NBCU, NCTA Back Comcast In Suit Against FCC


NBC Universal and the National Cable & Telecommunication Association this week filed a brief supporting Comcast in its lawsuit challenging the Federal Communications Commission's finding that the operator violated the agency's Internet policies.

NBCU and NCTA, echoing Comcast's position, said the FCC order in August 2008 demanding that the MSO discontinue throttling bandwidth available to peer-to-peer software was "arbitrary and capricious," didn't follow necessary procedural requirements and exceeded the agency's legal authority.

"The statutory provisions upon which the order relies do not give the FCC the authority to adopt the standards governing ISPs' broadband network management practices at issue here," their brief said.

The NBCU and NCTA filed their joint brief Aug. 10 in the U.S. Court of Appeals for the D.C. Circuit. Comcast filed its brief July 27.

Comcast sued the FCC last September in the appeals court for the D.C. Circuit, which has previously reversed major policy actions by the agency.

The FCC issued the order under then-chairman Kevin Martin, who had initiated a probe of Comcast's network-management practices at the behest of several public-interest groups.

The NCTA, NBCU and Comcast said cable providers historically have relied on the flexibility afforded by the lack of FCC restrictions on network-management practices.

"Cable ISPs have always had significant discretion in designing and deploying network management practices to protect their networks, and they have used that flexibility to accommodate the exponential growth of Internet usage over the past decade," NBCU and NCTA said in their filing. "The order abruptly departs from this regime, jeopardizing the continued ability of network operators to manage their networks and precluding their ability to do so in a way that avoids potential legal liability for their decisions."

Last August, two FCC commissioners -- Republicans Robert McDowell and Deborah Taylor Tate -- voted against the order and expressed concern that the agency was regulating the Internet for the first time without proper authority.

"[U]nder the analysis set forth in the order, the Commission can apparently do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment," McDowell said in a dissenting statement.

According to the NCTA, fewer than 5% of Internet users consume as much as 70% of all available bandwidth using P2P applications, and P2P consumption of bandwidth can be as much as 95% of capacity during peak periods.

The trade group has estimated that -- in the absence of congestion-management mechanisms -- the cost of continually upgrading broadband networks to eliminate all capacity constraints would be $9.3 billion per year.

Even as Comcast challenged the FCC order in appeals court, the MSO moved to a "protocol-agnostic" network-management approach that limits bandwidth to individual subscribers if they exceed a certain threshold, rather than cutting upstream access to BitTorrent or other P2P applications.

NBCU and NCTA, in their brief, also repeated the claim that "P2P technologies are today used primarily to facilitate the exchange of a tidal wave of illegal content."

The FCC's brief is due by Sept. 21, with a deadline for final briefs of Nov. 23. The case, captioned Comcast Corporation v. Federal Communications Commission and United States of America, is docket number 08-1291.