal is an intervenor in the case, according to the court, likely on the issue of network management as it relates to piracy. Intervenor briefs are due Monday, Nov. 2, according to Comcast.

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