FCC Declares Comcast in Violation of Non-Law

You may have heard that the FCC today ordered Comcast to cease and desist reducing the bandwidth available to peer-to-peer applications used by subscribers of its cable internet service. Comcast had claimed that P2P applications, which are of course primarily used to illegally share copyrighted media and child pornography share large files in completely legal ways, consume a disproportionate amount of network capacity.  However, the FCC Commissioners, in a 3-2 vote, were having none of it.

Now, Comcast didn't actually violate any federal rules or statutes.  Instead, according to the commissioners in the majority the company violated FCC "principles" about internet openness.  Adopted in 2005, those principles are:

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.13

• To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

Comcast asserted that these principles are, essentially, little more than vague platitudes and general aspirations about the way the online world should be and are not enforceable law.  Indeed, the company pointed out that at the time the principles were adopted in 2005 current FCC chairman Kevin Martin commented that they "do not establish rules nor are they enforceable documents." Comcast also noted that the FCC said at the time that the principles were "subject to reasonable network management."

One may be tempted to agree with Comcast's legal arguments about "due process" and such, but come on, do we really need that whole "rule of law" thing in such cases?  Instead of forcing the agency to take the time to think through and pass formal and specific rules thorough a defined policymaking process, or even worse rely on Congress to pass statutes (how 18th century), can't we just let the FCC make effectively ad hoc decisions about matters within its purview?  That's what the modern FCC is best at anyway.

 

Update/Clarification:

Just for the sake of completeness, the reason I didn't link to the FCC's actual Memorandum Order and Opinion ruling against Comcast is that the agency hasn't released it yet.  Instead, the Commissioners in the majority decided to formally announce their decision by, yes, issuing a press release.  One presumes that they will release an MO&O eventually, and I'll link to it when that occurs.