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

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?"