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August 19, 2009 9:48 AM

Comcast Asks Congress To Pass Net Neutrality Bill (Kind Of...)

While this news was a surprise to nobody, I still found myself shaking my head about it: Comcast is suing over the FCC's ruling against their treatment of P2P traffic.

This isn't surprising as there's been an argument brewing for a while that the FCC doesn't have the authority to deal with specific issues related to network management. Also, it's not like incumbent broadband providers to take any government ruling against them lying down. So in many ways it seemed inevitable that this P2P decision was going to go to court.

And yet I can't help but wonder about the timing. I'll admit some level of ignorance about what it takes to prepare for a lawsuit like this, but given that this decision came out a year ago that seems like an awfully long time to file a lawsuit.

Making matters worse is that Congress just introduced a new net neutrality bill a couple of weeks ago, worse for Comcast, that is.

I find it very strange that they've based this lawsuit on an argument that the FCC doesn't have the authority to regulate network management techniques at basically the same time as Congress gets another opportunity to pass a law that would specifically empower the FCC with these responsibilities.

If I were Comcast, I would've tried getting this lawsuit underway months ago, because now as it stands I can't help but feel like this lawsuit is bolstering the case for those in support of passing new net neutrality legislation.

I mean, don't they realize that by saying the FCC doesn't have the legal authority you're basically telling Congress that they need to take action to give them that authority? And they're doing so at the exact moment that Congress has a new net neutrality bill in their hands to consider passing!

So does that mean Comcast wants Congress to pass a net neutrality bill? It sure looks like it given the substance and timing of their actions.

In fact, assuming Comcast doesn't really want Congress to pass a net neutrality bill, I'm not sure why they didn't just keep their mouth shut about all of this. It seems like it'd be better to just deal with the P2P traffic shaping limitations then potentially open up the Pandora's box of new wide-ranging net neutrality legislation.

But the opportunity to keep this quiet has passed. Pandora's box is now open. And what happens as a result of this is anyone's guess.

All I do know is that if Congress needed another push to justify creating a new net neutrality law that puts this issue within the FCC's purview, well Comcast just gave it to them with a bow on top.

Also, as a quick add-on, notice how the FCC's first significant net neutrality ruling has been taken to court. One of my biggest fears is that whatever new net neutrality legislation we pass or regulations we create will end up ultimately being shaped by lawsuits. This seems like a very inefficient way to make policy, though, as it's going to waste a lot of time and money while also introducing a lot of uncertainty into this process.

Because of this I think we all need to be thinking seriously about trying to find ways to push the net neutrality ball forward in such a way that can be palatable to incumbents. This doesn't mean watering legislation down, but instead doing everything we can to work out our differences before anything's set in stone up on the Hill. I can't see it as a victory to have net neutrality legislation passed that just ends up stuck in the courts for the next decade.

Of course, this may be inevitable too, but we should at least be aware of this and have this reality inform our decision making moving forward. While we may need to protect consumer interests from the monopolistic tendencies of some broadband providers, let's see if we can do so without having to battle it out in the courts.

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Comments (1)

You're being naive thinking that negotiation before the fact will help. Look what happened with the '96 telecom reform. The Telecoms lobbied to the max to get their tax breaks with so many loopholes written into them that why anybody expected that "broadband to every home" network to be built is beyond me. They were given what, in essence, was a license to steal from the US taxpayer. Then they knocked down Local Loop Unbundling through the court system in many regions. And here we are.

The ONLY way to ensure that this does not end up a disaster in court is to write the law in such a way that it gives the telecom and cable company legal eagles as little ammunition as possible for future court battles. The LLU language in the last Telecom legislation had a HUGE loophole in it when language tying it to "competition" levels was put in. There were lots of other loopholes slipped in by lobbyists via their pet congresscritters. Unfortunately the same will most likely happen this time.

Posted by bj on August 20, 2009 7:33 PM

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