Order Against Comcast Network Management May Get Mixed FCC Reception
A finding that Comcast violated FCC net neutrality principles in a proposed order circulated Friday by Chairman Kevin Martin (CD July 11 p3) seems headed for a mixed reception among commissioners, said commission and industry officials. Of Martin’s four colleagues, Commissioner Michael Copps is considered the most likely to support a finding that the agency has authority to find the cable operator flouted a 2005 FCC Internet policy statement by blocking peer-to-peer file transfers, they said. Commissioner Jonathan Adelstein endorses net neutrality rules, but may prefer a settlement between Comcast and the Enforcement Bureau.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The four other commissioners are reviewing Martin’s draft order. They haven’t decided how they'll vote or what the FCC should do, commission officials said. Martin might be able to change the order to accommodate Adelstein and Copps, a communications lawyer said. Of the two Democrats, Adelstein is seen as the more open to the arguments of Comcast and other cable operators that the FCC lacks authority in this case, industry lawyers said.
Commissioners Robert McDowell and Deborah Tate seem the least likely to vote for the order, commission and industry officials said. The Republicans may think that the FCC can’t enforce a policy statement, which isn’t a rule, they said. Commissioners may hesitate to decide which technical practices constitute acceptable network management, said a communications lawyer. But no member clearly seems to be leaning a particular way on the order. An FCC spokeswoman declined to comment.
The commissioners may not vote on the order if Comcast and the bureau settle an inquiry started in January, a commission official said, noting that a settlement would make the proposed order moot. Comcast, previously hard-nosed, lately seems to have changed course and may consider settling the matter, which company executives are thought to have discussed with Martin on Friday, said commission and industry officials. The chairman said Comcast executives met with him that day (CD July 14 p6) but declined to say what they discussed. A company spokeswoman declined to comment.
A commission official said a consent decree with the bureau could have the same effect on Comcast as an order, barring the company from slowing or blocking downloads of some Internet files unless it treats all content the same. “While we continue to believe that the current network management technique implemented by Comcast was reasonable in light of available technology, we remain committed to replace that technique with a protocol-agnostic technique in all of the markets we serve by December 31, 2008,” the company said in an FCC filing Thursday.
In a consent decree, Comcast probably would agree to start treating all uses of its network the same, communications lawyers said. That course essentially would make an enforceable commitment of what the company has promised to do, they said. The FCC settled a case against Madison River Communications, accused of blocking certain Internet traffic, so there’s precedent for a consent decree between Comcast and the commission, said industry and FCC officials. A communications lawyer said a settlement is the likeliest outcome, but other attorneys disagreed. A decree would mean that Comcast wouldn’t sue the FCC, as the company seems sure to do if commissioners approve a finding against it, industry and commission officials said.
Comcast may be considering a decree because that would avoid an FCC finding that it violated the commission’s Internet principles and would make for better public relations, communications lawyers said. But settling could provide fodder to a pending class action suit against Comcast over its reported slowing of P2P transfers, said a telecom lawyer. And Martin might want the company to admit misconduct, something it’s unwilling to do, the attorney said.
Free Press General Counsel Marvin Ammori will be “shocked if Comcast would be willing to commit to a settlement that I would consider a consumer victory,” he said. His group’s complaint about Comcast and blocking is dealt with in Martin’s proposed order, the chairman said Friday. It cites the same seven statutes and cases as authorizing the FCC to act on the matter that Free Press did, a commission official said. “Comcast should have come forward a long time ago and admitted to what they were doing and asked for a consent decree then,” Ammori said. “This 11th hour attempt to settle doesn’t make sense.”