Patricia Resende, newsfactor
On Friday, the FCC ruled that Comcast had been monitoring and blocking subscribers' use of peer-to-peer file sharing, specifically with BitTorrent P2P software.
Two of the three commissioners, Republicans Robert McDowell and Deborah Taylor Tate, said the FCC's decision against Comcast was based on unclear rules and voted in favor of Comcast. McDowell said the FCC does not have any rules in place governing an ISP's network management.
But FCC Chairman Kevin Martin, who voted against Comcast, said the Supreme Court recognized the FCC's power to enforce its policies under its ancillary authority based on Internet policy adopted in 2005. The FCC policy says Internet users have the right to use legal Web applications, services and devices of their choice.
Comcast Considers Legal Options
Comcast said it will comply with the FCC's ruling and provide the agency with an outlined plan of its network-managing practices. But Comcast added it does not believe the FCC has the legal right to control management of its network. "There were not formal rules in this area, so the basis for action they are taking may be questionable," said Sena FitzMaurice, a Comcast spokesperson.
The FCC has not yet issued its official order and it may be days, weeks or even months, according to FitzMaurice. "There will be a lot of detail (in the orders) that we'll need to examine before we know which legal avenues are available to us," she said.
Comcast insisted it did not block subscribers' access to Web sites and applications and did not stop subscribers from using P2P services, but was merely managing the network during times of congestion. Comcast also said it would work with BitTorrent, Pando Networks, and Vonage to address network-management issues.
Mediator, Not Enforcer
The FCC's decision may open up the Internet to new regulation. Companies offering broadband services may have to seek permission from the FCC to add new network plans and therefore place restrictions on what is ruled as a free and open Internet.
Tate said stopping broadband operators from managing their own networks for any reason beyond spam and viruses would be too broad and should be addressed by the companies in the industry. She said the FCC should act as a mediator rather than an enforcer.
"In our view and our ideal world it would be nice to see some congressional legislation that spells out clearly what the authority is," Sohn said. "We are concerned that a broad assertion of FCC jurisdiction could essentially suggest that the agency has authority without any clear guidance and limits to regulation of broadband and Internet matters."
ISPs have fought against regulation that would stop the companies from managing their networks because of the billions of dollars expended.
Several other ISPs, including Verizon Communications, AT&T and the Telecom Association, are in line with what Comcast is doing to protect its right to manage its network, and all released statements Friday saying the FCC's ruling only proves that there is no need for Congress to step in.
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