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No matter the FCC’s final decision on Comcast’s blocking of peer to peer traffic, litigation is sure to follow. Just for starters, Comcast doesn’t believe the FCC’s network neutrality principles are even legal in the first place.
In a March filing with the FCC, Comcast Executive Vice President David L. Cohen wrote, “It is settled law that policy statements do not create binding legal obligations. Indeed, the Internet Policy Statement expressly disclaimed any such intent.”
Which is exactly what Martin said almost three years ago when the FCC approved the statement that prohibits broadband providers from discriminating in the delivery of Internet traffic to customers, except for reasonable network management purposes.
Martin said at the time, “Policy statements do not establish rules, nor are they enforceable documents.” On other words, the policy is not the worth the paper it is written on.
Yet, there he was July 10, proclaiming Comcast guilty of network neutrality violations and calling for FCC sanctions against the nation’s second-largest broadband provider. There seems to be little question that he is correct regarding the facts, but does the FCC have a legal leg to stand on?
As Public Knowledge’s Gigi Sohn noted July 11, “This case is limited in scope to one company and to one type of behavior. Even if the Commission ultimately issues an order against Comcast, there is still a need for legislation to prohibit discrimination by telephone and cable companies while preserving the rights of Internet users and companies that do business on the Internet.”
This is, as they say in Washington, a case of regulatory uncertainty.
Network neutrality legislation is certainly not going to be approved by Congress anytime soon, and by its own admission the FCC has dubious legal authority to enforce its own rules and consumers; well, too bad.