Washington—Comcast Corp. on Thursday sued the Federal Communications Commission in a federal appeals court over the agency’s recent finding that the cable company had mismanaged its broadband network while consumers traded large video files over the Internet.
Comcast wants the FCC’s decision reversed on grounds that the agency failed to base its decision on previously adopted rules or standards.
“We are compelled to appeal because we strongly believe that, in this particular case, the [FCC’s] action was legally inappropriate and its findings were not justified by the record,” said Comcast executive vice president David Cohen in a prepared statement.
Comcast filed in the U.S. Court of Appeals for the D.C. Circuit, a tribunal that has a history of reversing major policy actions by the FCC.
On Aug. 1, the FCC, in a 3-2 vote, ordered Comcast to cease delaying file sharing or peer-to-peer applications that consumers run over its broadband network. A popular peer-to-peer application called BitTorrent is frequently used to exchange large video files that can slow down Internet access for many other Comcast customers.
FCC chairman Kevin Marin, a Republican, joined FCC Democrats Michael Copps and Jonathan Adelstein in deciding to brand Comcast as an Internet renegade.
Republicans Robert McDowell and Deborah Taylor Tate, casting dissenting votes, expressed concern that the FCC was regulating the Internet for the first time based on less than compelling evidence of foul play.
“I am disappointed by Comcast’s decision to appeal,” Martin said in a statement released late Thursday. “When the Commission approved the Adelphia transaction, we put Comcast on notice that we would act upon complaints that the company was willfully blocking or degrading Internet content, and Comcast nonetheless chose to close on that deal. Now, little more than two years later, Comcast has gone to court to contest the Commission’s authority to act on precisely the type of complaint discussed in the Adelphia order.”
The FCC—which gave Comcast until Dec. 31, 2008 to comply with its cease and desist order—said Comcast's network management techniques were inconsistent with the agency’s August 2005 Internet policy statement. Comcast has until Sept. 19 to disclose where it was delaying P2P traffic and how it intends to meet the end-of-the-year deadline.
“We intend to make the required filings and disclosures, and we will follow through on our longstanding commitment to transition to protocol-agnostic network congestion management practices by the end of this year," Cohen said.
Meanwhile, the Media Access Project, a public interest law firm, filed related suits in three different courts of appeals on behalf of Vuze Inc. (Ninth Circuit), Consumers Union (2nd Circuit); and PennPIRG (3rd Circuit).
Although MAP’s clients hailed the FCC’s action against Comcast, they want the courts to eliminate the FCC's Dec. 31 deadline and make Comcast comply with the agency’s order immediately.
“Comcast can very easily drag this out at least until we get into a new FCC,” said MAP attorney Harold Feld (right). “Who knows? They may be able to get the FCC to continue to delay and never actually give us the injunctive relief that we asked for.”
In his statement, Martin went on to say that he was “pleased” Comcast would comply with the FCC’s order and disclose its new network management practices, adding that “given Comcast’s past failure to disclose its network management practices to its customers, it is important Comcast to the many still-unanswered questions about its new management techniques.”
“The Commission needs to understand the answers,” he added. “Perhaps more important, Comcast’s subscribers deserve to know the answers."