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FCC: Comcast contradicts itself in claim agency has no power over it

By | September 24, 2009, 7:59am PDT

Summary: The FCC files an appeal defending its right to sanction Comcast and objecting to the company’s very argument that the FCC has no “ancillary powers” over it.

What is odd is that Ars’ Matthew Laser thinks “one of the most interesting aspects” about Comcast’s legal claim that the FCC has no jurisdiction over it, is that the arguments are jurisdictional and precedential — not over the basic question of whether Comcast throttled BitTorrent.

This should be no surprise since Comcast has admitted — rather proudly — that it did, and that it has changed the practice.

The issue in this case is whether the FCC had he authority to issue its Order sanctioning Comcast for throttling. In its complaint, Comcast had argued that it had violated “no law” and the agency had no power to sanction it.

In its Order (PDF), the FCC explained that it had the power under its “ancillary powers” to regulate interstate and foreign communication.

Having lost in the district court the first round at the appeals court, Comcast took the issue to the full Court of Appeals for the D.C. Circuit, where Monday the FCC filed this brief (PDF). One of the agency’s key arguments: Comcast argued exactly the opposite in an earlier case and so should be “judicially estopped” from making the counterargument here.

When facing a class action lawsuit in California court on the same issue of P2P throttling, Comcast argued the court could not hear the issue because the FCC was taking action. They shouldn’t be allowed to now argue the FCC has no jurisdiction, the agency argued.

Comcast asked the district court to “stay its hand under the primary jurisdiction doctrine,” because “the very allegations that fuel this lawsuit” were before the FCC (in the proceeding now before this Court) and “are within the subject matter jurisdiction of the FCC.” The FCC “possesse[s] … both expertise and authority delegated by Congress [to] pass on issues within [its] regulatory authority,” Comcast assured the
district court. The agency “is actively reviewing the conduct that [plaintiff] complains about,” and “that conduct falls squarely within the FCC’s subject matter jurisdiction.” (Citations omitted.)

Compelling argument, but “interesting?”

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Topics

FCC, Agency, Comcast Corp., Federal Government, Government, Richard Koman

Disclosure

Richard Koman

http://government.zdnet.com/?page_id=3731

Biography

Richard Koman

Richard Koman is an attorney admitted to practice in California. As a technology writer since the mid-1980s, Richard Koman has documented the role of computing in the transformation of the graphic arts, the growth of the Web and the birth of the peer-to-peer phenomenon. He worked as a book and web editor for O'Reilly Media throughout the 1990s, editing several influential websites and numerous best-sellers. As a lawyer, as well as a tech writer, he brings a unique perspective to the blog's intersection of law, government and technology.

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Stronger than you think
medezark@... 3rd Dec 2009
The legal argument is basically that Comcast had requested a precedent be set in a previous case that it was not subject to state or local law or oversite where telecomunications and network management were concerned BECAUSE the FCC had jurisdiction. The original court ruled that they were correct in that regard.

Thus Comcast had avoided one courts jurisdiction and judgement by claiming another entity had actual jurisdiction. They can not now claim that the same oversite is NOT under the FCC's jurisdiction. That's like telling your Mom not to spank you because you broke your Dad's rule and then saying you're not subject to Dad's punishment. You know what happens then? Your Dad either doubles your punishment or shows you the door.

Throttling of bit torent or any other internet traffic is interference in communication. Thus it falls under the FCC.
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Not surprising..
JT82 24th Sep 2009
They got caught with their hand in the cookie jar and now want to deny it. So of course they will change their tune when any type of action is taken. Comcast needs to be strung up from the tallest tree and hung for the world to see. I must say their business class service is worlds better than their residential service, but it still has its issues. Comcast should have just played fair to start, taken their beating and moved on.
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Wow this opens the door for a smackdown. Little like the chaney arguement.
Been_Done_Before 24th Sep 2009
Pretty sure they can use the first arugement, however the second one will not fly.

Either way, they fully deserve the sanctions for their actions and i hope it serves as a message to the rest of the ISP's, dont F**K with your customers if you are a monopoly.
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FCC has a weak legal argument
Takalok 24th Sep 2009
What if the FCC argued it's regulatory power allowed it determine salaries, product offerings, where a physical building is located?

Duh. Just because Comcast is a regulated entity, doesn't mean every aspect of its operations is within the jurisdiction of the FCC.

I realize it's a nuanced concept, but it's not that hard to grasp.
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You have a weak legal argument
JT82 24th Sep 2009
Its obvious that is outside their purview. What is in their purview is to regulate how (in this case Comcast) they "manage the network" and it was seen as discriminitory and arbitary - which under interstate commerce - rules would apply. Further, the FCC never claimed they have 'unlimited' powers - not sure where you got that from.
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Argument is more complex than you're allowing
Takalok Updated - 24th Sep 2009
To say that Comcast is "contradicting" itself because on the one hand they admit they are subject to regulation, but on the other, they claim the FCC is overreaching regarding network management is ridiculous.

Should the FCC regulate wither Comcast can mitigate DOS? If you disbelieve Comcast when they say they were shaping traffic for the benefit of all, so be it. I can see however, how P2P network traffic can bring a network to it's knees.

Ah, but our wonderful, munificent government knows better doesn't it. And we should all make sure we check withe FCC before crossing the street, shouldn't we.

Excuse me while I go puke.
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The contradiction
rkoman@... 25th Sep 2009
I'm having a hard time understanding the puke.
Does it mean that anytime a company objects to
agency regulation you feel sick? Because your
statement of the contradiction seems perfectly
legit. It seems like a contradiction to me.

How does the idea that the FCC should be able
to sanction Comcast for throttling users =
crossing the street, or where to put a
building? I get that you think they can control
their network as they wish, but the ultimate
question of whether this is right or wrong is
not at issue. The FCC made its finding about
that. The question is MAY the FCC make a
finding? Comcast says no, but the argument is
self-contradictory, not to mention clearly
wrong under the ancillary powers.
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a weak legal argument
twaynesdomain 24th Sep 2009
You're right, it's a weak legal arguement, but I'm not sure it was intended to be a legal arguement at all but was more to show the typicality of how many try to bend any situation to their own purposes, regardless of what they said/did "yesterday". I suppose it could be argued that such-and-such changed their mind, but I think the more important point is how people have taken Comcast's convenience of twisting an arguement to their own benefit, regardless of what they previously said and did. That kind of attitude is rampant today.
In the end, it's a failure to learn from history, a willingness to repeat history, be damned what the lessons were, they don't care.
Like you, I don't recall the FCC ever claiming to have unlimited powers either; it's another twisting of the facts to poison people's minds and memories in the desired direction.
In a past life I spent a lot of time dealing with the FCC and for the most part can support most of their actions, I disagreed/disagree with this one because it seems to be a case of dnying the owner of a piece of equipment to do with it as he wishes. Comcast had the choice of either picking up its ball and going home, or caving to the FCC mandated path. It's a case where, since I own the equipment, and can do pretty well what I wish with it, the FCC will put me out of business by forcing me to accept torrents (or whatever else comes to the fore that would ruin me tomorrow but was OK yesterday when I set everything up). Is the FCC going to protect me from bankruptcy? I doubt it. So I'll be out of business either way. Therefore, it's a very dangerous precedant to be setting IMO. This is another case of a near-criminal willing to fight the bully who barely knows the buzz-words, let alone the reality of life.
It couldn't have lasted, but I still wish the days of Bill V.A. had lasted longer than they did. He was abrupt, even a little crude, but he was never wrong once he finally made a decision. When he argued, he didn't use rationalization as his tool but instead used mostly verifiable by anyone, cold, hard facts. He knew well how to read a regulation's content, intent and application. "Intent" of the regulations has gotten lost in the mud.
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I will agree with you the day Comcast is not a monopoly in my area
terry flores 28th Sep 2009
Until then, when I have the option to freely choose between broadband carriers and the ability to drop Comcast when I believe they have defrauded me, I fully support the FCC having the ability to regulate common carriers like Comcast.
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Stronger than you think
medezark@... 3rd Dec 2009
The legal argument is basically that Comcast had requested a precedent be set in a previous case that it was not subject to state or local law or oversite where telecomunications and network management were concerned BECAUSE the FCC had jurisdiction. The original court ruled that they were correct in that regard.

Thus Comcast had avoided one courts jurisdiction and judgement by claiming another entity had actual jurisdiction. They can not now claim that the same oversite is NOT under the FCC's jurisdiction. That's like telling your Mom not to spank you because you broke your Dad's rule and then saying you're not subject to Dad's punishment. You know what happens then? Your Dad either doubles your punishment or shows you the door.

Throttling of bit torent or any other internet traffic is interference in communication. Thus it falls under the FCC.
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RE: FCC: Comcast contradicts itself in claim agency has no power over it
none none 24th Sep 2009
Comcast argued exactly the opposite in an earlier case and so should be ?judicially estopped? from making the counterargument here.

I don't think the FCC will prevail on this claim.

I remember a few years back there were separate trials for two men who committed a holdup and someone was killed. The prosecutor, trying to get the maximum sentence for each robber, argued to each jury that the defendant they were trying was the gunman - and won convictions in both of them.

So, clearly, mutually exclusive legal arguments made by the same party in two different cases are OK in our legal system.






happy
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RE: FCC: Comcast contradicts itself in claim agency has no power over it
skillsss 27th Nov 2009
Comcast Censoring Conservative Voices?
by skillsss

The American Public and the FCC need to keep an eye on ISPs. Comcast has been censoring conservative message board posters in my opinion. Because dominant ISP Comcast is a gateway to the internet, they control many eyeballs. Comcast's systematic censoring of conservative opinions on their News & Current Events message boards needs to cease and desist. If Comcast gets tax breaks from local government, then they have a civic, ethical, moral and perhaps legal obligation to provide fair and balanced moderation of their message boards. This type of social engineering is an outrage. Please get involved. Silence is consent. Post a conservative response to a News or Current Events thread here and see for yourself.

http://community.comcast.net/comcastportal/board?board.id=news

This is America...Not CHINA
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You have options
doug.hanchard@... 27th Nov 2009
I didn't write this original post by Richard Korman. Here are my comments and suggestions.

The forum you're referring to is run and operated by Comcast. Comcast has the right to moderate its own forums and not be in violation of any regulations if appicable. In this case, the FCC would not have jurisdiction.

If however you believe they do have juridiction, you can complain directly to the FCC.

But before you do, I would suggest you review Comcast's Terms and Conditions on using the Comcast Forums. I did read them and would suggest there are sections (which you agree to if you wish to use their news forum site) that allow them to remove posts for a variety of reasons based upon the rules they have published.

Among them are:

Section 9
Do not campaign. Please do not use the Community to stage a campaign, spam, or advertise for a candidate, policy, law, or ideal. There is a fine line between informing and campaigning. We ask all users to stick to the former.

Section 10:
Do not post controversial topics. There are some topics that have proven themselves to be too controversial. These topics tend to degrade into flaming and have a negative effect on the community. Please note that discussion of religion is not permitted here. Other topics may include, but are not limited to, politics and race based discussion. The moderating team may restrict discussion of these topics at our discretion, especially when a thread is getting out of hand. Please try to avoid these controversial discussions wherever possible.

You do not have to abide to these terms by simpy not using that news forum. Other web providers have forums which do not have such restrictions or rules and I would suggest you use those.

Where the FCC would have possible juridiction is if Comcast restricted access to websites outside of its operating management and are compliant to State and Federal law.

Other agencies would also be potentially involved in the scenario I just outlined and you correctly may have a case suggesting you have been censored by an organization that does not have the mandate or juridiction to do so.

You also have other avenues such as the Federal Justice Department with respects to specific constitutional rights you (and everyone else in the U.S.) has. Clearly what immediately comes to mind is the 1st Amendment. But that doesn't always apply when a website has clearly written rules and you agree to abide to them prior to using that providers service.

Legal Scholars have been debating the scope and depth of the Amendment for decades and often previous cases that were once thought to be automatically covered by the 1st Amendment are not, and the Internet is now a new ground that is just now becoming a new frontier before the courts. As I just finished writing in a new series about the courts, it will eventually work its way through the system and is likely to either clarify what is and is not covered under the 1st amendment. To learn more about your rights, an excellent resource to use is Google's new Scholar section, which contains every Constitutional case that has gone through the U.S. Federal Courts.

http://scholar.google.com

Then type in 1st amendment and from there you can navigate articles, legal opinions, etc.. It's one of the best legal resources Google has ever published for the public.

Doug

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