- The Washington Times - Monday, July 14, 2008

COLUMN:

A federal judge in California recently put the brakes on a customer lawsuit against Comcast Corp. pending action by federal media regulators in the latest iteration of the debate over network management.

The decision by U.S. District Judge Phyllis J. Hamilton to grant a stay in the dispute is not without controversy, however, as some are accusing the Internet provider of inconsistency when it comes to its views on the Federal Communication Commission’s power to regulate network management practices.

Comcast has previously challenged the agency’s authority with respect to enforcing so-called “net neutrality,” arguing that a series of principles issued by the FCC in a 2005 policy statement did not carry the weight of an enforceable rule. But in its filings with the court, the Philadelphia cable giant based its request for an injunction on the grounds that the authority to regulate Internet traffic rests with the commission, and the U.S. District Court for Northern California should wait until the FCC acts.

Jon Hart, a Comcast subscriber in Alameda County, Calif., is suing Comcast for misleading advertising in its promotion of its high-speed Internet service without the disclosure that BitTorrent and other peer-to-peer file-sharing applications could be slowed by Comcast engineers as part of the company’s network management practices.

Such practices are not illegal, since there is no law requiring Internet providers to treat all forms of Internet traffic equally - as proponents of “net neutrality” would like - but the FCC several years ago issued a policy statement on the matter that called for consumer freedom in using the applications of their choice.

The FCC is investigating a complaint against Comcast over whether the Internet giant’s slowing of BitTorrent, revealed by an Associated Press investigation last year, constitutes a violation of its policy statement. To that end, the commission has held two hearings on the subject of network management and has scheduled a third.

Jef Pearlman, a staff attorney for the consumer advocacy group Public Knowledge, points out that Comcast has argued in its filings with the commission that the agency doesn’t have broad legal authority on the issue.

Fast forward to a Comcast brief on the Hart case filed in March: “Because that conduct falls squarely within the FCC’s subject matter jurisdiction, this court should stay this action and allow the FCC to make an initial determination regarding the reasonableness of [peer-to-peer] management.”

In a blog post last week, Mr. Pearlman accused Comcast of duplicity.

“In the future, look for Comcast to argue that their filings in a California lawsuit can’t be used against them in an FCC proceeding,” he said on the Public Knowledge policy blog. “Also watch for them to say that the two are consistent anyway, because the commission has jurisdiction, but not the authority to act. Huh?”

But Comcast spokesman Joe Waz, in a comment on Mr. Pearlman’s post, disputed the insinuation of hypocrisy, calling it an attempt to obfuscate the company’s position on FCC authority.

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